In New York, rape is treated as a violent felony. The elements of Rape include what the prosecutor must prove in order to find an accused guilty of the offense. For the defendant to be accused of Rape in the first degree:

1. He or she must engage in sexual intercourse with another person;
2. By forcible compulsion; or
3. Someone incapable of consent by reason of being physically helpless; or
4. Someone less than eleven years old; or
5. Someone less than thirteen and the actor is eighteen or older.

To understand the law, let’s consider the elements of the crime of Rape close in order to understand what an accused is up against.

Element #1: Sexual Intercourse

• While nearly every adult can define the act of “sex,” the courts have wrestled with various topics to determine what the legislature was referring to by enacting certain laws. Under New York law, the definition of sexual intercourse includes the “necessity of penetration.” This would relate to sexual organs, namely the mouth, penis, vagina, and/or anus.
• The Court in the Harse case discussed in depth what the legislature meant by “sexual intercourse” in the course of a sodomy case, where it was arguably unclear. It must be said that the length and extent of the sexual contact are not required to be proven, and has been held to include even “slight” contact.  People v. Harse, 98 Misc. 2d 188 (Suffolk County Court, 1979); Penal Law, § 130.00. “Slight contact” gives the courts broad discretion to interpret in favor of the prosecution.
• The sexual intercourse requirement is what you think it is, once there is some sort of penetration between the sexual body parts of two people.
• • For example, Pete begins to have sexual intercourse with his friend Ashley after a night of drinking. After a few seconds, he realizes she is unconscious and immediately stops, but the crime has been committed no matter how long it lasted or how “slight” the “contact.”

• Consent is critical in these cases, and the accused’s understanding of consent is at the forefront of many of the cases involving Rape allegations. While it is extremely important to have consent before participating in any sexual act, the societal questions regarding whether one draws the line remains.
• There have been instances of celebrities requiring willing participants to refrain from posting on social media and signing legally binding waivers prior to any sexual contact. Rape cases often turn on the prosecutor proving “lack of consent” while the accused proves that he or she did, in fact, have legal consent.  This often becomes a question of credibility that a jury must decide.

Element #2: Forcible Compulsion

• The definition of Forcible Compulsion is either the “use of physical force” (Penal Law § 130.00 [8] [a]) or “a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person” (Penal Law § 130.00 [8] [b]). Simply, the threat or use of actual force generally constitutes forcible compulsion.
• In the Hartle case, the court discussed the forcible compulsion “calculus”, where it weighed several factors, including the young age of the complainant, the relative size and strength of the complainant compared to the adult defendant, defendant’s close relationship to the complainant and position of trust and authority within the complainant’s family and the complainant’s state of mind, including her expressed fear of reporting.
• People v. Hartle, 2018 NY Slip Op 01515, ¶ 3, 159 A.D.3d 1149, 1152, 72 N.Y.S.3d 639, 643 (App. Div. 2018). Instead of relying on just one factor, the Courts balance these factors to determine whether the accused forcibly compelled the complainant to do something.
• Forcible compulsion could include a forcible demand for sexual intercourse under the Hartle case. If the complainant is scared, younger, and too timid to refuse, the court may deem the forcible compulsion requirement satisfied.
• • For example, a family friend asks the daughter of the family to have sex with him. She does not want to, but since he is trusted, older, and larger than she is, she does not resist. This would be considered Rape. In fact, forcible compulsion need not be violent under the People v Peraza, 288 AD2d 689, 691, 733 NYS2d 510 (2001) case.

• To take it a step further neither physical injury nor screaming or crying out is required under People v Alford, 287 AD2d 884, 886, 731 NYS2d 563 (2001).

Element #3: Incapable of consent by reason of being physically helpless

• The definition of being incapable of consent is very complicated and is frequently the subject of litigation.
• The phrase “physically helpless” refers to a person being unconscious or for any other reason unable to communicate unwillingness to act. Penal Law § 130.00 (7).
• • For example, a clear case of this helplessness would be an individual having sex with patients who are comatose in a hospital. There, consent would be lacking, and the claimant would be considered “physically helpless.”

• Hornbook legal treatises have noted that this definition even applies to a person in a deep sleep as a result of barbiturates or who is a total paralytic. To some extent, the definitions of mentally incapacitated and physically helpless overlap. See, The Donnino Practice Commentaries (McKinney’s Cons Laws of NY., Book 39, Penal Law art 130, at 573).
• “’Mentally incapacitated” is a similar phrase in that it refers to a person that is temporarily incapable of controlling their conduct owing to the influence of a narcotic or intoxicating substance administered without consent. Penal Law § 130.00 (6).
• • For example, in the case of Morales, a dentist administered numbing medication to several accusers. They were not able to freely consent to the activities that formed the basis for his criminal charges at trial. People v. Morales, 139 Misc. 2d 200, 202, 528 N.Y.S.2d 286, 287 (Sup. Ct. 1988)

• Being physically helpless or mentally incapacitated does not require any accuser to have a mental disease or defect. Once they are temporarily unable to give their free-will for a particular act, this requirement will be deemed satisfied.

Element #4: Age

• The legal requirements regarding age are self-explanatory.
• In some cases, the age requirement will affect consent. For instance, an individual who is 11 cannot consent to a sexual act with an adult.

Penalties for Violating Rape Statutes:

Rape is a felony in New York, no matter the degree. Potential penalties include:

• Rape in the Third Degree: (Class E Felony)
  •  Imprisonment up to 4 years

• Rape in the Second Degree: (Class D Felony)
  • Imprisonment up to 7 years

• Rape in the First Degree: (Class B Felony)
  • Imprisonment up to 25 years

What are some related crimes?

Forcible touching under Penal Code 130.52

Forcible touching is criminalized under Penal Code 130.52 and includes touching the sexual parts of another to gratify the accused’s sexual desire to abuse another. This misdemeanor occurs on public transit, including buses, trains, subways, and other forms of public or private. The purpose was to discourage squeezing, to grab, or pinching.

Sexual abuse under Penal Code 130.65 

The requirements for sexual abuse under Penal Code 130.65 are similar to rape except the sexual intercourse requirement is lessened to “sexual contact.” Sexual contact is a lesser form of offensive touching, including touching through the clothing of sensitive areas, including inner thigh and groin, with intent to abuse, humiliate, or arouse.

Aggravated sexual abuse under Penal Code 130.70 

Aggravated sexual abuse under Penal Code 130.70 involves the forcible insertion of a foreign object into the sexual organ of another person.

Predatory sexual assault 

Predatory sexual assault is reserved for repeat offenders and those who utilize a dangerous weapon, such as a knife or a gun, in the commission of the accusations. This is considered an A-II felony and carries a sentence up to a life sentence with a minimum of between 3 to 8 years.

Related Offenses

Charges of Rape may be brought in addition to, or in place of, charges for certain other related offenses, including:

Related Offense #1: Assault

• Assault under Penal Code 120.10 occurs when one intends to cause serious physical harm, the injury of the accused cause while using a dangerous instrument.
• Assault simply refers to unwanted contact. In this context, it involves something more violent, typically with a weapon like a gun or a shank.
• The court in the Murphy case discussed assault and rape. The court held that the crimes of assault and rape are separate and distinct offenses, that the assault charged was not a part of nor an essential element of the rape and that the assault did not merge in the rape.
• This is significant because under People ex rel. Tolbert v. Murphy, 25 Misc. 2d 647, 650, 204 N.Y.S.2d 460, 463 (Sup. Ct. 1960) the crimes do not merge. Separate convictions could mean consecutive prison sentences: longer jail time.

Related Offense #2: Kidnapping

• Kidnapping involves restraining someone and secreting or taking them away so that they cannot be found. Abductions, even temporarily, are considered kidnapping.
• There is an interesting affirmative defense to kidnapping, which was discussed by the Court in People v. Leonard, 2012 NY Slip Op 4206, ¶ 1, 19 N.Y.3d 323, 325, 947 N.Y.S.2d 821, 822, 970 N.E.2d 856, 857 (2012):
  • The defendant was a relative of the person abducted
  • His sole purpose was to assume control of such person. Under these circumstances, a defendant may actually not be guilty of kidnapping.

• Again, the discussion of “consent” is paramount in these cases. A family member could technically “kidnap” another family member if they do not have the authority to take them away.

Related Offense #3: Robbery

• Robbery in the first, second, or third degree is considered a felony. Robbery in the third degree involves forcibly stealing property.  Second-degree robbery adds the elements of including another defendant involved in the crime or participating in an additional crime during the commission of the crime or in immediate flight from the crime scene.

This often happens when a third party is injured while the accused attempts to flee the scene. Robbery in the first degree is the most serious category of robbery crimes and involves a deadly weapon or serious personal injury.

• The charging of rape and robbery could also lead to additional charges, including attempted sodomy, criminal possession of a weapon, and sexual abuse.

Related Offense #4: Statutory Rape

• The Rape law in New York, it is important to understand Statutory Rape law and how it operates under the law.
• Under Penal Law §130.35, Second Degree Rape involves sex with a minor under age 15 years and an accused of at least 18 years unless the defendant is less than 4 years older than the minor.
• This gets a little confusing. A 14-year-old freshman in high school and an 18-year-old senior at the same high school may not have sexual intercourse under this law, regardless of consent.
• It is worth reiterating that statutory rape is a crime regardless of consent. It is considered a “strict liability” crime, so the mental status of the defendant is not necessary to be established by the prosecutor. In other words, there is one less barrier that the prosecutor has to overcome to secure a conviction.
• The defense of “mistake of age” is not a valid legal defense to a strict liability charge of statutory rape.

What puts a person or entity at risk of prosecution?

Being accused of rape is a serious matter, arguably more so than other crimes because you are tried in the court of public opinion before ever making it into a courtroom. Every defendant is entitled to be considered innocent until proven guilty. That’s a constitutional right.

But when it comes to claims of rape, sexual harassment, or physical abuse, the accusations themselves are sometimes just as damaging to a person’s reputation as the conviction, or sentence, itself. If someone has accused you of any type of sexual wrongdoing, it is critical to retain private legal counsel to protect your liberty and your best interests.

Retaining private counsel early into the onset of the investigation can mean the difference between being set free versus the stigma of a criminal conviction or registered sex offender status.

Example:

The following are examples of situations where charges of Rape may be filed:

• At a party, two young people drink alcohol and have sexual intercourse. The man, believing that he had consent, is accused of rape the morning after because the woman is arguing that she did not know what she was doing.
• A woman comes onto a man at a bar and has several drinks with him before they go home to sleep together. The next morning, he learns that she lied about her age – even though she had a fake I.D. which was used to enter the club.
• A woman makes a false rape accusation against an ex-boyfriend because she is angry that he has moved on and has a new girlfriend, wife, or family.

What is the federal statute(s) related to Rape? 

Under federal law, the term “Rape” is instead grouped with other non-consensual sexual acts under chapter 109a of the United States Code (18 U.S.C. §§ 2241–2248).

The severity of the conviction is extremely serious under federal law, with prison sentences ranging from probation and a fine to life imprisonment. Some examples of the crimes considered non-consensual sexual acts include:

• Sexual abuse of a minor
• Abusive sexual contact
• Aggravated sexual abuse
• Sexual abuse

Federal Bureau of Investigations (FBI) Definition

The most recent Federal Bureau of Investigations (FBI) definition includes any penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim, including attempts or assaults to commit rape.

The law also considers incest, illegal pornography, and statutory rape as related offenses, with charges against children involving some of the heaviest sentence possibilities.

What are some of the essential and impactful cases? 

DNA CASES

The impact of DNA on rape cases is changing the landscape for rape law in general. In the past, many of these criminal cases were decided based upon circumstantial evidence and testimony.

With new advances in DNA, the ability to exonerate a defendant with clear, objective evidence is unlike any other time in history. Equally true, defenses of “mistaken identity” are being eliminated by the advent of DNA and the reliance in the scientific community upon the data furnished by DNA testing.

In Tookes, the Court discussed the statute which permits DNA testing for any Rape conviction prior to 1996 once the Court evaluates the threshold question:

1. If a DNA test had been conducted, and if the results were admitted in the trial resulting in the judgment, would there exist a reasonable probability that the verdict would have been more favorable to the defendant? (CPL 440.30 [1-a])
2.  If the answer is affirmative, then DNA testing may go forward as a matter of statutory law. See People v. Tookes, 167 Misc. 2d 601, 606, 639 N.Y.S.2d 913, 916 (Sup. Ct. 1996).

MARITAL RAPE

A notable court case in this area of criminal law is the Liberta case. Prior to Liberta, a man could technically ‘rape’ or ‘sodomize’ his wife without repercussion. That was because “female” was defined as a female that was not married to the actor or accused.

In Liberta, the Court reexamined the statute and determined it was under-inclusive. As a result, the statute was interpreted to include married females. People v. Liberta, 64 N.Y.2d 152, 158, 485 N.Y.S.2d 207, 209, 474 N.E.2d 567, 569 (1984)

What agencies detect, investigate, and prosecute this crime?

In New York, the NYPD has noted that while overall crime is down across the city, more rapes are being reported now than previously. As a result, there is an increase in the Special Victims Unit that investigates rape cases.

In addition to the SVU, there are a number of watch groups and community organizations that focus their energy on sexual assault investigations, including the Campus Sexual Assault Victims Unit, Safe Horizons, New York City Alliance Against Sexual Assault, and others.

With the rise and spread of the #MeToo Movement, rape cases are given more attention now than ever before in history. Generally, the police department is the primary agency charged with investigating accusations of Rape.

What are the Sodomy crimes? 

Sodomy crimes are similar in that Sodomy in the Third Degree (Class E Felony) carries a maximum imprisonment sentence of 4 years; Second Degree Sodomy (Class D Felony) has a maximum of 7 years; and First Degree Sodomy (Class B Felony), which is considered a “violent crime” carries a maximum penalty of also 25 years.

The Court also has the discretion to require the mandatory payment of fines for certain felonies. The sentence cannot exceed $5,000 for a felony or double the amount of the defendant’s gain from the commission of the crime.

Sentencing Enhancements

The penalties for Rape are more serious depending upon the circumstances, specifically eh violent nature of the actor’s alleged conduct.

Specifically, defendants face heightened penalties if:

• The commission of the crime involved multiple assailants;
• The defendant has a prior criminal history, specifically a prior history of violence or rape-related charges;
• Whether the charges are subject to State or Federal jurisdiction;
• The severity of the attack;
• The extent of the injury to the victim;
• Serial nature of the offense;
• Violent nature of the act, especially in consideration of violent weapons, such as knives, guns, or chemical agents, like Chloroform or Rohypnol.

If your case falls into one of these categories—and you knew or reasonably should have known that they did—then the maximum sentence can increase subject to the court’s discretion

What are some of the additional consequences of being convicted? 

Rape cases are unique in that any person that has sexual intercourse can technically be accused of a rape offense. The key element is consent.

With the rise of social movements empowering women and other historically marginalized peoples to voice allegations in an open and receptive legal environment, the likelihood of tougher sentences and longer prison time resulting from rape trials is much higher than in years’ past. The consequences of being convicted are the following:

• A felony conviction is especially daunting. An individual is tried first in the court of public onion, especially including social media, depending upon the popularity of the case. A felony conviction is the type of conviction that will follow you forever, regardless of your rehabilitation. This could affect future business prospects, career opportunities, and even schooling arrangements.
• The effects of registering as a sex offender mean that your personal life, including your love life and family life, will likely be significantly impacted by the ‘sex offender’ label. This conviction can become public knowledge with a brief Google search of your name and details.
• Once convicted of a sex crime, your residency options will be restricted to living within certain distances from children, including schools, playgrounds, and other similar areas. Child custody can become an issue if you have children. Employment opportunities will be reduced. Prejudice often exists without the knowledge of the underlying facts – some people will hate you without knowing a thing about you, other than you are a Registered Sex Offender.

History of Rape Charges

The crime of Rape has been criminalized for centuries. At common law, the most basic definition of Rape was the carnal knowledge of a female forcibly and against her will. Over time, the law has changed and evolved. While the accused of a rape charge may be a man or a woman, the essence of the crime remains the same: lack of consent.

In this area of the law, the breadth and reach of the prosecutor have broadened to protect more complainants and to prosecute more of the accused.

Legal Defenses to Rape

Rape charges are some of the most daunting to face because of the stigma involved with the offense. It’s far different from the way defendants are treated in marijuana sales cases or music piracy matters.

People may start to associate you with this crime, even though they do not understand the specifics of your case. If you believe you are entitled to a full, zealous, and comprehensive defense you should contact personal, private defense attorneys who can work with you to resolve your case according to your needs.

There are some powerful defenses they may help you to escape criminal culpability:

Defense #1:

• The first defense is no penetration. For a rape case to stick, it must be proven that there was penetration.
• The trial court in People v. Berardicurti, 167 A.D.2d 840, 841, 561 N.Y.S.2d 949, 949 (App. Div. 1990) instructed jurors that to constitute sexual intercourse, penetration “need not be deep” and that “[any] penetration of the penis into the vaginal opening, regardless of the distance or amount of penetration” constitutes sexual intercourse. Though graphics, this paints a picture of what constitutes “penetration” versus “non-penetration.”
• For example, the separation of the victim and actor’s bodies by clothing would likely negate the “penetration” requirement required by law.

Defense #2:

• The second defense is the wrong identity defense or the alibi defense. “It wasn’t me, because I wasn’t there.” An alibi is an evidence that a criminal defendant was elsewhere when the rape occurred.
• The alibi defense is subject to extreme judicial scrutiny. The jurors will have to weigh the credibility of the respective parties and determine who they find credible.
• Take, for example, the case where the accused produces two alibi witnesses to support the defendant’s version of the alibi. Those alibi witnesses will be subject to intense scrutiny and cross-examination. The jury may ultimately choose not to believe their testimony.

Defense #3:

• The third defense for Rape is consent. This is the most important element because it could make or break your case, and is very frequently alleged by the defendants.
• In People v. Dohring, 59 N.Y. 374, 384 (Court of Appeals 1874), the court discussed the issue of consent. Ultimately, the Court held that if consent, though not express, enters into the accuser’s conduct, there is no rape. The yielding to overpowering force is submission, but not consent; if the force is short of that, there may be consent, or the act may not be against her will.
• This considers the romantic interest of the parties and the preferences that individuals may have with regards to their choice to engage in intercourse.
• For example, a celebrity has a fan sign a waiver before they sleep together. The waiver is a legal document that memorializes their consent in writing.

Defense #4:

• The fourth issue to discuss is not a legal defense for the defendant, but an additional tool that prosecutors have: the rape shield law. New York’s rape shield law was passed in response to concerns that testimony about the sexual past of the victims of sex crimes often serves solely to harass the victim and confuse the jurors.
• Accordingly, the statutes put to rest the now-discredited rationale that a victim’s past “unchastity” is probative of present consent and recognized that such evidence is typical of little or no relevance and may seriously prejudice the prosecution of sex crimes. This proposition was discussed in detail in People v. Williams, 81 N.Y.2d 303, 312, 598 N.Y.S.2d 167, 170, 614 N.E.2d 730, 733 (1993).
• As such, your case must avoid making issues out of the claimant’s alleged promiscuity, no matter how forthcoming it may have appeared. Past lovers, provocative clothing, and promiscuous histories must all be treated very lightly and with dignity.

Why should you hire an experienced attorney? 

Hiring the wrong attorney to defend you in a Rape case can be devastating. Based upon the nature of the crime and the serious repercussions, this case could be the difference between a life of freedom and a life spent incarcerated.

Depending upon your goals, an attorney at the firm may be able to assist you with negotiating a favorable resolution or strategizing your top goals to accomplish at trial.

Call up for help. 

Call now for more information. Attorneys are standing by to provide you with an initial consultation. For more questions regarding Rape laws in New York or its surrounding areas, please contact us to discuss your case confidentially with one of our criminal defense attorneys. We have local criminal law offices in your area.