Is Consent a Defense to Statutory Rape in New York?

Is Consent a Defense to Statutory Rape in New York?

Is Consent a Defense to Statutory Rape in New York?

Every day in New York City, teenagers and young adults who have clean records find themselves entangled in serious criminal charges related to statutory rape.  Unlike most other rape charges, where the victim is forced or assaulted into compliance with the offender, statutory rape often involves couples who had no idea they were violating the law.  New York sex offense attorneys at Sullivan and Galleshaw, LLP explain some important aspects of New York’s statutory rape laws, including the age of consent, how statutory rape is defined in New York, and some possible defenses to statutory rape charges.

What is the Age of Consent in New York?

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The age of consent is the age at which males and females can legally give permission to participate in sexual intercourse and other sexual acts.  Each state has its own laws on the age of consent, which ranges from 16 to 18 throughout the U.S.

In New York, the age of consent is 17 years, regardless of gender.  Once a boy or girl turns 17 years old, he or she may engage in sexual activities with other people who are above the age of consent without fear of anyone’s criminal prosecution.  Until then – even if it is mere hours before the boy or girl’s seventeenth birthday – sexual intercourse can potentially lead to statutory rape charges if either party is younger than 17.

What Are the Laws on Statutory Rape in New York?

The general definition of rape is non-consensual sex.  For example, under NY Penal Law § 130.35, one of the definitions supplied for first degree rape is “engag[ing] in sexual intercourse with another person by forcible compulsion.”  However, even if a person is not forced into sex and engages voluntarily, the other person can still potentially be charged with rape due to the way that consent is defined.  From a legal standpoint, there is a vast difference between someone being willing and someone granting consent.

To reiterate, New York’s age of consent is 17 years.  By definition, anyone age 16 or younger is considered legally incapable of granting consent, no matter how they might personally feel about the other person.  NY Penal Law § 130.05, which supplies a few definitions for lack of consent, explicitly states that “A person is deemed incapable of consent when he or she is less than 17 years old,” among other scenarios.

The question then becomes, are there any exceptions to this rule?  If consent is not a defense against statutory rape charges, can age be a defense when a defendant is charged with statutory rape in New York?

Does New York Have “Romeo and Juliet” Laws?

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Some states have “Romeo and Juliet” laws which are designed to grant legal protections to adults who are involved in sexual relationships with minors that are close in age.  Similar to Romeo and Juliet laws, New York’s rape statutes contain several exceptions or defenses that could apply when the defendant and victim are within a certain age range to each other. There are three different statutes we need to look at, as there are three different types of rape charges in New York:

  • Third Degree Rape (NY Penal Law § 130.25) – A person is generally charged with third degree rape when he or she “engages in sexual intercourse with another person who is incapable of consent [for reasons] other than being less than 17 years old.”  However, under another section of the statute, a person can be charged with third degree rape if he or she has sex with someone under age 17 and is at least 21 years old.  Because it is an element of the offense that the defendant is 21 or older, an 18-, 19-, or 20-year-old who has sex with a 16-year-old would not be charged with third degree rape.
    • “Criminal sexual act” is a lesser-known but similarly serious offense.  A defendant as young as 18 could be charged with a criminal sexual act in the second degree for “engag[ing] in oral sexual conduct or anal sexual conduct with another person less than 15 years old,” unless “the defendant was less than four years older than the victim at the time of the act,” which is an affirmative defense.  Additionally, a person who is 21 or older can be charged with a criminal sexual act in the third degree for “engag[ing] in oral sexual conduct or anal sexual conduct with a person less than 17 years old.”
  • Second Degree Rape (NY Penal Law § 130.30) – A person can be charged with second degree rape if he or she is at least 18 years old and has sex with a person who is less than 15 years old. However, the statute also establishes an age-based defense: “It shall be an affirmative defense to the crime of rape in the second degree… that the defendant was less than four years older than the victim at the time of the act.”
  • First Degree Rape (NY Penal Law § 130.35) – First degree rape is the most serious rape charge, and is charged only when either (1) the defendant uses force, (2) the victim cannot consent because he or she is “physically helpless,” (3) the victim is under age 11, or (4) the victim is under age 13 (if the defendant is at least 18).

Contact a NY Sex Crimes Lawyer if Your Son Was Charged with Statutory Rape

Aggressive representation is essential if you or your son or daughter has been charged with statutory rape, criminal sexual acts, or other sex offenses involving minors or adults.  Most of these offenses are felonies, but skilled representation may make the difference between having the case dismissed and being convicted, incarcerated, and required to register as a sex offender.

Do not wait to start reviewing your family’s legal options.  Sullivan and Galleshaw, LLP has experienced criminal defense attorneys that handle rape charges and other sex crimes throughout Queens, including but not limited to Arverne, Astoria, Bayside, Cambria Heights, Elmhurst, Flushing, Howard Beach, Jamaica, Kew Gardens, Little Neck, Long Island City, and Ozone Park.  Contact us immediately at (800) 730-0135 for a completely free and confidential consultation.