Second Degree Rape: New York Penal Code § 130.30

According to Penal Code § 130.30, second degree rape may be charged if a person is at least 18 years of age and has sexual intercourse with another person who is younger than 15 years of age, or if a person has sexual intercourse with another person who cannot give consent because that person is incapable of doing so or is mentally incapacitated. Second degree rape is a Class D felony.

To reiterate: New York Penal Code § 130.30 states that second degree rape exists if a person committed any of the following:

1. Had sexual intercourse with another person who is not able to give consent because they are incapable of giving consent or are incapacitated mentally, or
2. Had sexual intercourse with another person who is younger than 15 years of age when the person is 18 years of age or older.

Suppose a 30-year-old man met a female student who was an aspiring actress. He introduced himself as a talent agent and suggested that she audition for him by reading some lines from a script he had for an upcoming movie. The man invited the girl to his hotel room, and before she began to read her lines, the adult man served her a glass of wine that was laced with ecstasy. The student later woke up and found herself naked in the man’s hotel bed. She realized then that the man had had sexual intercourse with her. It is possible that the male could be accused of second degree rape because he had sexual intercourse with the student while she was unconscious and, thus, was incapacitated and could not give consent to the sexual intercourse. The adult man could also be accused of using a controlled substance to facilitate an illegal sexual act which is an offense according to Penal Code § 130.90.

One possible strategy of defense would be to prove that the sex act was mutually consensual, and that both parties gave consent to have sex. It must be proven that the other party gave consent and was not mentally unable or incapacitated at the time. If evidence can be produced that consent was given, then a conviction of second degree rape cannot be substantiated.

However, if one person who is at least 18 years of age has sexual intercourse with another person who is under the age of 15, by definition, that under-aged person cannot legally give consent to having sex, and therefore, there is lack of consent on the part of the child. The prosecuting attorney must prove that consent was not given for sexual intercourse to have a second degree rape case stand up on court. The absence of consent for sexual intercourse is a pivotal component for the charge of second degree rape or any sex crime.

Imprisonment. The maximum sentence a judge can levy against you if you are convicted of second degree rape is seven years in prison as it is a Class D felony. The minimum sentence a judge can levy against you if you are convicted of second degree rape is two years in prison.

Probation. A judge may also levy a 10-year probation term as part of the sentence for second degree rape.

Registration as a Sex Offender. Further, under the New York Sex Offender Registration Act, a person convicted of second degree rape must also be registered as a sex offender for at least 20 years and possibly the rest of the convicted person’s life.

Being accused and prosecuted of second degree rape are serious matters. There is the potential of profound negative consequences that will weigh heavily on the defendant’s future and that of his dependents. If you are accused of second degree rape, you should immediately contact an experienced attorney who has been successful in defending people accused of or charged with second degree rape. The attorneys and law clerks at Barry C. Weiss P.C. are not only extensively experienced in the nuances of the law pertaining to second degree rape but they are deeply committed to aggressively defending individuals accused of sex crimes, including sexual acts against a child, use of a controlled substance to take advantage of a victim sexually, sexual misconduct, sexual abuse, forcible touching, and criminal rape.

Contact our office by calling (212) 785-1300 or go online to newyorkcriminallawyer24-7.com to schedule a no-obligation, free legal consultative meeting to discuss the details of your case.

For additional information, refer to the following sections of the New York Penal Code:

1. Using a controlled substance to facilitate a sexual offense: New York Penal Code § 130.90
2. First degree sexual abuse: New York Penal Code § 130.65
3. Second degree criminal sexual act: New York Penal Code § 130.45
4. Third degree aggravated sexual abuse: New York Penal Code § 130.66