Third Degree Rape: New York Penal Code § 130.25

New York Penal Code § 130.25 states that third degree rape exists if a person committed any of the following:

• Had sexual intercourse with a person who is not able to give consent,
• Had sexual intercourse with a person who is younger than 17 years of age when the person is 21 years of age or older, or
• Had sexual intercourse with a person who did not give consent to the act.

Even if the person appeared to have given consent, if that person is not legally able to give consent, then one could infer that there was no consent, and a charge of third degree rape would be levied. Further, by law, a person who is younger than 17 years of age and is mentally disabled, mentally incapacitated, or physically helpless is not able to give consent. Finally, if a person had not given consent to sexual intercourse, then the legal inference would be that the act was forced on the non-consenting person.

Suppose a 30-year-old man meets a 16-year-old teenage girl at a mutual friend’s party. The two have sexual intercourse that same evening, continue their intimate relationship after the party and engage in sexual intercourse on a regular basis. Even though the adult man did not appear to have forced the under-aged teenage girl to engage in sex with him, he still could be accused of committing third degree rape because the girl was under 17 years of age and legally unable to give her consent to the sex act.

One line of defense could be to prove decisively that consent to the sex act was given. If evidence of consent can be produced, then a conviction of third degree rape cannot be upheld. The prosecuting attorney must prove that consent was not given for sexual intercourse to have a third degree rape case stand up on court. The absence of consent for sexual intercourse is a pivotal component for the charge of third degree rape or any sex crime.

Another line of defense could be to take advantage of the legal time limit for filing a case. The legal time limit for filing a case is the length of time within which a prosecutor must file criminal charges against a person. The legal time limit for third degree rape is five years. For example, if a person has been accused but not prosecuted for third degree rape within five years from the commission of the purported sex crime, the case will not go to trial and prosecution, then, becomes a mute point. One caveat is that if the person who is accusing you of third degree rape is younger than 18 years of age at the time of the purported sex act, then the statute of limitations period of five years does not start until that person becomes 18 years of age or until the illegal sex act was reported to the police.

The maximum sentence a judge can levy against you if you are convicted of third degree rape is four years in prison. If you do not have a previous criminal record and you are a first time offender, the judge may exercise leniency and give you a lighter sentence, taking into account the facts of the case and any attenuating personal characteristics and qualities. If the sentence also includes a period of probation, the mandatory time is 10 years as third degree rape is not only a felony but a sex crime. Further, registration as a sex offender under the New York Sex Offender Registration Act is required with a conviction of third degree rape.

To reiterate, a person may be charged with third degree rape when that person:

1. Has sexual intercourse with another person who is incapable of giving consent for a reason other than being younger than 17 years of age;
2. Is 21 years of age or older and has sexual intercourse with another person who is younger than 17 years of age; or
3. Has sexual intercourse with another person who legally has the capacity to consent but does not give consent to the sex act.

Because of the potential negative repercussions you will face as a result of being accused of third degree rape, you should contact an attorney who is experienced with defending people accused of or charged with rape immediately. In the criminal courts of New York, the legal team at Barry C. Weiss P.C. has extensive experience defending people accused of sexual crimes, including sexual abuse, sexual misconduct, criminal rape, forcible touching, sexual acts against a child, and using a controlled substance to facilitate a sex offense.

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

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

1. Sexual misconduct: New York Penal Code § 130.20
2. Third degree criminal sexual act: New York Penal Code § 130.40
3. Fourth degree aggravated sexual abuse: New York Penal Code § 130.65a