NY Penal Law § 130.35: Rape in the First Degree

Of the three rape charges coveredin the New York Penal Code rape in the first degree, a class B felony, is the most serious. You will be charged with rape in the first degree under New York Penal Code section 130.35 if you engage in any of the following acts:

Conduct sexual intercourse with an individual by forcible compulsion

Conduct sexual intercourse with an individual person who is physically helpless

Conduct sexual intercourse with an individual person who is younger than 11 years old

Conduct  sexual intercourse with a child who is younger than 13 years old and you are at least 18 years old.

Two Examples

A man puts a knife to the neck of a woman and demands that she take off her clothes. He then forces her to engage in sexual intercourse with him. This man could be prosecuted for rape in the first degree based on lack of consent, because by using the knife, he coerced the woman by threatening her with immediate physical harm or death.

at a party, a man meets a woman. Together, they drink alcohol and smoke marijuana. At some point the woman passes out. The man then has sexual intercourse with her while she is unconscious. The man could face charges of rape in the first degree since the woman was physically helpless when he had sexual intercourse withher.

Offenses that are Related

Aggravated sexual abuse in the first degree: New York Penal Code section 130.70

Criminal sexual act in the first degree: New York Penal Code section 130.50

Sexual abuse in the first degree: New York Penal Code section 130.65

Course of sexual conduct against a child in the first degree: New York Penal Code section 130.75

Possible Defense

Because the lack of consent is as critical an element to a rape charge as it is to all the sex crimes, an important defense is to prove that there was consent to the sexual intercourse.

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Sentence

Incarceration. The maximum sentence for a rape in the first degree conviction is 25 years in prison because pursuant to New York Penal Code section 130.35, it is a class B felony. Rape in the first degree is additionally classified as a violent felony offense. What this means is that if convicted, you would face a mandatory minimum sentence of 5 years behind bars.

Legal Scenario: What Would You Do?

Scenario

A college student has been arrested and charged with Rape in the First Degree under NY Penal Law § 130.35 after an alleged incident at an off-campus party where the accuser claims she was physically forced into sexual intercourse. The student insists the encounter was consensual but has already been questioned by police without an attorney present.

What am I facing with a first-degree rape charge in New York, and is there anything that can be done to fight this?

Attorney's Answer

Rape in the First Degree under NY Penal Law § 130.35 is a class B violent felony carrying a minimum sentence of 5 years and a maximum of 25 years in state prison, along with mandatory sex offender registration under SORA. The prosecution must prove beyond a reasonable doubt that sexual intercourse occurred through forcible compulsion as defined under NY Penal Law § 130.00(8), which requires proof of physical force or a threat that placed the victim in fear of immediate serious physical injury. Any statements you made to police without counsel present may be subject to suppression under your constitutional rights, and a thorough investigation into witness accounts, forensic evidence, and the circumstances surrounding the encounter can reveal critical inconsistencies in the prosecution's case. Given the severity of these charges, it is essential that you have experienced defense counsel who can challenge the evidence at every stage, from pre-trial hearings through trial.

This is general information only. Contact us for advice specific to your situation.

Probation. A 10 year probation term may be part of your sentence as well. For the duration of your term of probation you will be obligated to follow a set of strict rules, including regularly reporting to your probation officer.

Registration as a Sex Offender. You will also be obligated to register as a sex offender under New York Correction Law section 168, also referred to as the Sex Offender Registration Act (SORA). You will be required to follow the registration rules for a minimum of 20 years, and possibly for the rest of your life.