NY Penal Law § 130.30: Rape in the Second Degree

You will be charged with the sex crime of rape in the second degree under New York Penal Code section 130.30 if you are 18 years old or older and you engage in sexual intercourse with a child who is youngerthan 15 years old, or, regardless of your age, if you engage in sexual intercourse with an individual who is unable to consent due to a mental disability or incapacity. This offense is a class D felony.

For Example

A man presents himself to a drama student as a talent agent. He invites her to come to his hotel room to read lines from a script. While she is there, he serves her a glass of wine. Unbeknownst to the student, the man placed some ecstasy in her wine. She woke up later  naked in the defendant’s bed at his hotel and came to the realization that he had engaged in sexual intercourse with her. That man could face prosecution for rape in the second degree because he engaged in sexual intercourse with the student while she was intoxicated from the ecstasy. Because she was intoxicated, it can be said tthat she was mentally incapacitated and did not have the ability to consent or decline his advances. The man could also be charged with the crime of facilitating a sex offense with a controlled substance under New York Penal Code section 130.90.

Offenses that are Related

Aggravated sexual abuse in the third degree: New York Penal Code section 130.66

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

Criminal sexual act in the second degree: New York Penal Code section 130.45

Course of sexual conduct against a child in the second degree: New York Penal Code section 130.80

Facilitating a sex offense with a controlled substance: New York Penal Code section 130.90

Possible Defenses

If you can demonstrate that consent was given by the alleged victim to engage in the sex act, then you cannot be prosecuted for rape in the second degree. 

Also, alghtouhg under the statute if you are at least 18, a child under the age of 15 does not have the legal capability to consent to having sex with you, prosecution is not possilble if there is less than a 4 year age difference between you and the other indivicusal .

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The Sentence

Legal Scenario: What Would You Do?

Scenario

A 19-year-old college student discovered that the person he had been dating and who told him she was 17 is actually 14 years old. He is now facing charges under NY Penal Law § 130.30 for rape in the second degree, even though he believed the relationship was consensual.

Can I use the defense that she lied about her age and I genuinely believed she was older?

Attorney's Answer

Under NY Penal Law § 130.30, rape in the second degree is a strict liability offense when it involves sexual intercourse between someone 18 or older and a person under 15, meaning mistake of age is generally not a valid defense in New York. This charge is classified as a Class D felony, carrying a potential sentence of up to 7 years in prison and mandatory sex offender registration under SORA. However, an experienced defense attorney can examine whether the evidence actually supports every element of the charge and explore whether any procedural errors occurred during the investigation. We would also evaluate whether negotiation for a reduced charge or alternative sentencing options may be appropriate given the specific circumstances of your case.

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

Since rape in the second degree is a class D felony, if convicted, the judge hs the ability to sentence you to up to 7 years in prison. Because it is also classified as a violent felony offense, the minimum sentence is 2 years behind bars. A portion of your sentence may also be a 10 year probation term.

Registration as a Sex Offender. Additionally, you will be required to register as a sex offender under New York’s Sex Offender Registration Act (SORA). You will be required to follow the registration rules for a minimum of 20 years and perhaps for the rest of your life.