NY Penal Law § 13025 Rape in the Third Degree

You have committed the sex crime of rape in the third degree under the New York Penal Code section 130.25 if you act in any of the following ways:

• Conduct sexual intercourse with someone who was not capable of consenting to it,
• Are 21 years old or older and you engage in sexual intercourse with a person who is under the age of 17, or
• Conduct sexual intercourse with a person without that person’s consent

Absense of consent signifies that the sexual act was forced. Even if the other individual seems like they consented, if under the law that individual lacks the capacity to consent, then consent cannot be established and you could find yourself under prosecution for rape in the third degree. The victim ais said to be incapable of consenting if he or she is under 17 years old, suffers from a mental illness, suffers from a mental incapacity, or is physically disabled.

For Example

A 30 year old man meets a 16 year old girl at a party. Later that evening the two engage in sexual conduct. They continue a dating relationship and engage in sexual intercourse frequently over a period of time. Even if the man never physically forced the girl to have sex with him, he is still in commission of the crime of rape in the third degree due to the age of the girl – under 17 years old. Therefore, she lacked the legal capacity to consent to sex.

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Legal Scenario: What Would You Do?

Scenario

A 22-year-old college senior discovered that the person he had been dating and intimate with for several weeks was actually 16 years old, after she had told him she was 18. He is now terrified after learning that New York law may not recognize his honest mistake about her age as a defense.

Can I be charged with rape in the third degree under NY Penal Law § 130.25 even though I genuinely believed she was 18?

Attorney's Answer

Under New York Penal Law § 130.25(2), a person who is 21 or older commits rape in the third degree by engaging in sexual intercourse with someone under 17, and unfortunately, mistake of age is generally not a recognized defense to statutory rape charges in New York. This is what the law calls a strict liability element — the prosecution does not need to prove you knew the person's actual age. A conviction for rape in the third degree is a class E felony, carrying up to four years in prison and mandatory sex offender registration under SORA. You need an experienced criminal defense attorney immediately to examine every detail of your case, including potential challenges to the evidence, because the consequences of a conviction will follow you for the rest of your life.

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

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