Rape Lawyer in NYC

New York Rape Laws Overview

There are 3 felony Rape charges in New York, ranging from a class B violent felony to a class E felony: Rape in the First Degree, Rape in the Second Degree and Rape in the Third Degree. Allegations of Rape involve sexual intercourse without another person’s consent. Under the law in New York, Rape charges may be brought for penetration, however slight the penetration may be.

Rape cases are highly fact specific. The evidence sought in Rape cases where the person charged and the complaining witness know each other and the person charged and the complaining witness are strangers can be somewhat different, but there is much overlap.

In Rape cases, the main issue is often whether consent was given. Rape charges must be defended aggressively and often depend on an attorney with experience defending sex crimes cases.

The successful defense of a Rape case in New York often hinges on the ability of a knowledgeable defense attorney to conduct a thorough investigation of the allegations.

A conviction of Rape charge carries significant consequences in New York that include a possible mandatory minimum prison sentence. In addition, a person may be required to register as a Sex Offender for life for certain convictions.

In addition, charges of Rape in New York are eligible for the Child Victims Act. Under New York’s Child Victims Act, a person who was less than 18 at the time of an alleged rape can sue until he or she turns 55 years old.

Degrees of Rape Charges in New York City


New York Consent Laws and Rape Charges

The three main elements to Rape charges in New York involve allegations of: sexual intercourse, Forcible Compulsion and/or Incapacity to Consent. As noted above, sexual intercourse means even the slightest penetration. But sexual intercourse does require some level of penetration.

If there is no penetration, then the Rape should not be the charge, but a person could be charged with an Attempt to commit Rape in any of the 3 degrees.

Forcible Compulsion and Incapacity to Consent are related terms. Under Penal Law Section 130.05(1), “Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.”

Forcible Compulsion in Rape Cases

New York has a specific definition of Forcible Compulsion that applies to Rape charges and other Sex Crimes. The question of Forcible Compulsion is often a fact specific question and depends on the nature of a person’s alleged acts and/or the words that a person allegedly used.

Under Penal Law Section 130.00(8) Forcible Compulsion means one of two acts:

  1. Use of physical force; or
  2. A threat, express or implied that places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.

First, the use of physical force, like the plain words, requires some level of physical force. The second act, a threat, has two elements. The first element is an explicit or implied threat. The second element is placing a person or a third person in fear of immediate death or physical injury or an immediate kidnap.

For an express or implied threat to fall under the definition of Forcible Compulsion, the express or implied threat must have both of these elements.

Incapacity to Consent

In New York, there are 10 different categories where a person cannot legally consent to sexual intercourse or any other sexual act under Penal Law Section 130.05(3). If a person falls under any of these 10 categories, then he or she is deemed incapable of consent.

The 10 categories for Incapacity to Consent are people who are:

  1. Less than 17 years old (known as the age of consent);
  2. Mentally Disabled (suffering from a mental disease or defect which renders a person incapable of appraising the nature of their conduct;
  3. Mentally Incapacitated (temporarily incapable of appraising or controlling their conduct due to the influence of a narcotic or intoxicating substance administered to the person without their consent, or to any other act committed without their consent);
  4. Physically Helpless (unconscious or for any other reason is physically unable to communicate unwillingness to an act);
  5. Committed to a state prison, jail or hospital and the actor is an employee, a person who performs certain professional services or a volunteer;
  6. Committed to a local prison or jail and the actor is an employee, a person who performs certain professional services or a volunteer;
  7. Committed to a residence by the state Office of Children and Family Services and the actor is an employee, a person who performs certain professional services or provides direct supervision;
  8. A client or patient and the actor is a health care provider or mental health care provider and the alleged act occurs during a treatment session, consultation, interview or examination, or the person is a resident or inpatient of a residential facility operated, licensed or certified by the state Office of Mental Health, the Office of People with Development Disabilities or the Office of Alcoholism and Substance Abuse Services and the actor is an employee, a volunteer, a person who performs certain professional services or provides direct supervision;
  9. A resident or inpatient of a residential facility operated, licensed or certified by the Office of Mental Health, the Office for People with Developmental Disabilities or the Office of Alcoholism and Substance Abuse Services, and the actor is an employee of the facility and not married to the resident or inpatient; or
  10. Detained or in the custody of a police officer, peace officer or other law enforcement official and the actor is either detaining or maintaining custody of the person or knows, or reasonably should know, that at the time of the offense, such person was detained or in custody.

Whether a person is incapable of consenting is often a fact specific question. Some of the categories of Incapacity to Consent require knowledge on the part of the person accused that the complaining witness in fact falls into the specific category.

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New York Sex Offender Registry

A conviction of Rape requires registration to the New York Sex Offender Registration list. The requirements of registration depend on a person’s designated level to commit a repeat offense:

  1. Level 1 (low risk of repeat offense)
  2. Level 2 (moderate risk of repeat offense)
  3. Level 3 (high risk of repeat offense and a threat to public safety exists)

Level 1 is the least risk to commit a repeat offense and the registration requirements are the least strict.

Level 1 registration is for a period of 20 years. Levels 2 and 3 have strict requirements and the registration is for life. However, a person assigned Level 2 may petition a court for relief after 30 years provided that he or she is not classified as a sexual predator, sexually violent offender or predicate sex offender (which is usually Level 1 status).

In New York, a person’s level of risk is determined by the trial court based on a Risk Assessment. Points are assigned to the Risk Assessment based on a person’s history and the crime. If the total Risk Assessment score is 70 points or less a person is presumptively assigned Level 1.

A person is assigned Level 2 for more than 70 but less than 110 points. Level 3 is assigned if a person scores more than 110. For example, a person is assigned 5 points if the touching was over clothing and 10 points if the touching was under clothing. Or if a person has a prior criminal history, but not a sex crime of felony, the person is assigned 5 points.

But a person is assigned 15 points for a prior non-sex crime felony. A person who has a prior felony sex crime conviction is automatically found to be to a Level 3.

Rape Shield Law in New York

New York’s Rape Shield Law prevents people charged with Rape from submitting evidence at trial of the “sexual conduct” of a complaining witness. Under Criminal Procedure Law Section 60.42, there are 5 exceptions to the Rape Shield that must be approved by a judge.

Importantly, the Rape Shield Law only applies to evidence at a trial, it does not apply to pre-trial motions.

The 5 exceptions are if the evidence:

  1. Proves or tends to prove specific instances of the complaining witness’s prior sexual conduct with the accused;
  2. Proves or tends to prove that the complaining witness has been convicted of Prostitution within 3 years before the sex offense that is the subject of the prosecution;
  3. Rebuts evidence introduced by the prosecutor of the complaining witness’s failure to engage in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact during a given period;
  4. Rebuts evidence introduced by the prosecutor that proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or
  5. Is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice.

Under New York’s Rape Shield law, prior sexual conduct is usually off limits unless the evidence applies to the person accused of Rape and the complaining witness or the prosecutor opens the door to such evidence during their case in chief.

Hiring a New York City Rape Lawyer

The criminal justice system is complex and can be intimidating and confusing, especially in New York. Hiring the right New York Rape defense attorney is crucial in achieving the best possible outcome when one is charged with Rape in NYC.

The best New York City Rape lawyer is experienced, aggressive and knowledgeable. As a former prosecutor in Manhattan, I have the experience and knowledge from both prosecuting Rape charges, and aggressively defending people against Rape charges in New York.

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Speak With a Rape Lawyer in NYC Today

If you or a loved one is charged with Rape in New York City, we’re here to help.


Call us at (212) 732-5040. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.

Our office is located at McCarthy & Kelly LLP, 52 Duane Street, FL7, New York, NY 10007.