Rape in the Second Degree in NYC
Rape in the Second Degree in New York, Penal Law Section 130.30, is a class D violent felony, and is charged when a person:
- Engages in sexual intercourse with a person who lacks the capacity to consent, because he or she is mentally disabled or mentally incapacitated; or
- Is 18 years or older and engages in sexual intercourse with another person who is less than 15
If you or a loved one is charged with Rape in the Second Degree, hiring a Rape Lawyer in NYC is crucial in obtaining a favorable outcome.
Rape in the Second Degree Romeo and Juliet Affirmative Defense
New York has an important affirmative defense if a person is charged based on ages. This is the so-called Romeo and Juliet defense.
Under Penal Law Section 130.30, it is an affirmative defense if the person charged is less than 4 years older than the complaining witness at the time of the alleged sexual intercourse.
For example, if a person charged with Rape in the Second Degree turned 18 the week that the sexual intercourse occurred and the complaining witness was 14 years and 6 months old at the time of the alleged act, the age difference would be approximately 3.5 years. In that case, the person charged could assert an affirmative defense based on the age difference of less than 4 years.
However, a person could still be charged with Sexual Misconduct, Penal Law Section 130.20. A Sexual Misconduct charge involves Sexual Intercourse without the consent of the complaining witness. A person cannot legally consent to Sexual Intercourse if he or she is less than 17 years old.
A Sexual Misconduct charge is a class A misdemeanor. Thus the maximum penalty is 1 year in jail. If the affirmative defense for Rape in the Second Degree charge applies, then depending on the allegations an aggressive defense lawyer may be able to avoid a Sexual Misconduct charge for the person charged. Every case is different and depends on the specific allegations.
Sentencing for Rape in the Second Degree in New York
Rape in the Second Degree is a class D violent felony. The maximum sentence of a first-time felony offender is 7 years in prison and a minimum of 2 years.
In addition, a period of post-release supervision of between 3 and 10 years. However, there are several sentencing options, and prison is not mandatory. For a first felony conviction, a judge may impose:
- A definite sentence of 1 year in prison;
- A split sentence of 6 months in jail and 10 years on probation or a 3-year conditional discharge;
- A 3-year conditional discharge; or
- A straight unconditional discharge
To avoid incarceration for a conviction of Rape in the Second Degree, depending on the sentence, a Judge is required to find that:
- Given the nature and circumstances of the crime and the history and character of the defendant, a long prison sentence would be unduly harsh;
- Confinement is not necessary for the protection of the public; or
- That the public interest or justice would not be served by incarceration
A Rape in the Second Degree conviction also requires registration under SORA, and the convicted person is required to undergo confidential HIV testing.
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.
Contact The Law Firm of Andrew M. Stengel
Contact us via the live chat below, through our contact form here, or call us at (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.
Our offices are located at 11 Broadway, Suite 715, New York, NY 10004, and we handle cases throughout New York City, Nassau, Westchester and the surrounding counties.
