What is Rape in the Third Degree in New York?
Rape in the Third Degree, Penal Law Section 130.25, is a class E felony, carrying a potential sentence of 4 years in prison.
Under New York Law, a person commits Rape in the Third Degree when he or she engages in sexual intercourse:
- With someone who is incapable of consent for some reason other than being less than 17;
- Without the other person’s consent, if the lack of consent is not attributable to incapacity to consent; or
- With a person who is less than 17, if he or she is 21 or older
If you or a loved one is charged with Rape in the Third Degree, hiring a NYC rape lawyer is crucial in obtaining a favorable outcome.
Legal Defenses to Rape in The Third Degree in NYC
New York has an important defense to Rape in the Third Degree when a person is charged with sexual intercourse without the other person’s consent.
Under Penal Law Section 130.05(d), if the lack of consent was expressed through words or acts of expression by the complaining witness, then a reasonable person in the accused’s “situation would have understood such person’s words and acts of expression as lack of consent to such act under all the circumstances.”
Put another way, if a reasonable person would have not understood that words or acts of expression communicated a lack of consent, then a lack of consent cannot be established.
Thus, even if a complaining witness claims that he or she expresses a lack of consent, the words or acts must pass a reasonableness test. While a complaining witness may subjectively feel that he or she used words or acts to show non-consent, the words or acts must be such that a reasonable person understood the lack of consent.
The objective reasonableness standard is an important limiting principle. A skilled defense attorney may be able to show that if an expressed lack of consent is alleged it was not reasonable. Each depends on the specific allegations. The reasonableness standard does not apply if incapacity to consent is alleged.
Sentencing for Rape in the Third Degree in New York
Rape in the Third Degree is a class E felony. A first-time felony offender will be sentenced to a determinate term of 1.5 to 4 years in prison.
In addition, a term of post-release supervision of between 3 and 10 years is required. There are 3 other possible sentences for a conviction of Rape in the Third Degree.
First, a Judge can impose a sentence of up to 1 year in prison if the nature and circumstances of the crime and the history and character of the person convicted, a sentence of imprisonment is necessary but that a longer term would be unduly harsh.
Second, a Judge can issue a sentence of probation for up to 10 years if a prison sentence may not be necessary for the protection of the public, the person convicted needs treatment that can be administrated by the Department of Probation and that a term of probation is not inconsistent with the ends of justice.
A person convicted of Rape in the Third Degree may able be required to undergo testing for HIV. Finally, a conviction requires registration to the New York Sex Offender Registry as a Level 1, 2 or 3, based on the risk to commit another sex offense, as determined by a Judge.
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.
