In 2013, the FBI Uniform Crime Reporting (UCR) program initiated collection of rape data under a revised definition within the Summary Reporting System. The study found that rape is grossly underreported in the United States.
The revised UCR definition of rape is: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim”. Attempts or assaults to commit rape are also included. Statutory rape and incest are excluded.
Under 10 U.S. Code § 920 (Art. 120, Rape and Sexual Assault) a person is guilty of rape if commits a sexual act upon another person by:
- using unlawful force against that other person;
- using force causing or likely to cause death or grievous bodily harm to any person;
- threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;
- first rendering that other person unconscious; or
- administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct
While definitions and terminology of rape vary by jurisdiction in the United States, the FBI revised its definition to eliminate a requirement that the crime involve an element of force. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age, as opposed to sex between a minor and a much older adult.
New York recognizes and punishes three degrees of rape. Penalties depend on the ages of the defendant and victim, and the conduct that occurred.
Rape in the third degree. N. Y. Penal Law § 130.25
Third degree rape includes sexual intercourse between a minor who is younger than 17 years old and a defendant who is at least 21 years old. A person less than 17 years old is deemed incapable of consent for purposes of the laws regarding criminal sex offenses.
A person is guilty of rape in the third degree when:
- He/she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than 17 years old;
- Being 21 years old or more, he/she engages in sexual intercourse with another person less than 17 years old; or
- He/she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.
Rape in the third degree is a class E felony , which incurs up to 4 years in prison.
Rape in the second degree. N. Y. Penal Law § 130.30
Second degree rape includes sexual intercourse between a minor who is younger than 15 years old and a defendant who is at least 18 and 4 or more years older than the minor. In New York, it is illegal for an adult or someone 18 or older to have sex with a minor or someone younger than 16, even if the sex is consensual.
A person is guilty of rape in the second degree when:
- Being 18 years old or more, he/she engages in sexual intercourse with another person less than 15 years old; or
- He/she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.
It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than 4 years older than the victim at the time of the act.
Rape in the second degree is a class D, which incurs up to 7 years in prison.
Rape in the first degree. N. Y. Penal Law § 130.35
Upon this section, sexual intercourse has its ordinary meaning and occurs upon any penetration, however slight, between a minor who is younger than 11 years old and a defendant of any age.
A person is guilty of rape in the first degree when he/she engages in sexual intercourse with another person:
- By forcible compulsion; or
- Who is incapable of consent by reason of being physically helpless; or
- Who is less than 11 years old; or
- Who is less than 13 years old and the actor is 18 old or more.
Forcible compulsion means compelling the victim through the use of physical force or the threat of immediate death, physical injury or kidnapping.
Rape in the first degree is a class B felony, which incurs at least 5 (and up to 25) years in prison.
It is absolutely vital that you do not hesitate to secure the legal assistance of a criminal defense lawyer. If you have been charged with rape, we can develop any defenses that might apply to your case.
For example, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. In New York, there is a partial Romeo and Juliet exemption for consensual sex between a minor who is 15 or 16 and someone who is younger than 21. There is also a partial exception when a minor is 11, 12, 13, or 14 years old, and a defendant is younger than 17.
Moreover, New York has a marital exemption for statutory rape that allows consensual sex between a married minor and that minor’s adult spouse, even though their ages would prohibit it if they were not married.
Mistake of age is not a defense in New York.