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Rape In The Second Degree


Penal Law 130.30

Defendant 18 or more/Complainant less than 15 130.30(1)

Under New York State law, a person is guilty of rape in the second degree when he or she is eighteen years old or more and he or she engages in sexual intercourse with another person less than fifteen years old. If a person is found guilty of rape in the second degree, he or she will be charged with a Class D Felony.

Under 130.00(1) of the New York State Penal law, sexual intercourse is defined as any penetration of the penis into the vaginal opening. The penetration may be of any type. Sexual intercourse does not require erection of the penis, emission or orgasm. It is an element of this offense that the sexual intercourse was committed without the consent of the other person. Sexual intercourse takes place without another’s consent when that person is deemed incapable of consent by the law. A person is incapable of consenting to sexual intercourse when he or she is less than seventeen years old. New York State Penal law deems sexual intercourse with a person under seventeen years of age to be without that person’s consent, even if in fact that person did consent.

It is not a defense to a charge under 130.25(2) that the actor did not know that the person with whom the actor had sexual intercourse was less than fifteen years old. Additionally, it is not a defense that the actor believed such person was fifteen years old or more on the date of the crime.

It is a defense to a charge under 130.30(1) that the defendant was married to the victim. Married means the existence of a spousal relationship between the defendant and the victim as recognized by New York State law at the time of the alleged offense.

To be found guilty of this crime, the prosecution must prove beyond a reasonable doubt three or four elements: (1) that on the alleged date the defendant engaged in sexual intercourse with the complainant; (3) the defendant was eighteen years old or more; (3) the complainant was less than fifteen years old; and (4) if applicable the defendant was not married to the complainant.

Lebedin Kofman LLP

Russ Kofman is a founding partner in Lebedin Kofman LLP. He has extensive litigation experience defending clients accused of felonies, misdemeanors and DWI/ DUI crimes.

Incapable of Consent-Mentally Disabled or Incapacitated 130.30(2)

Under New York State law, a person is guilty of rape in the second degree when he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. If a person is found guilty of rape in the second degree, he or she will be charged with a Class D Felony.

Under 130.00(1) of the New York State Penal law, sexual intercourse is defined as any penetration of the penis into the vaginal opening. The penetration may be of any type. Sexual intercourse does not require erection of the penis, emission or orgasm. It is an element of this offense that the sexual intercourse was committed without the consent of the other person. Sexual intercourse takes place without another’s consent when that person is deemed incapable of consent by the law.

A person is deemed to be incapable of consenting to sexual intercourse when he or she is mentally disabled or mentally incapacitated. A person is mentally disabled under New York State law when that person suffers from a mental disease or defect which renders him or her incapable of assessing the nature of his or her conduct. A person is mentally incapacitated under New York State law when that person is rendered temporarily incapable of assessing or controlling his or her conduct because of the influence of a narcotic or intoxicating substance administered to him or her without his or her consent.  A person is physically helpless under New York State law when that person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. The law deems sexual intercourse with a person who is mentally disabled or mentally incapacitated to be without the person’s consent even if that person did consent.

It is a defense to a charge under 130.30(2) that the defendant was married to the victim. Married means the existence of a spousal relationship between the defendant and the victim as recognized by New York State law at the time of the alleged offense.

To be found guilty of this crime, the prosecution must be able to prove beyond a reasonable doubt two or three elements: (1) that on the date alleged the defendant engaged in sexual intercourse with the complainant; (2) the complainant was incapable of consent by reason of being mentally disabled or mentally incapacitated; and (3) if applicable, that the defendant was not married to the complainant.

For more information on Rape In The Second Degree, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (212) 500-3273 today.

Lebedin Kofman LLP

Russ Kofman is a founding partner in Lebedin Kofman LLP. He has extensive litigation experience defending clients accused of felonies, misdemeanors and DWI/ DUI crimes.

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