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What Is the Difference Between Rape and Sexual Assault in New York?

Last updated on: February 21, 2024

By Lebedin Kofman LLP

In New York law, sexual assault is the umbrella term used to define sex crimes involving nonconsensual touching or sexual contact. Sexual assault covers sex offenses under the law including rape, predatory sexual assault, forcible touching, and criminal sexual contact, among others. 

Sex crime laws in New York involve a variety of degrees for each offense. It is important to consult with an experienced New York sex crimes lawyer if you or a loved one has been charged with a sex crime. Contact Lebedin Kofman LLP at (646) 663-4430 to receive the support and representation you deserve during this challenging time.

Sexual Assault and Consent

Sexual assault is a category of offenses that fall under the sex crime laws in New York. It refers to sexual acts or contacts committed without the consent of the victim.

New York law defines sexual contact as intentional touching of one party to another for either person to achieve sexual gratification. Sexual contact includes the touching of an actor by a victim and the touching of the victim by an actor. It doesn’t matter if the contact happens with or without clothing. Emission of ejaculate by an actor upon any part of the victim is also considered sexual contact.

It can be difficult to determine whether the contact that happened between two parties is sexual in nature. An investigation would be necessary to establish evidence of sexual contact as well as whether forcible compulsion happened. The help of a New York sexual assault lawyer can help in determining whether there are grounds for the charges. When dealing with accusations of forcible compulsion in sexual encounters, it is important to consult with a qualified rape lawyer or sexual assault attorney. 

A sexual act is considered nonconsensual if it happens under the following circumstances:

  • The victim was forcibly compelled to engage in the act, either through violence or abuse
  • The victim is legally or physically incapable of expressing consent (ie. the victim was unconscious at the time) 
  • The victim is forcibly compelled or incapable of consenting and does not express or show acceptance of the actor’s conduct
  • The victim withdraws consent in the middle of the sexual act

A person is considered legally incapable of consenting to sexual acts if they are:

  • Less than 17 years old
  • Have a mental disability or are mentally incapacitated
  • Physically helpless

Under New York law, there are some specific circumstances in which victims are legally considered incapable of consenting to sexual contact. These circumstances often occur when the victim is in a position where they are under the actor’s care, custody, and responsibility.

An example could be if a police officer initiates sexual contact with a person in detention and their custody. The person in custody is under the care of an agent of the state and the police officer has the responsibility of taking care of the detainee. By engaging in sexual contact with the detainee, the police officer has breached that duty of care. The detainee is considered legally unable to consent. The police officer in this case would be engaging in sexual assault.  This may be both a criminal matter and a potential civil lawsuit.   

The law requires police officers, fire officers, and medical professionals who are acting under the government’s capacity to behave in a manner that is according to their position. As such, they are mandated to keep that duty of care for people who are under their jurisdiction. When this duty of care is compromised, it is important to consult with a civil rights attorney.

Even though sexual assault is an umbrella term, there are charges called predatory sexual assault. A person is guilty of having committed predatory sexual assault when the following are established:

  • He or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, and;
  • He or she causes serious physical harm to their victim or threatens the use of a dangerous instrument
  • He or she has engaged in conduct constituting the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, against one or more additional persons; or
  • They have been previously convicted of a felony involving sexual offenses, incest, or use of a child in a sexual performance.

Due to the severity of the actions committed in predatory sexual assault, it is considered a Class A-II felony. It is one of only two sex offenses carrying the same level of sentencing, the other one being predatory sexual assault against a child.

Sexual Battery vs Sexual Assault

Sexual battery is classified as a type of sexual assault. It includes any form of contact that is initiated through the use of force or the clear threat of force. Instances of sexual battery occur when an individual utilizes physical force or the threat of illegal aggression to engage in sexual conduct with another person, utterly disregarding their lack of consent.

There are multiple forms of sexual battery, all of which involve physical contact. The perpetrator could use their own body weight to confine the other person, or they might resort to weapons or objects to instill fear or manipulate them. In some instances, the offender might even administer drugs to impair the victim’s ability to make informed decisions, thereby making them more vulnerable and compliant.

Sexual assault is a comprehensive term encompassing a wide range of undesired sexual interactions. It pertains to any form of sexual contact or engagement occurring without the agreement of the victim. This constitutes a criminal act wherein the victim is compelled, manipulated, or misled into engaging in sexual actions against their will. This category encompasses any sexual touch or interaction that is deemed offensive and uninvited. 

There are various forms of sexual assault, all revolving around some form of non-consensual sexual engagement. This can range from undesired physical contact to unwanted kissing and even rape. 

If you or a loved one is facing allegations related to sexual assault, it is crucial to seek the assistance of a New York sex crimes lawyer. At Lebedin Kofman LLP, our lawyers understand the intricacies of these charges and can utilize their extensive knowledge of the law to protect your rights and advocate for your best interests. Contact us today to schedule a confidential consultation.

What is rape under New York law?

Rape is defined as nonconsensual sexual intercourse. It can involve forcible compulsion through physical force or other kinds of duress. Duress can involve the use of drugs or threats of violence. Emotional coercion and manipulation also count as forms of duress. The laws on consent strictly apply to New York laws. Statutory rape, even with express consent from the victim, is still considered rape due to minors being legally unable to consent. 

Under the New York Penal Code, rape is divided into three charges.

Third-degree RapeSecond-degree RapeFirst-degree Rape
A person is guilty of rape in the identified degree when he or she engagesin sexual intercourse with:A minor incapable of consenting

A minor incapable of consenting and the defendant is 21 years old and above 
A minor 15 years old and younger and the defendant is 18 years old and above

A person incapable of consenting due to mental disability or incapacity
A person the defendant forcibly compelled

A physically helpless person

A minor who is less than 11 years old

A minor who is less than 13 years old and the defendant is 18 years old or older
Punishmentclass E felony – up to 5 years maximum prison sentence

Registration in sex offender registry
class D felony – up to 7 years maximum prison sentence

Registration in sex offender registry
class B felony – up to  25 years in jail

Registration in sex offender registry

It is important to remember that anyone who has been incarcerated or put on parole or probation due to a sex offense in New York must register as a sex offender with the New York State Division of Criminal Justice Services (“DCJS”). Offenders who want to live in New York but have been convicted of an offense that required registration according to New York law must register as well. 

3rd Degree Rape State of New York

Rape in the Third Degree (NYPL § 130.25) is committed when an individual engages in sexual intercourse with a person who is unable to provide consent. It is important to note that this law does not apply to those who explicitly express non-consent, but rather to those who lack the ability to provide consent. The law recognizes two primary factors that render an individual unable to provide consent: age and intoxication.

NY sexual assault attorney

In the event that a police department’s sex crimes unit takes on a third-degree rape investigation, they may gather DNA evidence from the alleged victim, the accused, and the location of the assault. They may also seek testimony from witnesses who either observed the incident directly or saw the two individuals together. If available, the authorities may also subpoena phone and chat logs, security camera footage, and other relevant documentary evidence. Of particular importance, both parties involved in the alleged incident are typically subject to multiple rounds of interviews with law enforcement officials who will be analyzing consistencies and inconsistencies in their accounts. 

The statute of limitations for filing charges of third-degree rape is the same as for other felony offenses. This implies that unless the accused was continuously absent from New York or his/her whereabouts were unknown during the statutory period, the prosecution cannot bring charges for this crime if more than five years have passed since the alleged incident.

Difference Between Rape And Sexual Assault

Understanding the difference between rape and sexual assault is crucial for recognizing the severity of these crimes and the impact they have. Rape is the non-consensual act of sexual intercourse committed against a person through physical force, coercion, threats, or intoxication. It also covers statutory rape, where an adult has sexual intercourse with a minor – someone below the age of legal consent. The law considers minors incapable of giving legal consent, thus classifying the act as rape even if it appears consensual.

Sexual assault, on the other hand, refers to a broader range of non-consensual sexual acts. Under New York Penal Code §130.00(3), sexual assault includes any unwanted sexual contact with another person, with the intent of obtaining sexual gratification or abusing the victim. This is not limited to penetration but includes any inappropriate touching of the intimate parts of another person without their consent.

Rape and sexual assault are both significant crimes that greatly impact the individuals involved. They violate the personal freedom and safety of the victims and are punishable under criminal law. Understanding these terms and the distinctions between them is essential for legal clarity, ensuring proper support and assistance for individuals facing these accusations.

Every case is unique. It is important to discuss your case with a qualified sex crimes attorney to determine what kind of approach you should take in your legal case. Without the help of a skilled New York sex crimes attorney, it may be difficult to navigate the complicated laws and understand your legal rights. At Lebedin Kofman, LLP, we provide qualified legal counsel and representation. Our team of New York sex crimes attorneys are here to assist you. 

To schedule a consultation with one of our attorneys, fill out our online form or contact us today at 646-663-4430.

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