Romeo and Juliet Law New York

New York has no statute called a “Romeo and Juliet law.” What the Penal Law actually contains is two narrow statutory affirmative defenses, each written into a single section, each turning on the number of years between the two people, and neither one making the underlying conduct lawful in general.

The first sits in § 130.30, rape in the second degree, and applies to subdivisions one, two and three where the defendant was less than four years older than the victim. The second sits in § 130.55, sexual abuse in the third degree, and applies where the lack of consent was due solely to the victim being under seventeen, the victim was more than fourteen, and the defendant was less than five years older. Those are genuine affirmative defenses, written into the statute, and they may be described that way. They also stop where their sections stop. Request a consultation. Law Offices Of SRIS, P.C. was founded in 1997 and maintains 24/7 phone intake at (888) 437-7747.

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What New York Has Instead of a Romeo and Juliet Law

The popular phrase describes an idea: that the law should treat two people close in age differently from an adult and a much younger person. New York implements a version of that idea, but in two places rather than across the Penal Law, and it does so with defenses rather than with an exemption.

Understanding why takes a step back to § 130.05. Lack of consent is an element of every Article 130 offense, and subdivision three deems certain people incapable of consent, including persons under seventeen. Nothing in the age-gap defenses removes that incapacity rule or changes the definition of consent. The conduct still falls within the statute; the defense is what the statute allows a defendant to raise once it does.

The sections also carry their own actor-age elements, which are separate from the defenses. Subdivisions one through three of § 130.30 require an actor eighteen or older, and subdivisions four through six of § 130.25 require an actor twenty-one or older. If the accused does not meet the age a subdivision states, that subdivision’s elements are not made out at all, and no defense is needed to reach that result. The age-gap defenses do different work, and only where the statute places them.

The Affirmative Defense to Rape in the Second Degree

Section 130.30 is rape in the second degree, a class D felony. Subdivisions one through three reach an actor eighteen or older who engages in vaginal, oral or anal sexual contact with a person less than fifteen. The statute provides an affirmative defense to subdivisions one, two and three where the defendant was less than four years older than the victim.

Read that carefully, because each part does work. The defense is attached to § 130.30, not to Article 130 generally. Within § 130.30 it is attached to subdivisions one, two and three by number. The measure is the difference in age between the defendant and the victim, and the threshold is less than four years older, so a gap of four years or more sits outside the defense as the statute frames it.

It follows that the defense does not travel. It does not apply to rape in the first degree under § 130.35, which includes a person less than eleven years old and a person less than thirteen years old where the actor is eighteen or more. It does not apply to rape in the third degree under § 130.25, or to sexual abuse in the first or second degree, § 130.65 and § 130.60. Where a charging document names a section other than § 130.30, this defense is not the provision to look to.

The Affirmative Defense to Sexual Abuse in the Third Degree

Section 130.55 is sexual abuse in the third degree, a class B misdemeanor. Its affirmative defense has three conditions, all drawn from the text. The lack of consent must have been due solely to the victim being under seventeen. The victim must have been more than fourteen. And the defendant must have been less than five years older than the victim.

The first condition is the one most often overlooked. If the lack of consent rests on something other than the victim’s age, whether mental disability or incapacity, physical helplessness, a custodial or supervisory relationship, or any other basis, then it was not due solely to age and the defense as written does not fit. The second condition sets a floor, so the defense addresses a band of ages rather than everyone under seventeen. The third sets the gap at less than five years, a different figure from the less-than-four-years threshold in § 130.30.

Two sections, two gaps, two sets of conditions. That is the accurate way to describe what New York has, and it is why treating “Romeo and Juliet” as a single rule leads people wrong. Article 130 was also recently restructured by L.2023 c.777, and the date of the alleged conduct governs which version of the section should be read.

Frequently Asked Questions

Does New York have a Romeo and Juliet law?

No statute carries that name. New York has two statutory affirmative defenses that turn on the age difference between the two people: one in § 130.30 and one in § 130.55. They are real defenses written into the Penal Law and may be described as affirmative defenses, but they are not a general age-gap exemption and exist only in those two sections.

Which section contains the four-year defense?

Section 130.30, rape in the second degree. The defense applies to subdivisions one, two and three of that section, and it turns on the defendant having been less than four years older than the victim. It does not appear in § 130.25, § 130.35, § 130.60 or § 130.65, and it should not be described as an Article 130 defense.

Which section contains the five-year defense?

Section 130.55, sexual abuse in the third degree, a class B misdemeanor. The defense applies where the lack of consent was due solely to the victim being under seventeen, the victim was more than fourteen, and the defendant was less than five years older. All three conditions come from the statute, and the defense sits only in that section.

Why are the two thresholds different?

Because they are separate provisions in separate sections addressing different offenses. Section 130.30 is a class D felony and uses less than four years older. Section 130.55 is a class B misdemeanor and uses less than five years older, together with its conditions about the victim’s age and the basis for lack of consent. No single figure answers for both.

Do these defenses make the conduct lawful?

No. Lack of consent remains an element of every Article 130 offense under § 130.05, and subdivision three still deems persons under seventeen incapable of consent. The defenses operate within a prosecution under a specific section. They do not remove the conduct from the statute, and they do not change what the definitions in § 130.00 describe.

Can the four-year defense be raised against a § 130.25 charge?

Not as the statute is written. That defense is attached to subdivisions one, two and three of § 130.30. Section 130.25 is a separate section, a class E felony, whose subdivisions four through six reach an actor twenty-one or older and a person under seventeen. Where a charge is brought under § 130.25, the four-year defense in § 130.30 is not the applicable provision.

What does “due solely to” mean in § 130.55?

It limits the defense to cases where the victim’s age under seventeen is the only basis for the lack of consent. If the consent theory also rests on another category from § 130.05(3), such as mental disability or incapacity, physical helplessness, or a custodial or supervisory relationship, that condition of the defense is not satisfied on the statute’s own terms.

Does the recent restructure affect these defenses?

Article 130 was restructured by L.2023 c.777, the term “sexual intercourse” was deleted, and § 130.00(1) now defines “vaginal sexual contact” as contact between the penis and the vagina or vulva with no penetration element, alongside “oral sexual contact” and “anal sexual contact.” The restructure is recent, and the date of the alleged conduct governs which version applies.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm was founded in 1997. Mr. Sris and the firm’s Of Counsel attorneys handle New York criminal defense matters, and where an age-gap defense is in play the work is exact: identify the section and subdivision charged, confirm that the statute places the defense there, and establish the dates that fix the age difference. The firm meets with clients by appointment at its locations. Request a consultation with Law Offices Of SRIS, P.C. at (888) 437-7747.

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