Falsely Accused of Rape Lawyer New York

Anyone researching a New York rape allegation should know at the outset that the statutes no longer read the way they read for decades. Each degree of rape now carries parallel branches for vaginal, oral and anal sexual contact. The criminal sexual act degrees that once covered oral and anal conduct were repealed by L.2023 c.777, which struck N.Y. Penal Law §§ 130.40, 130.45 and 130.50 outright. The penetration-based term sexual intercourse is no longer the term of art in Article 130 at all; it was deleted, and the conduct definitions in N.Y. Penal Law § 130.00 were rebuilt around contact. The effective date of that restructure is unsettled, because the act states January 1, 2024 while it was signed January 30, 2024 and the discrepancy has not been resolved, so the date of the alleged conduct governs which version applies.

That matters to a person who says the accusation is false, because a denial has to be aimed at the right target. An accusation is not proof. The prosecution must prove every element of the section it charged, and the elements of rape in the first degree under § 130.35 are not what a summary written under the old statutory language would suggest.

Law Offices Of SRIS, P.C. has defended people accused of crimes since 1997. Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor, and he and the firm’s Of Counsel attorneys start with the statutory text before anything else. Request a consultation by calling (888) 437-7747.

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Rape in the First Degree Under N.Y. Penal Law § 130.35, Element by Element

Rape in the first degree is a class B felony, and it is a sexually violent offense under Correction Law § 168-a(3), the section that supplies the definitions used in New York’s sex offender registration scheme. The section is organized into three subdivisions, one each for vaginal sexual contact, oral sexual contact and anal sexual contact. That parallel structure is the restructure in practical form: conduct that once fell under a separate criminal sexual act section now appears as a branch of the rape section itself.

The conduct element comes from § 130.00. Vaginal sexual contact means contact between the penis and the vagina or vulva. There is no penetration element in that definition. Oral sexual contact and anal sexual contact are defined separately in the same section. A defense reading begins here, because an account that describes something other than the contact the charged branch defines has not described the conduct element of that branch, whatever else it describes.

The consent element comes from § 130.05, which makes lack of consent an element of every Article 130 offense. Lack of consent can result from forcible compulsion, from incapacity to consent, or from non-acquiescence, and subdivision 3 of that section lists the persons deemed incapable of consent, including those under seventeen.

Each of the three subdivisions of § 130.35 then attaches four alternative circumstances. The conduct may be alleged to have occurred by forcible compulsion. It may be alleged to have occurred with a person incapable of consent by reason of being physically helpless. It may be alleged to have occurred with a person less than eleven. Or it may be alleged to have occurred with a person less than thirteen where the actor is eighteen or more. Those circumstances are alternatives, not cumulative requirements, and the prosecution proceeds on the one it has selected.

Reading the section this way produces a concrete list rather than a general sense of jeopardy: which branch, which circumstance, which route to lack of consent, and what each of those would require. A charge that is described loosely in a report often becomes considerably more specific once it is placed against the text, and the specificity is what a defense can be built on.

How Mr. Sris and the Firm’s Of Counsel Attorneys Handle These Cases

Every matter starts with a line-by-line comparison of the accusation to the charged section. Mr. Sris and the firm’s Of Counsel attorneys identify the branch of § 130.35 in play, the alternative circumstance the prosecution has selected, and the route to lack of consent under § 130.05 that the circumstance implies. Where a matter predates the restructure, the analysis also has to establish which version of Article 130 the offense date places the matter under, since the repealed sections still govern conduct that occurred while they were in force.

Client communications are then routed through counsel. A person who is certain the accusation is false frequently wants to contact investigators, the person who made the report, or mutual acquaintances. Those contacts create a record the client cannot control and cannot retract, and they can generate exposure entirely separate from the original allegation.

Investigation runs on a short clock. Message threads, device data, access and transit records, and payment records that place people in time are held largely by third parties who overwrite them on their own schedules. Preservation requests, prompt outreach to people who were present, and forensic handling of the client’s own devices are standard steps rather than extraordinary ones, and their value depends almost entirely on how early they happen.

Preparation for trial then proceeds alongside everything else. Motions are filed where the record supports them, and discussions with the prosecution take place where they are productive, but the matter is prepared as though it will be tried. Mr. Sris and the firm’s Of Counsel attorneys do not tell a client how a matter will come out. What they commit to is a defense anchored in the elements of the charged branch and in the material that can actually be documented.

The Lawyers Behind the Firm’s Article 130 Work

Mr. Sris is the Owner and Founder of the firm, which has practiced since 1997. He is a former prosecutor, and having previously worked on the charging side he reads a file with the charging decision in mind: what a report supports, what it merely asserts, and what a prosecutor would still need before a section like § 130.35 could be carried through to a verdict. He is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York.

The firm’s other attorneys serve in an Of Counsel capacity and contract directly with the firm. On a felony allegation under Article 130, Mr. Sris and the firm’s Of Counsel attorneys work together, so that the statutory analysis, the investigative work, and the motions calendar can advance at the same time. A client is told at the outset which attorneys are handling the matter, and that assignment is not left to shift as court dates approach.

Intake is reachable through a 24/7 phone intake line, and consultations are scheduled by appointment. Because the restructured article changed both the conduct terms and the section numbers, an initial reading often has to correct assumptions a client picked up from older material before the actual exposure can be described. Request a consultation by calling (888) 437-7747.

Frequently Asked Questions

Does rape in the first degree under § 130.35 require penetration?

The definition that supplies the conduct element does not contain a penetration requirement. Under N.Y. Penal Law § 130.00, vaginal sexual contact means contact between the penis and the vagina or vulva, and oral sexual contact and anal sexual contact are defined separately in the same section. The penetration-based term sexual intercourse was deleted from Article 130. If you have read older summaries describing a penetration element, those summaries describe language that is no longer in the article, and the version that applies to a given matter depends on the date of the alleged conduct.

What alternative circumstances does the statute list for each branch?

Each of the three subdivisions of § 130.35 carries four alternatives. The conduct may be alleged to have occurred by forcible compulsion; with a person incapable of consent by reason of being physically helpless; with a person less than eleven; or with a person less than thirteen where the actor is eighteen or more. The prosecution proceeds on the alternative it has selected rather than on all of them, so identifying which one has been charged narrows the analysis considerably and determines what the defense is actually responding to.

How does rape in the third degree differ from rape in the first degree?

They are different sections with different classifications. Rape in the first degree under N.Y. Penal Law § 130.35 is a class B felony. Rape in the third degree under § 130.25 is a class E felony, and its subdivisions seven through nine reach contact without consent where the lack of consent arises from a factor other than incapacity. Under § 130.05, lack of consent for those subdivisions can result from a clearly expressed lack of consent. The section charged sets the classification and the elements that have to be established.

What does it mean that § 130.35 is a sexually violent offense?

Correction Law § 168-a supplies the definitions used in New York’s sex offender registration framework, and § 130.35 is listed as a sexually violent offense under § 168-a(3). The designation is a statutory classification attached to the section itself, which is one reason the identity of the charged section matters so much at the outset. Registration consequences are governed by the Correction Law rather than by the Penal Law section alone, and how they would apply to a specific matter is a question for counsel to take up against the charge as it stands.

What does a consultation on a rape allegation cover?

It covers what has actually been alleged, which section and branch that allegation points toward, what the prosecution would have to establish under the alternative circumstance it has selected, and what the date of the alleged conduct means for which version of Article 130 applies. It also covers immediate steps: how to handle contact from investigators, what records exist that will not exist much longer, and what you should not do while the matter is open. Request a consultation by calling (888) 437-7747.

This page provides general information and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

Attorney Advertising. Law Offices Of SRIS, P.C., principal office: 4008 Williamsburg Court, Fairfax, VA 22032. By appointment. Call (888) 437-7747 to schedule.

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