Statutory Rape Lawyer New York

New York has no offense called “statutory rape.” The phrase is common in ordinary conversation and in news coverage, but it appears nowhere in the New York Penal Law. Conduct that people describe with that phrase is prosecuted under Article 130, most often as rape in the third degree under § 130.25, rape in the second degree under § 130.30, rape in the first degree under § 130.35, or under one of the sexual abuse sections at § 130.55, § 130.60 and § 130.65.

What ties those charges to age is not a separate age statute. It is the consent rule. Lack of consent is an element of every Article 130 offense under § 130.05, and subdivision three of that section deems certain people incapable of giving consent, including persons under seventeen. The age-based sections then add their own requirements, including, in most instances, a minimum age for the accused. Article 130 was recently restructured by L.2023 c.777, and the date of the alleged conduct governs which version of the statute applies to a particular case.

Law Offices Of SRIS, P.C. was founded in 1997. Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor. Mr. Sris and the firm’s Of Counsel attorneys handle New York criminal matters of this kind. Request a consultation. The firm maintains 24/7 phone intake at (888) 437-7747.

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What New York Charges Instead of Statutory Rape

Article 130 sorts age-based accusations by the age of the complaining witness and, in most of the relevant subdivisions, by the age of the accused as well. Rape in the first degree under § 130.35 is a class B felony, and it includes a person less than eleven years old, or a person less than thirteen years old where the actor is eighteen or more. Rape in the second degree under § 130.30 is 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. Rape in the third degree under § 130.25 is a class E felony; subdivisions four through six reach an actor twenty-one or older who engages in that contact with a person under seventeen, and subdivisions seven through nine reach the same contact without consent where the lack of consent arises from a factor other than incapacity.

The sexual abuse sections cover conduct that the rape definitions do not describe. Sexual abuse in the first degree, § 130.65, is a class D felony. Sexual abuse in the second degree, § 130.60, is a class A misdemeanor, and it reaches a victim who is incapable of consent for a reason other than being less than seventeen, as well as a victim less than fourteen. Sexual abuse in the third degree, § 130.55, is a class B misdemeanor.

The restructure changed vocabulary as well as structure. The penetration-based 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.” Each rape degree now carries parallel vaginal, oral and anal branches. The former criminal sexual act degrees were repealed outright and are no longer current New York law, so an accusation framed in that older vocabulary needs to be matched against the text in force for the date of the alleged conduct.

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

Mr. Sris and the firm’s Of Counsel attorneys begin an age-based Article 130 matter by fixing dates: the date of the alleged conduct and the birth dates of both people named in the accusation. Those dates determine which subdivision the prosecution can reach and, because Article 130 was recently restructured, which version of the statute governs. A matter that sits close to a statutory age line, or close to an age-gap line, can move between subdivisions on facts a client may not have thought mattered.

The next step is reading the accusatory instrument against the section it names. Each rape degree now has parallel vaginal, oral and anal branches drawn from the definitions in § 130.00, and the sexual abuse sections describe different conduct with different classifications. A charge drafted under one subdivision does not automatically support conviction under another, and the elements the prosecution must establish come from the subdivision actually charged.

Because lack of consent is an element of every Article 130 offense under § 130.05, the consent theory in the case matters. Where the theory rests on the incapacity list in § 130.05(3), the analysis turns on the category asserted: age, mental disability or incapacity, physical helplessness, or a custodial or supervisory relationship. Where the theory rests on something other than incapacity, as in subdivisions seven through nine of § 130.25, the factual questions are different, and the pleading should say which theory the prosecution has chosen.

Mr. Sris and the firm’s Of Counsel attorneys also assess collateral consequences early. Correction Law § 168-a defines the sex offenses covered by New York’s registration scheme, and the offenses it lists include § 130.25, § 130.30 and § 130.60. Registration exposure shapes how a matter is evaluated from the outset rather than at sentencing. From there the work follows the ordinary criminal process: discovery, motion practice, negotiation where that is appropriate, and trial preparation where a case is not resolved short of trial.

About Mr. Sris and Law Offices Of SRIS, P.C.

Law Offices Of SRIS, P.C. was founded in 1997. Mr. Sris is the Owner and Founder of the firm and a former prosecutor. That earlier work involved evaluating charging decisions and assembling cases from the state’s side of the file, and it informs how he reads an accusatory instrument, a discovery packet, and a plea posture in an Article 130 matter. Mr. Sris is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York.

The firm’s other attorneys serve Of Counsel. Mr. Sris and the firm’s Of Counsel attorneys handle New York criminal defense matters, including the age-based Article 130 accusations described on this page. Assignments are made by the firm, and the attorney handling a matter is identified to the client at the outset. Law Offices Of SRIS, P.C. meets with clients by appointment at the firm’s locations, and the firm maintains 24/7 phone intake.

A New York age-based accusation carries a statutory classification, whether a class B, D or E felony or a class A or B misdemeanor, along with the registration exposure that Correction Law § 168-a attaches to the sections it lists. Those consequences are worth understanding before decisions are made about how to respond. Request a consultation with Law Offices Of SRIS, P.C. at (888) 437-7747.

Frequently Asked Questions

Is “statutory rape” a crime in New York?

No. New York does not have an offense by that name. The phrase describes a category of conduct rather than a statute. When an accusation turns on the age of the person alleged to have been harmed, prosecutors charge it under Article 130 of the Penal Law, commonly § 130.25, § 130.30 or § 130.35, or under one of the sexual abuse sections. What connects those charges to age is § 130.05, which makes lack of consent an element of every Article 130 offense and, in subdivision three, deems persons under seventeen incapable of consent. You will see the statutory name, not the popular phrase, on the charging document.

Which age does New York use as the consent line?

Section 130.05(3) deems persons under seventeen incapable of consent, and that rule sits behind the age-based charges. It is not the whole picture. The rape and sexual abuse sections set their own age lines and, in most instances, their own requirement about the age of the accused: less than eleven, or less than thirteen where the actor is eighteen or more, under § 130.35; less than fifteen where the actor is eighteen or older, under § 130.30; and under seventeen where the actor is twenty-one or older, under § 130.25. Which line applies depends on both ages.

Does the age of the person accused matter?

Yes, in most of the relevant subdivisions. Rape in the second degree under § 130.30, subdivisions one through three, requires an actor eighteen or older. Rape in the third degree under § 130.25, subdivisions four through six, requires an actor twenty-one or older. Rape in the first degree under § 130.35 includes a person less than eleven years old, and includes a person less than thirteen where the actor is eighteen or more. The distance between the two ages can matter as well, because § 130.30 carries an affirmative defense to subdivisions one, two and three where the defendant was less than four years older than the victim.

What changed in Article 130 recently?

Article 130 was restructured by L.2023 c.777. The penetration-based term “sexual intercourse” was deleted from the definitions, and § 130.00(1) now uses “vaginal sexual contact,” meaning contact between the penis and the vagina or vulva with no penetration element, alongside “oral sexual contact” and “anal sexual contact.” Each rape degree now carries parallel vaginal, oral and anal branches, and the former criminal sexual act degrees were repealed outright. The change is recent, and the date of the alleged conduct governs which version of the statute applies, so an older allegation and a newer one can be read against different text.

Can an age-based conviction lead to sex offender registration?

Correction Law § 168-a defines the offenses covered by New York’s sex offender registration scheme, and the sex offenses it lists include § 130.25, § 130.30 and § 130.60. Whether registration follows in a particular matter depends on the section of conviction and on the rest of that statutory scheme, which this page does not attempt to summarize. Because the consequence attaches to the section, the section charged and the section of any negotiated disposition deserve attention early rather than late. Request a consultation.

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.

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