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Attorney for Rape Charges in Manhattan

Many people are surprised to learn that the crime of rape can be charged and prosecuted when only circumstantial evidence exists even when no physical evidence substantiates the crime.

Although when most people think of rape they think of a crime committed by a stranger such as in the Central park jogger case. However, it is important to realize that most of these allegations are made against people known by the alleged victims including boyfriends, husbands, neighbors, co-workers, bosses, fellow students, and educators.

The number of rape cases reported on college campuses have risen sharply over the years. These allegations often trigger a disciplinary action at the college or university to expel the student accused even if the police never make an arrest.

If you were charged with a serious sex offense such as rape in the first degree, the second degree, or the third degree then contact an experienced criminal defense attorney at Greco Neyland, PC in Manhattan in New York City. With offices in Manhattan, our attorneys are experienced in represent clients charged with serious sex crimes throughout New York City. 


Penalties for Rape under New York Law

New York law classifies crimes of rape into three different categories each charged as a different type of felony including:

  • The crime of rape in the first degree is a class B felony;
  • The crime of rape in the second degree is a class D felony; and
  • The crime of rape in the third degree is a class E felony.

Lesser included offenses of rape in the first degree often include coercion in the second degree under Penal Law § 135.60., which may be committed by means of instilling a fear that if the demand is not complied with, physical injury to a person will be caused.


Rape in the First Degree Under Penal Law § 130.35

Under New York Penal Law § 130.35 a male is guilty of rape in the first degree when he engages in sexual intercourse with a female:

  1. by forcible compulsion; or
  2. who is incapable of consent by reason of being physically helpless; or
  3. who is less than eleven years old.

Under New York law, amendments have altered the statute governing rape. A “person” is guilty of rape in the first degree when that person engages in sexual intercourse with “another person” in one of the required circumstances. This amendment separates the statute from its previous focus on a male engaging in sexual intercourse with a female.

One of the most common types of rape charges involve rape in the first degree by forcible compulson under Penal Law § 130.35(1). It is an essential element of this crime that the sexual act was committed without the consent of the victim. Penal Law § 130.05(1). Lack of consent as charged in the indictment in this case would result from forcible compulsion.

The Penal Law defines “forcible compulsion” in two ways under Penal Law § 130.00(8) including:

  1. as physical force; and
  2. as a threat, express or implied, which places a person in fear of either immediate death or serious physical injury or in fear that she, or another person, may be immediately kidnapped.

However, if the female submits to the act of sexual intercourse because of fear of immediate death, or fear of physical injury to her or another person or fear that she or another person will immediately be kidnapped, and such fear arose as a result of a threat, express or implied, made by the defendant or another acting in concert with the defendant, then the law deems the sexual intercourse to have been forcibly compelled.

At trial, if the jury finds a threat, either express or implied, was made by the defendant, either alone or acting in concert with another, upon the victim which put her in fear of immediate death, physical injury or kidnapping, then that constitutes forcible compulsion. 


Rape in the Second Degree under Penal Law § 130.30

Under Penal Law § 130.30, a person is guilty of rape in the second degree when, being eighteen years old or more, he or she engages in sexual intercourse with another person to whom the actor is not married who is less than fourteen years old. Rape in the second degree is a class D felony.


Rape in the Third Degree under Penal Law § 130.25

Under New York Penal Law § 130.25, a person is guilty of rape in the third degree when:

  1. he or she engages in sexual intercourse with another person to whom the actor is not married who is incapable of consent by reason of some factor other than being less than 17 years old; or
  2. being 21 years old or more, he or she engages in sexual intercourse with another person to whom the actor is not married less than 17 years old.

Rape in the third degree is a class E felony.

Where a person is legally incapacitated, New York law does not recognize any claim that the person “consented” to sex and criminalizes sexual intercourse with that person. The burden on the prosecutor to establish legal incapacity is a high one. 

The prosecutor must prove case-by-case that a victim’s functioning is so impaired as to be “mentally defective.” Under that standard announced in People v. Cratsley, 86 N.Y.2d 81, 629 N.Y.S.2d 992, 653 N.E.2d 1162 (1995), the victim must suffer “from a mental disease or defect which renders him or her incapable of appraising the nature of his conduct.” 

New York law does not presume that a person with mental retardation is unable to consent to sexual intercourse. Instead, proof of incapacity in a rape case must come from facts other than mental retardation alone. The law recognizes that mental retardation is not a disease, disorder or disability, but a less-than-satisfactory administrative term used to identify the condition of a broad spectrum of people whose common trait is inadequate cognitive ability to meet the demands of society.

In these cases, a determination of capacity of appraising the nature of one’s own sexual conduct implicates a range of human responses, only a part of which is intellectual. The determination is a judicial, not a medical, function. 

When looking at a person’s intellectual, emotional, social, psychological abilities, the question of whether a person possesses sufficient resources to determine whether to participate in sexual contact with another is an assessment that can be made by an average juror who likely has made the same determination at some point. See People v. Cratsley, 86 N.Y.2d 81, 629 N.Y.S.2d 992, 653 N.E.2d 1162 (1995)


Definitions under New York’s Rape Statute

The term “sexual intercourse,” as defined in New York’s Penal Law as having its ordinary meaning and occurs upon any penetration, however slight. Penal Law § 130.00(1). The term sexual intercourse occurs upon any penetration, or insertion, however slight, of the penis of the male into the vagina of the female. Thus under the statute, “sexual intercourse” may occur without ejaculation or without complete penetration of the penis into the vagina.


Additional Resources

Rape by Strangers in New York City – This article by Ginia Bellafante was published in in the New York Times on January 22, 2016. The article explains the increase in cases of rape involving assailants unknown to their victims. The article quotes statistics showing that in  2015, there were roughly 166 so-called stranger rapes in New York. The article also explains why the New York Police Department (NYPD) does not Police Department does not make public a map of where and when stranger rapes have occurred.

Ending the National Rape Kit Backlog– Visit the website of the District Attorney of New York County in Manhattan to learn more about an award of approximately $38 million in grants to 32 jurisdictions in 20 states across the United States to eliminate backlogs of untested sexual assault evidence kits (often called “rape kits”). The Sex Crimes Unit of the New York County District Attorney’s Office in Manhattan was the first of its kind in the nation to lead an initiative to test every rape kit in the City’s custody. Clearing the backlog resulted in 49 indictments based on DNA cold case hits. 


Attorney for Rape in Manhattan

If you were charged with a serious sex offense such as rape in the first degree, the second degree, or the third degree then contact an experienced criminal defense attorney at Greco Neyland, PC in Manhattan in New York City.

Never talk to any law enforcement officer about the allegation until after you have retained an experienced criminal defense attorney. Seeking out the services of a qualified attorney as early as possible in the investigation is important.

Let us put our experience to work for you. Call (212) 951-1300 today.


This article was last updated on Wednesday, July 6, 2016.

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