What Does New York Law Say About Rape Versus Sexual Assault?

Being charged doesn’t mean you are guilty. The Brill Legal Group will fight for your reputation, freedom, and future. 

The stakes could not be higher. An accusation of rape or sexual assault could lead to decades in prison, a lifetime on a sex offender registration list, and permanent damage to your personal and professional relationships. 

New York’s laws are among the toughest in the nation on sex crimes. Even an unproven allegation can lead to arrest, bail conditions or pretrial detention, orders of protection that bar you from contact with family members or colleagues, unwanted media attention, and public stigma. 

You need experienced legal counsel immediately to level the playing field. Speak to the team at the Brill Legal Group for help. 

Why You Should Never Face These Charges Alone

Most people accused of a crime enter the case at a disadvantage. The moment you are accused, police and prosecutors begin building a case against you. Yet you may not know of the accusation until you’re arrested or charged. Investigators have a head start in building their theory of your guilt – whether or not that theory is based on facts. 

Once you’re accused, anything you say can and will be used against you. This rule includes not only verbal statements but also texts, emails, and other written communications. 

Many rape and sexual assault cases involve complex factors. Alcohol may be involved, blurring the memories of those at the scene. Conflicting stories about consent may arise. All too often, feelings of regret or a desire for revenge fuel the decision to accuse another of rape or assault. 

Because rape and sexual assault play an outsize role in the public imagination, prosecutors tend to pursue aggressive charges even when evidence is weak. Early intervention by a skilled defense attorney can challenge the developing narrative, identify critical evidence to support your version of events, and protect your constitutional rights. 

Understanding New York Sexual Assault and Rape Charges

New York defines “rape” and “sexual assault” differently. In addition, these crimes may be charged in varying degrees, depending on the facts of the case. 

Degrees of Rape and Potential Sentences

First degree rape(NY Penal Law § 130.35) occurs when a person engages in vaginal sexual contact, oral sexual contact, or anal sexual contact with another person: (a) by forcible compulsion; (b) when the other person is incapable of consent by reason of being physically helpless; (c) when the other person is less than eleven years old; or (d) when the other person is less than thirteen years old and the actor is eighteen years old or more.

Second degree rape, under New York Penal Law § 130.30, occurs in two main circumstances: (1) when someone 18 years old or older engages in vaginal, oral, or anal sexual contact with another person under age 15; or (2) when a person of any age engages in vaginal, oral, or anal sexual contact with another person who is incapable of consent due to mental disability or mental incapacitation. 

It is a class D felony, and an affirmative defense exists for the age-based provision if the defendant was less than four years older than the victim. The ‘four-year age gap’ exception mentioned in the original statement does not appear in New York law. In New York State, rape in the second degree (NY Penal Law § 130.30) is a Class D violent felony, punishable by a mandatory minimum of 2 years and a maximum of 7 years in prison. Note that classifications and penalties for second-degree rape vary significantly by state.  

Third degree rape (NY Penal Law § 130.25) occurs when a person engages in vaginal, oral, or anal sexual contact with another person who is incapable of consent due to any reason other than being under age 17. It can also occur when someone 21 years old or older engages in vaginal, oral, or anal sexual contact with someone under age 17. Additionally, it occurs when a person engages in such sexual contact with someone who does not consent, where the lack of consent is based on a factor other than the person’s incapacity to consent.

What is Considered Sexual Assault?

“Sexual assault” is a broad category. It covers not only rape, but forcible touching, sexual abuse, and other criminal sexual acts. Examples of sexual assault proscribed by New York’s criminal laws include:

• Sexual misconduct, which occurs when a person has intercourse or oral or anal sexual contact with someone else without their consent. It also includes sexual acts with animals and corpses. Sexual misconduct is a Class A misdemeanor.
• Criminal sexual acts include non-consensual oral or anal sexual contact. The other person may be incapable of consent, may be too young to legally consent, or may have refused to consent. Like rape, criminal sexual acts fall under different degrees, depending on the circumstances, with penalties that scale with severity.
• Forcible touching occurs when a person “intentionally, and for no legitimate purpose, forcibly touches” someone else’s intimate parts “for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire.” Forcible touching is a class A misdemeanor.
• Sexual abuse involves subjecting another person to sexual contact without their consent. Like rape and criminal sexual acts, sexual abuse can be charged in varying degrees. “Aggravated sexual abuse” may be charged if physical injury occurs during sexual abuse.

Sex Offender Registration

Those convicted of sex offenses in New York are required to register with the state’s Sex Offender Registry. The registry provides information about the identities and locations of registered sex offenders within the state. 

The public can look up information including a registered person’s address, the conviction(s) that required the person to register, photographs of the person, their vehicle’s make, model, and license plate number, and the conditions of the person’s parole or probation, if any. 

Sex offender registration represents a significant compromise to a registered person’s privacy. The risk of this privacy loss is just one reason an accused person needs the help of an experienced criminal defense lawyer. 

Consent Under New York Law

Under New York law, sex offenses are sexual acts “committed without consent of the victim.” Lack of consent may occur when someone lacks the capacity to consent due to conditions like mental incapacity or age. It may occur when someone is forced to participate in a sex act against their will. For sexual abuse or forcible touching, lack of consent is determined by the circumstances – did the victim “expressly or impliedly acquiesce in the actor’s conduct”?

Consent can be a complex issue in a rape or sexual assault case. What was understood as consent in the moment may not be understood as consent by both parties after the fact. Alcohol and other substances can further blur these lines and produce feelings of regret once the “high” wears off. 

Many sexual assault and rape cases turn on questions of consent. For this reason, it’s essential to speak to an experienced criminal defense lawyer as soon as possible. 

Common Scenarios Where False Rape and Sexual Assault Allegations Arise

Criminal laws prohibiting rape and sexual assault are written for situations in which wrongdoing is clear-cut. In real life, however, many of these cases are complex. Common scenarios where unjustified rape or sexual assault allegations may arise include:

• Situations where one or both parties were drunk or intoxicated by substances they voluntarily took
• One-night encounters where one party’s regret leads to disputes about consent
• Claims arising during breakups, divorce, or other tense situations leading to anger and a desire for revenge
• Teen relationships, where inexperience navigating sexually charged situations and questions about statutory consent may arise
• Accusations motivated by revenge or leverage in custody disputes
• Cases in which forensic evidence is incomplete or misleading

We have seen every scenario, and we know how to build a defense that addresses the unique facts of your case. 

How Brill Legal Group Builds a Strategic Defense

At the Brill Legal Group, we know: the consequences of a rape or sexual assault allegation are serious. Our methodical approach takes these accusations seriously as we get to the facts. 

When we take on a rape or sexual assault case:

• We intervene early. Whenever possible, we engage with investigators before criminal charges are filed. We challenge search warrants and evidence collection. To avoid a public arrest spectacle, we arrange for a quiet, private surrender if required. 
• We investigate thoroughly. We interview witnesses immediately. We move quickly to secure electronic records, like texts, social media, and GPS logs. We consult forensic experts to analyze DNA and toxicology evidence. 
• We negotiate strategically. Where the evidence is misleading or insufficient to support a charge, we fight for charges to be reduced or dismissed. When an alternative disposition is appropriate, we argue for options other than incarceration. 
• We fight in court. When we take a case to trial, we advocate to win. We expose inconsistencies in the accuser’s accounts, challenge weaknesses in the credibility of the evidence, cross-examine forensic experts, and present alternative explanations or consent defenses. 

No two cases are alike. We tailor every strategy to your unique circumstances. 

The Consequences of Doing Nothing

Sexual assault charges can be overwhelming. For some people, the temptation to simply ignore the charges can be great – especially when you’re certain you did nothing wrong.

Doing nothing, however, is the worst possible choice in the face of sexual assault allegations. Without an experienced defense lawyer, you risk being convicted of a felony that will follow you forever. You may forfeit opportunities to challenge illegally obtained evidence. You could face maximum sentences without opportunities to negotiate for a more appropriate outcome. 

The time to act is now, before police, prosecutors and courts decide your fate for you. Speak to the team at the Brill Legal Group today. 

Why Choose the Brill Legal Group?

Brill Legal Group is one of New York’s most dedicated criminal defense firms. We stand out among our peers for our:

• Decades of experience defending individuals accused of the most serious sex crimes in New York law.
• Board-certified criminal trial attorneys with the knowledge and experience required to understand the charges you face and get results.
• A proven track record composed of hundreds of successful outcomes in criminal cases.
• 24/7 availability, so we’re here when you need us most.
• Discreet, judgment-free representation that focuses on your right to a fair trial. We preserve your dignity and respect throughout the process. 
• Personalized strategies tailored to the unique facts and charges you face. 

What to Do If You Have Been Accused

If you’ve been accused of rape or sexual assault in New York, don’t wait. Take these steps immediately. 

• First, do not talk to the police without a lawyer present. Say only “I invoke my right to remain silent and I invoke my right to a lawyer.” Then, wait for a lawyer to be present – and consult with this attorney – before you speak further. 
• Do not contact the accuser. It can be tempting to call or text, thinking you can clear things up. Don’t. This action and anything you say can and will be used against you. 
• Preserve all evidence. Text, social media posts, voicemail messages, receipts, photos, and GPS logs: all this information can play a crucial role in reconstructing key events. Hang onto everything that might be relevant to your case. 
• Don’t talk about the case. Make no statements to friends or family that could be used against you. 
• Contact Brill Legal Group immediately. The sooner you have an experienced attorney on your side, the sooner you begin building a strong defense. 

Schedule a Confidential Consultation at the Brill Legal Group, P.C. Today

When accusations of rape or sexual assault arise, you have only one chance to protect your rights. The sooner you have an experienced attorney on your side, the better your chances of a successful outcome. 
Contact us today for a confidential, no-obligation consultation at (212) 233-4141.