What is Age of Consent in New York?

Jason Goldman
February 23, 2024

Table of Contents

The age of consent is 17 years old in New York. This means that anyone who engages in sexual activity with a person under the age of 17 can face statutory rape charges. Put another way, anyone under the legal age of consent (17) is deemed legally incapable of providing consent to sexual relations. However, some states such as New York do have a version of “Romeo and Juliet” laws.

For more about what rape is and what to do if falsely accused of rape in New York, please read here.

Does New York Have Romeo and Juliet Laws?

“Romeo and Juliet” laws cover close-in-age exceptions to statutory rape (ie, sexual activity with somebody under the legal age of consent). Hence, in New York, there is mitigation for individuals who engage in consensual sexual activity with someone else close in age, even if the latter individual is under 17 years of age.  

In New York, the “five-year rule” means that there is a reduced penalty if the latter party is a minor who is 15 years old or older and the accused is an adult within five years of the minor’s age. Hence, if the adult party is no more than five years older than the minor, and the minor is at least 15, the adult may be charged with a lesser offense. This Class E felony charge refers to people aged 21 and older engaging in sexual relations with a person below the age of consent. 

In this case, the applicable charge due to New York’s five year rule may become a Class A misdemeanor – sexual abuse in the second degree – carrying a penalty of up to 1 year in jail. Depending on circumstances, the offender may be eligible for reduced penalties, such as probation.

Example Age of Consent Situations in New York

Here are some common age of consent situations that we want to clarify.

Can a 30 year old date a 17 year old in New York?

A 30-year old is permitted to date a 17-year old in New York. Remember, in New York, the legal age of consent is 17, meaning that an individual 17 or above is deemed legally capable of providing consent.

Can a 20 year old date a 16 year old in New York?

Technically, a 20-year old can date a 16-year old if the parties refrain from sexual activity while the minor is still 16. However, if the parties do engage in sexual activity prior to the minor turning 17 (the legal age of consent), the adult party may find himself or herself subject to statutory charges – albeit a lesser included offense as described above through New York’s five-year-rule.

Can an 18 year old date a 16 year old in New York?

Similar to the above-example, an 18-year old is permitted to date a 16-year old as long as the parties refrain from sexual activity. If sexual activity does occur, the adult party may be subject to certain charges – however, such charges are still rarely brought unless an additional claim of non-consensual sexual activity is first brought against the adult party.

Can a 17 year old sleep with a 21 year old in NY?

Section 130.25 of the New York Penal Law criminalizes statutory rape. The law states that any person over the age of 21, who has sexual intercourse with an individual under the age of 17 commits rape in the third degree. Rape in the third degree is also applicable to sexual intercourse with an individual that is incapable of consent or consent is withheld. Rape in the third degree is a class E felony offense in New York.

Hence, at 17 years old, the individual is deemed legally capable and at the age of consent to enter freely into this sexual relationship.

About Defense Strategies Against Statutory Rape Charges

New York and many other states have made it very difficult to defend against statutory rape charges, however, there are ways in which an experienced defense attorney can fend off an active prosecution or prevail at trial.

First, it is important to note scenarios which do not provide a defense to statutory rape charges.

Consent is Not a Defense

The whole point surrounding statutory rape rules is that an individual (in New York, 16 or under), is deemed too young to even consent to sexual activity.

Mistake or Lack of Intent is Not a Defense

The adult party may claim that he or she, in good-faith, believed the younger party to be 17-years old. Maybe the younger individual sent a fake birth certificate or just relayed to the adult that he or she was 17 years old when in reality he or she was younger. This mistaken belief is not a defense for the adult party at a trial.

Given the above examples, one can see the difficulty in defending against statutory rape charges, which are essentially “strict liability.” However, the above-examples do provide excellent mitigation material that a skilled attorney can use to have charges deferred or reduced during a prosecution. In the event of a conviction, good-faith mistaken belief or even consent, in some scenarios, will persuade a Judge to impose a lesser-sentence on an individual charged with statutory rape.

Handle Statutory Rape Charges with the Law Offices of Jason Goldman

As a former prosecutor who handled such cases for the government, the Law Offices of Jason Goldman has an inside look at how rape and sexual assault cases are investigated, built and prosecuted.

If charged with statutory rape, hire an experienced criminal defense defense attorney who knows how to defend against these matters or how to have charges reduced in an effort to lower one’s sentencing exposure.

Even if you have not yet been charged but have engaged in a relationship which could subject you to a prosecution, you should still seek out an experienced criminal defense attorney to gather and preserve certain evidence early on which can be pivotal later on in convincing the government to decline charges against you.