Types of Rape and Possible Defense Strategies in NY

There are various types of sex crimes in New York – commonly categorized as either rape, sexual assault, or sexual abuse.

New York Penal Code § 130.05(1) lays the foundation for any sex crime charge, which states that “Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the accuser.”

The following are common sex crimes that are frequently charged by prosecutors in New York:

• Aggravated sexual abuse
• Child Pornography
• Forcible Touching
• Indecent exposure
• Internet sex crimes
• Sexual abuse
• Solicitation
• Prostitution
• Rape charges
• Sexual harassment
• Sexual misconduct
• Sexual offender registration
• Sexual contact with a minor

Why is it Important to Know the Different Forms of Rape?

It is important for you and your defense attorney to carefully sift the charging documents – whether a criminal court complaint or an indictment – in order to determine not only what type of sex crime you are being charged with (Rape, Sexual Assault, Sexual Abuse), but to also determine the substantive allegations underlying the instant offense. This will help with understanding what exactly the purported victim is claiming in terms of how the crime was carried out.

Notably, carefully reading the elements of each charge can be vital for filing motions to later dismiss some or all counts of an indictment or to gain an acquittal at trial. Indeed, as it relates to sex crimes cases, certain charges will hinge on what exact sexual contact did or did not take place.

For example, some crimes will specifically require intercourse while others will only call for a vague “sexual contact.” Other charges may hinge on whether or not an individual had the ability to consent based on age or incapacity.

What is Child Sexual Abuse?

Child sexual abuse in New York is a broad range of charges which are brought whenever a perpetrator is alleged to have sexual contact with a minor. Moreover, the New York Child Victims Act has recently amplified law enforcement’s ability to bring related criminal charges against perpetrators of child sexual abuse. 

The types of charges that you could face include those under Article 130. These sex offenses include:

• PL 130.20 Sexual misconduct, an A misdemeanor
• PL 130.25 Rape in the third degree, an E felony
• PL 130.30 Rape in the second degree, a D felony
• PL 130.35 Rape in the first degree, a B felony
• PL 130.40 Criminal Sexual Act in the third degree, an E felony
• PL 130.45 Criminal Sexual Act in the second degree, a D felony
• PL 130.50 Criminal Sexual Act in the first degree, a B felony
• PL 130.52 Forcible touching, an A felony
• PL 130.53 Persistent sexual abuse, an E felony
• PL 130.55 Sexual abuse in the third degree, a B misdemeanor
• PL 130.60 Sexual abuse in the second degree, an A misdemeanor
• PL 130.65 Sexual abuse in the first degree, a D felony
• PL 130.95 Predatory sexual assault, an A-II felony
• PL 130.96 Predatory sexual assault against a child, an A-II felony
• PL 130.65a Aggravated sexual abuse in the fourth degree, an E felony
• PL 130.66 Aggravated sexual abuse in the third degree, a D felony
• PL 130.67 Aggravated sexual abuse in the second degree, a C felony
• PL 130.70 Aggravated sexual abuse in the first degree, a B felony
• PL 130.75 Course of sexual conduct against a child in the first degree, a B felony
• PL 130.80 Course of sexual conduct against a child in the second degree, a D felony
• PL 130.85 Female genital mutilation, an E felony
• PL 130.90 Facilitating a sex offense with a controlled substance, a D felony

As with all other rape, sexual abuse, and sexual assault cases, the above list of charges will hinge upon the precise allegations put forth against an individual by a child or the child’s guardian. 

Of course, many of the same defenses exist for these charges as they do with standard sexual assault cases. However, experienced defense attorneys are often able to point out why a child’s credibility may be impeached due to their age, lack of understanding as it relates to the significance and consequences of the charges, and their impressionable nature. As it relates to the latter concern, unfortunately many parents who are engaged in vicious custody battles have used their child in common to lodge sexual abuse claims against the other partner. This sometimes results in the arrest and prosecution of the accused party – an experienced defense attorney knows to look out for this motive with any child sexual abuse claim.

As it relates to lack of understanding, in New York, a child is deemed unable to testify under oath if he or she is under the age of nine (see CPL 60.20 [2]). Hence, New York courts have realized that children under the threshold may not be able to appreciate the difference between a truth and a lie, which is critical for a defense attorney to impart on a jury when an allegation is lodged by a young child.

Indeed, the Law Offices of Jason Goldman recently won an appeal for an individual on this very issue after he was accused of child sexual abuse by a two-year-old. For more on this matter, please see our Press page.

What is Date Rape?

The term “date rape” is commonly used in rape cases whereby an individual is unable to consent due to the use of drugs or alcohol which may have been provided to them unknowingly. Some common date rape drugs are ecstasy, rohypnol (roofies), and gamma hydroxy butyrate (ghb).

In New York, “date rape” is covered by New York Penal Law §130.35. This is a class-B felony which can result in up to a 25-year prison sentence.

Individuals charged with date rape are typically alleged to have engaged in sexual intercourse with another person by forcible compulsion or one of the following:

• Who is incapable of consent by reason of being physically helpless;
• Who is less than eleven years old;
• Who is less than thirteen years old and the actor is eighteen years old or more.

When rape cases are brought under a date rape theory, a successful defense will typically hinge entirely on the issue of consent. Consent, as is common with most rape cases, is the critical element when facing allegations from a sex crimes victim who claims that he or she was too incapacitated to consent. However, date rape charges can be difficult to prosecute as parties may not remember what happened clearly enough to sustain a conviction.

An experienced defense lawyer in this realm will likely look to hire an independent toxicologist to analyze the victim’s substance levels and then opine as to whether or not the individual was capable of providing a voluntary and conscious consent.

What is Gang Rape?

Gang rape in New York is simply a sexual assault or rape charge that is brought against more than one individual. Hence, a sex crimes victim may claim that numerous individuals engaged in an illegal sexual contact with him or her at the same time. If probable cause exists, these individuals are likely to then be arrested and prosecuted jointly as co-defendants.

If you find yourself as a co-defendant in a gang rape case, it is critical that your defense attorney isolate the exact actions for which you are being accused of individually and separate from that of your co-defendant. To the extent possible, an experienced defense attorney will seek to have the case tried separately, whereby your trial will take place in front of a different jury than that of your co-defendant. This tactic is often a favorable way for a defendant to have a fair and impartial jury who will determine the facts as it pertains to that individual alone as opposed to the co-defendant’s actions together.

What is Home Invasion Sexual Assault?

Oftentimes, prosecutors will bring home invasion sexual assault charges which is when a sexual assault allegedly took place during a home invasion, burglary, or robbery. When this common fact pattern presents itself, defense attorneys again will look to isolate and separate the various charges, defending each independently to the extent possible.

As with gang rape, a home invasion rape or sexual assault frequently involves more than one perpetrator, and an experienced defense attorney should seek to separate the trials in an effort to have their client judged independently from that of another actor.

What is Incest?

New York State defines incestuous relationships as one between persons whom they know to be related to each other either through marriage or blood, as an ancestor, descendant, brother or sister either by full blood or half blood, are an aunt, uncle, niece or nephew.

This offense is typically prosecuted as a class-E felony, meaning that prison time may be imposed following a conviction.

The lowest degree of this offense is charged when a person has married or has engaged in sexual conduct, either oral, anal or sexual with someone who is a relative. The law specifically states that the relative can be either by blood or by marriage, such that step-relatives are included in the overall list of family members. This degree is a class E felony and can result in up to four years in prison. This offense becomes a class D felony only if a person commits rape in the second degree or a criminal sexual act in the second degree to a person who is related to them.

The highest degree of this offense is charged when a person has committed rape in the first degree or criminal sexual act in the first degree and the victim is a relative. This level of this offense is a class B felony, meaning substantial time could be ordered to be served by the court. To reiterate, relatives that are included under the law are anyone who the defendant knows to be a descendent, ancestor, aunt, uncle, niece or nephew or brother or sister either by blood or by marriage. This broadens the definition of relatives from the immediate family of grandparents, parents and siblings to include those who may have non-traditional families and therefore have step-relatives or half-siblings.

Notably, the class-D felony version of this offense deals with non-consensual acts between relatives, while the class-E version deals with consensual sexual contact between relatives.

What is Marital Rape?

Also known as spousal rape, marital rape in New York stands for the simple concept that rape (New York Penal Law 130.05), defined as the forced act of intercourse without the victim’s consent, can apply to spouses. Nonetheless, spousal rape is a difficult area to litigate because of the nature of the relationship between the parties. The key legal issue in these cases is consent, which can be a very complex area. It is also important to know that spousal rape can occur with a current marital partner, ex-spouse or long-term partner. The actual sex act that occurs can vary, with the crucial element being whether there was consent or not.

Even though spousal rape takes place between married couples and long-term partners, it is still classified as a serious sex crime with significant consequences. Examples of marital rape often include the following scenarios where spousal rape occurs where the victim suffers from mental incapacity, which can include the use of drugs or alcohol and consents to sex (but doesn’t appreciate what they are doing), or doesn’t consent.

What is Sexual Harassment?

Sexual harassment is a blanket term that covers various forms of illegal or unwanted sexual touching in New York. Pursuant to Penal Law §130.52, it is illegal for any person to forcibly touch another person’s sexual organs without permission.

Even if no contact results, someone may still be charged and prosecuted. New York Penal Law §240.26 prohibits repeated actions that threaten another’s well-being. Making repeated sexual jokes or comments could fall under this category. Continuously contacting another individual against their wishes and in a sexual nature may also fall within this purview.

In the aftermath of the #MeToo movement, sexual harassment has become more generalized, with claims being brought against individuals in both a civil and criminal capacity. Indeed, many individuals have looked to file some form of a harassment complaint against a boss or co-worker in a professional environment. Similarly, public figures or those in a position of power have found themselves in the enviable position of being named as a defendant in a sexual harassment case. 

Sexual harassment in the workplace is unwanted sexual advances, sexual contact, or other physical or verbal actions that are sexual in nature. The conduct must affect the employee’s job, unreasonably interfere with work performance, or create an intimidating, hostile, or offensive work environment. Types of sexual harassment in the workplace can include direct sexual contact or conduct by the employer which includes sexual remarks or advances.

Quid pro quo sexual harassment occurs when an employer or supervisor asks or suggests through physical conduct that an employee perform sexual favors in return for some benefit at work including a promotion or career advancement. If any employment decision is based upon the satisfaction of a sexual demand, that is quid pro quo sexual harassment. Even a consensual sexual relationship can be the product of sexual harassment if the employee is coerced into it due to promises of a promotion or career advancement.

Hostile work environment sexual harassment occurs where an employee is subject to sexually verbal or physical behavior in the workplace. This includes conduct which is sexual in nature and severe enough to create an offensive working environment. This conduct can include communications of derogatory comments, epithets, slurs, and jokes; or sexually suggestive, graphic or sexually abusive language.

Needless to say, being accused of sexual harassment – whether in a civil or criminal realm – can have a devastating impact on an individual’s career and/or personal life. This follows regardless of the case outcome. If you are a public figure and you have been accused of sexual harassment, the best strategy includes not just defending the case in court on its merits but also defending it strategically in the media with a sound public relations and legal team.

What is Substance Facilitated Rape?

In New York as well as many other states, it is illegal to give another person incapacitating drugs without that person's consent in order to have sex with that person. If you violate this law, you may be arrested and prosecuted under the charge of facilitating a sexual offense with a controlled substance pursuant to New York Penal Law § 130.90. Such drugs include controlled substances as well as any preparation, mixture or compound that requires a prescription.

This charge is very similar to what is commonly referred to as “date rape.” A common fact pattern includes situations whereby two individuals meet for the first time out or on a date, with one party experiencing some sort of blackout or unconsciousness. The victim in this scenario ultimately comes to learn that he or she had sex with the other party and ultimately accuses that individual of gaining consent through the use of substances on the other.

A common gray area arises in these cases where both individuals were highly intoxicated throughout the encounter – in this situation, a veteran defense lawyer can poke holes at the accuser’s claim and be able to convince a jury that the defendant, due to his or her own incapacity, may not have had the required mens rea (intent, knowledge) to commit the crime which is now being charged.

Possible Defense Strategies Against Rape Charges

There are a number of defenses that can be put into place to defend against rape, sexual assault, and sexual abuse charges.

Consent Defense

One of the more popular defenses, a consent defense of course encompasses the argument that the supposed victim voluntarily and knowingly consented to sexual intercourse or sexual contact and therefore the perpetrator should not be convicted of such crimes. However, there is much more to this defense than merely claiming that the victim consented.

It is crucial for your defense attorney to show the timeline of your relationship, the sexual history between both parties, the detailed facts surrounding the incident in question, and the aftermath. Dissecting each of these windows will help mount a consent defense by showing the history between the two parties and that there was in fact a consensual relationship prior to the alleged unlawful or forcible touching.

Oftentimes, even if there was not a long history between both parties, witnesses from the specific night in question and outcry witnesses during its aftermath may be able to support the claim that the victim had in fact may have provided legal consent despite other issues at play such as the use of substances.

Medical and Rape-Kit Defense

In line with consent, it is crucial that your defense attorney closely analyze the victim’s medical records and rape-kit record from the treatment he or she received after the incident. If the individual did in fact seek medical treatment, it will be paramount to determine if the rape-kit does or does not reveal tears and other physical injuries which may be consistent with forcible penetration.

If such injuries do not exist or even if the individual does not seek medical attention, this of course can be used favorably for the defense at trial. Just as important is for your attorney to look into the statements made by the victim to medical professionals and to closely analyze what claims were made in the hours immediately after the alleged incident.

Ulterior Motives Defense

Any good defense attorney will look towards the accuser’s timeline as well as the finer points of the relationship between the accuser and the alleged perpetrator. Some common ulterior motives which can underlie a false sexual assault allegation include,

• Financial motives
• Child custody motives
• Professional/workplace motives

All too common is the scenario where a bitter custody battle all of a sudden includes a sexual assault claim – this will help the purported victim in gaining the upper hand during the divorce and/or child custody arguments. All too common is also the scenario where the accused party has deep pockets and is then targeted by an accuser who is looking for a payday through a civil lawsuit, which frequently follows an allegation of a criminal sexual contact.

Contact a Rape & Sexual Assault Defense Lawyer

If you have been charged with sexual assault, sexual abuse, or rape, contact an experienced criminal defense attorney immediately. Even if you are not yet charged but believe there is an investigation taking place, contact a defense attorney in order to take affirmative and preventative steps which can prove crucial for you later on during a prosecution. As a former prosecutor who handled sex crimes, Jason Goldman is well-equipped to defend individuals against such accusations and has resolved many sex cases favorably with either a dismissal or an acquittal.