What is Rape? What to Do if Falsely Accused of Rape in NY

Jason Goldman
February 23, 2024

Table of Contents

No matter the state, rape is a serious sex crime that involves having nonconsensual sexual intercourse. Outside of forcible, physical intercourse, nonconsensual sex may also occur where an individual is unable to consent due to age or incapacity.

Initially, many states vary in terms of what constitutes statutory rape. Simply stated, statutory rape means that someone of a certain age is prohibited from having sexual intercourse with an individual below a specific age. Consent is not a defense to statutory rape because the individual is deemed incapacitated or unable to consent due to age.

For example:

  • In New Jersey, the age of consent to engage in sexual activity is 16. Those 15 years of age or younger are unable to legally consent.
  • In Florida, the age of consent is 18. And, in New York, the age of consent is 17.

What is Considered Rape in NY?

Focusing on New York, there are many different types of rape and varying degrees of rape and sexual assault, each of which requires different elements to be proved in a court of law.

Rape in the First Degree in NY

Rape in the first degree is a class B felony and is codified by Penal Law 130.35. One of the following must be satisfied for these charges to be brought: 

  • Engage in sexual intercourse with another person by forcible compulsion
  • Engage in sexual intercourse with another person who is physically helpless
  • Engage in sexual intercourse with another person who is less than 11 years old
  • Engage in sexual intercourse with a child who is less than 13 years old and you are at least 18 years old.

The maximum sentence for being convicted of rape in the first degree is 25 years in prison as under New York Penal Law 130.35. Rape in the first degree is further classified as a violent felony offense. This means that if you are convicted you will face a mandatory minimum sentence of 5 years in prison.

Rape in the Second Degree in NY

Rape in the second degree is codified by Penal Law 130.30. For this charge to be brought, one of the following must be satisfied:

  • Being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or
  • He or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

Because rape in the second degree is a class D felony if you are convicted the judge can sentence you to up to 7 years in prison. Since it is also classified as a violent felony offense, the minimum prison sentence is 2 years. Part of your sentence may also be a probation term of 10 years.

Rape in the Third Degree in NY

Codified by Penal Law 130.25, a person is guilty of rape in the third degree when:

  • He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old;
  • Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or
  • He or she engages in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent.

This charge carries a maximum prison sentence of four years.

Is Rape Different from Sexual Assault?

Rape is considered a sexual assault but not all sexual assault is considered rape. Within the sexual assault umbrella, there are varying degrees of severity of the charge depending on what conduct is alleged.

Notably, outside of the common Rape charges outlined above, an individual may also be charged with sexual abuse or sexual assault.

Sexual Abuse in the First Degree

Sexual Abuse in the First Degree is codified by New York Penal Law 130.65 and is charged when an individual subjects another individual to sexual contact, made for the purpose of the actor’s sexual gratification, and the contact is either achieved through forcible compulsion, or while the alleged victim is in a physically helpless state.

Forcible compulsion does not require that the alleged victim be injured in any way. However, it does necessitate that the alleged perpetrator used physical force or the threat of physical force in order to complete the assault. Common fact patterns include holding a person up against a wall, holding them by their neck, or threatening the use of force in a similar fashion.

Sexual Abuse in the Third Degree

Another common charge outside of rape is Sexual Abuse in the Third Degree - A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent; except that in any prosecution under this section, it is an affirmative defense that

  • such other person's lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and
  • such other person was more than fourteen years old, and
  • the defendant was less than five years older than the other person.

How to Determine if What Happened Was Rape?

There is no one way to determine the proper, sufficient evidence for a rape or sexual assault claim. Indeed, these charges come in all shapes and sizes, with some cases having much stronger evidence (recorded, controlled calls, rape kits, video surveillance, medical records, and outcry witnesses), while other cases may simply hinge on what he said vs. she said.

It is common misbelief that the latter example is not “enough” to bring a case or convict somebody. Yet, in reality, many individuals have been prosecuted based on a victim’s word alone, even if other evidence is virtually non-existent. Given the standard that the prosecution is held to - beyond a reasonable doubt - these cases are certainly favorable to the defense but can still result in a conviction should the jury credit the accuser’s testimony.

At the same time, while cases with additional forms of evidence may seem stronger for the government, they also allow for holes to be poked at various inconsistencies which may exist between an accuser’s police report, medical report, 911 call, and trial testimony.

A good defense lawyer can use these inconsistencies to impugn the accuser’s credibility and believability and ultimately introduce such reasonable doubt into a juror’s mind at trial.

Main Types of False Allegation Cases

False allegations may be lodged for a variety of reasons, but there are classic examples which appear more common in today’s society. Many individuals may be motivated to lodge a false rape or sexual assault complaint for different reasons.

  • Oftentimes, two people may be battling through a divorce or child-custody issues. A quick way to gain the upperhand in these scenarios is for one party to claim that the other engaged in sexual abuse and ultimately have that person charged criminally.
  • Other motives may be financial in nature – it is all too common to see one party claim sexual assault against another individual who is wealthy. Indeed, a sexual assault charge in these scenarios is usually followed up by a civil suit whereby the victim also sues the party for monetary damages.
  • In the same realm, it is common to see an aggrieved party file a claim against a public figure such as a politician, athlete, or celebrity, with the goal of following up with a lucrative civil suit.

Impact of False Allegations

False allegations are prevalent in today’s society. Some reports and studies have found that up to 1 out of every 10 reports of sexual assault are false.

Being falsely accused of rape or sexual assault has serious impacts from a reputational, professional, personal, and legal standpoint. Of course, being labeled a rapist, even before any sort of charges or conviction, is difficult to come back from. Indeed, many accusers and victims of domestic violence, sexual assault, and rape publically air out their accusations before any sort of charges are ever brought. This is commonly seen through social media and other forms of publication. 

From a professional standpoint, especially if the alleged incident took place in a work-environment, an internal investigation may be launched by human resources. This is important as it may lead to an individual being put on leave or being fired after such allegations are lodged. Even if these consequences do not take place, an accused individual may make damaging statements during this investigation which can certainly be used later on against them in a criminal proceeding. Hiring an experienced defense attorney, even during this initial investigatory phase, is therefore crucial. 

Lastly, from a legal standpoint, the impact of being accused of rape or sexual assault is significant. A criminal case may be initiated which results in an arrest, bail potentially being set, and a prosecution. Most importantly, if your case is not defended correctly, a conviction may result which can lead to serious prison time.

What to Do if I’ve Been Falsely Accused of Rape?

In what is now considered the post #MeToo era, many individuals have found themselves falsely accused of rape or sexual assault. Indeed, the lines have been blurred and law enforcement and prosecutors have taken a new approach to evaluating claims from potential rape victims or survivors of sexual assault. As a result, many innocent individuals have found themselves within the prongs of the criminal justice system and are left to defend themselves against these incredibly serious charges with incredibly serious penalties. 

If you have been accused of rape or if you believe an accusation is about to be lodged against you, take the following steps.

Take an Inventory of Your Relationship & Contact with the Other Party

Save all correspondence including text messages, direct messages, videos, emails, and other communications. These may prove to be vital in your defense later on. An experienced criminal defense attorney knows that having their hands on this material early on in the process will likely change the outcome for the better years down the line during a criminal prosecution or civil complaint.

Be Wary of the Controlled Call

A common tactic for law enforcement, upon receiving a sexual assault complaint, is to set up a controlled or recorded call whereby the alleged victim calls the alleged perpetrator and attempts to have the individual admit to their wrongdoing. Of course, the individual being accused rarely considers that this call is being recorded and oftentimes makes a damaging admission not because they are guilty but because they want to tell the other party what they want to hear in an effort to make the problem go away. If you believe you are being investigated or being accused by another, be on the lookout for this phone call and simply do not answer.

Hire a Defense Attorney Immediately

Individuals tend to wait too long before hiring an experienced attorney in these situations. Instead, by hiring an attorney, you can prevent yourself from making damaging admissions or being apprehended or arrested without notice.

Defend Rape Charges with 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 cases are built and prosecuted. If charged with rape, hire an experienced criminal defense defense attorney to prevent issues which can not simply by undone later on during a criminal case against you.