In New York, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone younger than 17), even if the sex is consensual. Those who break the law have committed statutory rape.

Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term, “statutory” rape. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.

Though statutory rape does not require that the prosecutor prove an assault, it is still rape. Of course, rape that does involve force or an assault is illegal in New York and prosecuted as forcible rape. Assaults of a sexual nature may also be charged under the state’s assault and battery laws and child enticement and abuse laws.

New York’s Statutory Rape Laws and Potential Penalties

Statutory rape is prosecuted under New York’s rape and sexual abuse laws. Penalties depend on the ages of the defendant and victim, and the conduct that occurred, as described below.

First degree rape includes sexual intercourse (penetration, however slight) between a minor who is younger than 11 years old and a defendant of any age or between a minor under 13 years old and an adult. This offense is a Class B felony, which is punishable by at least five (and up to 25) years in prison. (N.Y. Penal Law § 130.35 (2018).)

Second degree rape includes sexual intercourse between a defendant who is at least 18 years old and a minor who is younger than 15, unless the defendant is less than four years older than the minor. This offense is a Class D felony, and a conviction can result in up to seven years in prison. (N.Y. Penal Law § 130.30 (2018).)

Third degree rape includes sexual intercourse between a minor who is younger than 17 years old and a defendant who is at least 21 years old. This offense is a Class E felony, which is punishable by up to four years in prison. (N.Y. Penal Law § 130.25 (2018).)

Criminal sexual act in the first degree includes oral or anal sexual contact between a minor who is younger than 11 and a defendant of any age or between a minor who is younger than 13 and a defendant who is at least 18. This offense is a Class B felony, and a conviction can lead to a sentence of at least five (and up to 25) years in prison. (N.Y. Penal Law § 130.50 (2018).)

Criminal sexual act in the second degree is a Class D felony and includes oral or anal sexual contact between a defendant who is at least 18 years old and a minor who is younger than 15, unless the defendant is less than four years older than the victim. Penalties include up to seven years in prison. (N.Y. Penal Law § 130.45 (2018).)

Criminal sexual act in the third degree includes oral or anal sexual contact between a minor who is younger than 17 and a defendant who is at least 21 years old. This offense is a Class E felony, and a conviction can lead to as many as four years in prison. (N.Y. Penal Law § 130.40 (2018).)

First degree sexual abuse includes sexual contact (sexual touching, even over clothing, in an arousing or sexually gratifying way) between a minor who is younger than 11 years old and a defendant of any age or between a minor who is younger than 13 and a defendant who is at least 21. This offense is a Class D felony, which is punishable by up to seven years in prison. (N.Y. Penal Law § 130.65 (2018).)

Second degree sexual abuse includes sexual contact between a minor who is younger than 14 years old and a defendant of any age. This offense is a Class A misdemeanor, and a conviction can lead to a sentence of up to one year in jail. (N.Y. Penal Law § 130.60 (2018).)

Third degree sexual abuse includes sexual contact between a minor who is 15 or 16 years old and a defendant who is at least five years older than the victim. This offense is a Class B misdemeanor, which can result in up to three months in jail. (N.Y. Penal Law § 130.55 (2018).)

Sexual misconduct includes oral or anal sexual contact or sexual intercourse with someone who is younger than 17. Prosecuted as a Class A misdemeanor, penalties may include up one year in jail. (N.Y. Penal Law § 130.20 (2018).)

Sex Offender Registration

State law requires, in addition to the applicable fines and prison time, that people convicted of certain sexual crimes (including statutory rape) must register as sex offenders.

Defenses to a Statutory Rape Charge

Defendants charged with statutory rape have the usual defenses available to all criminal defendants, such as “Someone else committed this crime,” or “The alleged conduct did not occur.” One or more of the following defenses could also apply.

Marital exception

New York has a marital exemption for statutory rape that allows consensual sex between a married minor and that minor’s adult spouse, even though their ages would prohibit it if they were not married. (N.Y. Penal Law § 130.10 (2018).) The marital defense is a remnant of the marital rape exemption.

Minors are legally incapable of giving consent to having sex; so for example, if Jen, a 15 year old, willingly has sex with Tony, her 23 year old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.

But if Jen and Tony are married and living in New York, Tony need not fear criminal charges for having consensual sex with Jen. This is because New York has a marital exemption to the state’s statutory rape laws.

However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married.

When both parties are minors: The “Romeo and Juliet” exception

Named after Shakespeare’s young lovers, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age.

In New York, there is a partial Romeo and Juliet exemption for consensual sex between a minor who is 15 or 16 and someone who is younger than 21. There is also a partial exception for consensual sex between a minor who is 11, 12, 13, or 14 years old, and a defendant who is younger than 17. This is a partial exception because, while these parties are protected from felony prosecution, they may nonetheless be charged for sexual misconduct (a misdemeanor), which can incur a sentence of up to one year in jail. Sexual contact with a person younger than 11, however, is always a felony, and a conviction can result in up to 25 years in prison, depending on the facts of the case.

Mistake of age

Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the child said that he or she was of age, and that a reasonable person would have believed it. But even if this is true, a defendant cannot rely on a mistake of age—even a reasonable one—to avoid conviction. Mistake of age is not a defense in New York.

Legal Help

Laws can change at any time. If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. Numerous defenses may apply to statutory rape charges, and a lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.

A lawyer can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time) and will know how prosecutors and judges typically handle cases like yours.

Help for Sexual Assault and Rape Survivors

If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.

Updated July 27, 2018

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