New York law makes it illegal for someone to have consensual sex with a minor younger than 17. Violators of this law commit 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.
Like many other states, there's no "statutory rape" law in New York. Rather, these offenses are charged as sex offenses—including rape—depending on the sexual act and age of the parties.
The age of consent for sexual relations in New York is 17 years old, meaning until a person turns 17, they cannot legally consent to sexual activity. A person who has sexual activity with someone younger than 17 can be charged with a sex crime. (More information on these crimes is below.)
While many offenders attempt to use consent as a defense, this does not constitute a sufficient defense in sex crime prosecutions involving a victim younger than 17.
Another common defense in rape prosecutions is mistake of age. Defendants accused of statutory rape often claim that they had no reason to know their partner was underage. They may argue the child said they were 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.
Changes made to state law in 2021 raised the age of consent for marriage to 18 years old, which effectively abolished the state's marital exception to statutory rape charges.
A person who commits statutory rape can face charges for rape, criminal sexual acts, sexual abuse, or sexual misconduct. Penalties depend on the ages of the defendant and victim and the sexual conduct that occurred, as described below.
The crime of rape involves sexual intercourse (penetration, however slight) with another person by forcible compulsion or when the victim is incapable of consent because they are physically helpless or younger than a certain age. For statutory rape (unable to consent due to age), the following penalties apply.
First-degree rape. First-degree rape charges apply when the (1) victim is younger than 11 or (2) the victim is younger than 13 and the offender is 18 or older. Such an offense constitutes a Class B felony, which carries a penalty of up to 25 years in prison.
Second-degree rape. This offense level includes sexual intercourse between parties who are more than four years apart in age and the defendant is at least 18 years old and a minor is younger than 15. An example would be a 19-year-old and a 14-year-old. This offense is a Class D felony, and a conviction can result in up to seven years in prison.
Third-degree rape. Third-degree rape charges apply when the defendant is 21 or older and has sex with someone younger than 17 years old, such as a 21-year-old and a 16-year-old. This offense is a Class E felony, which is punishable by up to four years in prison.
The offense of a criminal sexual act involves oral or anal sexual conduct rather than sexual intercourse. The following penalties apply when the victim cannot consent due to age.
First-degree criminal sexual act. These charges apply when the (1) victim is younger than 11 or (2) the victim is 11 or 12 years old and the offender is 18 or older. This offense is a Class B felony, and a conviction can land a defendant in prison for up to 25 years.
Second-degree criminal sexual act. A defendant is guilty of a second-degree criminal sexual act when they engage in oral or anal sexual conduct with someone who is under 15, and the offender is 18 or older. A guilty defendant faces a class D felony conviction and up to seven years in prison.
Third-degree criminal sexual act. Third-degree criminal sexual act charges apply when the defendant is 21 or older and engages in oral or anal sexual conduct with someone younger than 17 years old. This offense constitutes a Class E felony and carries up to four years in prison.
Sexual abuse crimes include sexual contact or touching, even over clothing, in an arousing or sexually gratifying way. For sexual abuse based on age, the offense levels are as follows.
First-degree sexual abuse. A person commits first-degree sexual abuse when the (1) victim is younger than 11 or (2) the victim is 11 or 12 years old and the offender is 21 or older. Such an offense is a Class D felony, which is punishable by up to seven years in prison.
Second-degree sexual abuse. A defendant is guilty of second-degree sexual abuse when the victim is younger than 14. Second-degree sexual abuse constitutes a Class A misdemeanor and subjects a guilty defendant to up to 364 days in jail.
Third-degree sexual abuse. Third-degree sexual abuse includes sexual contact between a minor who is 15 or 16 years old and a defendant who is less than five years older than the victim (for instance, a 16-year-old and 19-year-old). This offense is a Class B misdemeanor, which can result in up to three months in jail.
Sexual misconduct charges generally apply to consensual sexual activity (intercourse or oral or anal sexual conduct) with a person younger than 17 and the parties are close in age (basically, they're not within the age ranges applicable to rape or criminal sexual acts). For instance, a prosecutor could charge the following individuals with sexual misconduct:
Sexual misconduct constitutes a class A misdemeanor, which carries penalties of up to 364 days in jail.
Named after Shakespeare's young lovers, "Romeo and Juliet" laws are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age.
New York doesn't have a Romeo and Juliet exception for consensual sex between minors or those close in age. However, as seen above, state laws take into account the parties ages when doling out punishments. For instance, third-degree sexual abuse is a low-level misdemeanor and involves a minor who is 15 or 16 and someone who is less than five years older than the minor. The same is true for consensual sex between a minor who is 11, 12, 13, or 14 years old, and a defendant who is younger than 17.
For these close-in-age relationships, although the parties are protected from felony prosecution, they may nonetheless be charged for a misdemeanor, as outlined above. Sexual activity with a person younger than 11, however, always constitutes a felony, and a conviction can result in up to 25 years in prison, depending on the facts of the case.
The Sex Offender Registration Act requires, in addition to the applicable fines and incarceration time, people convicted of certain sex crimes (including statutory rape) to register as sex offenders. Depending on the level of offense, registration lasts from 20 years to life. Failure to register can result in additional felony charges. Juveniles who have been adjudicated as youthful offenders or juvenile delinquents have no requirement to register. However, a juvenile tried and convicted as an adult of a sex crime must register.
Laws can change at any time. If you are facing a statutory rape charge, contact an experienced criminal defense attorney who regularly practices in your area. Numerous defenses may apply to statutory rape charges, and a qualified 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 and will know how prosecutors and judges typically handle cases like yours.
If you are a victim of sexual assault or rape, find online help and local resources at RAINN.org or 800-656-HOPE (4673).
(N.Y. Penal Law §§ 70.00, -.15; 130.00, -.20, -.25, -.30, -.35, -.40, -.45, -.50, -.55, -.60, -.65; N.Y. Correct. Law §§ 168 to 168-t (2021).)
Need a lawyer? Start here.