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New York Penal Code § 130.25: Rape in the Third Degree

New York Penal Code § 130.25: Rape in the Third Degree

If you or a family member have been charged with rape in the third degree, it is important to understand what those charges mean and how you can defend against them.

The Charge

As might be expected, New York State may charge someone with rape in the third degree for having sexual intercourse without consent. In addition, a person can be charged if they have intercourse with someone who is incapable of consenting or, under law, cannot give consent due to their age. This can, in some situations, make it easier for a prosecutor to prove this charge than the more serious charges of first degree rape or second degree rape, as physical force is not necessarily required.

Inability to Give Consent

A victim of third degree assault may be unable to give consent for a number of reasons. Some of the more obvious are if the victim is under the influence of a substance, unconscious, has a condition that limits their ability to communicate or makes them physically helpless, suffers a mental incapacity, or otherwise has no understanding of their consent.

The statute also includes two other scenarios: if the victim is under the age of 17 and the person charged is over 21 or if the victim is in the custody of the Department of Corrections and Community Service and the person charged works for the department. In these situations,the victims are, by statute, incapable of giving consent, even if all evidence points otherwise.

Possible Defenses

If you have been charged with third degree rape, there are a number of possible defenses to the charge. As with any crime, you can attack the state’s evidence by providing an alibi, finding inconsistencies in witness testimony, and highlighting weaknesses in any physical evidence.

If the state is arguing that the victim was unable to understand their consent to intercourse, you might present evidence that the victim was, in actuality, fully understanding. You may outright challenge the victim’s version of events; if the victim is mentally disabled, their testimony may be unreliable without a third party witness’s corroboration.

Be aware, however, that if the victim was underage or a resident of a correctional facility, they are, by law, unable to give consent. No matter how enthusiastically they may agree to intercourse, this is still not consent under the statute.

Severity of the Charge

If you have been charged with third degree rape, you will likely notice that it is the least severe of New York’s rape charges. However, it is still a felony that carries prison time. If you or your loved one is convicted for rape, they could be sentenced up to four years in prison for a first offense. The length of that sentence will set based upon aggravating or mitigating circumstances. Because the judge has discretion when deciding the ultimate sentence, a person could receive less than a year in jail.


The judge may also order probation, which could last several months to several years after your release from prison. It is important that you take probation seriously, as the state of New York levels hefty penalties against those who violate their probation. If the courts find that you violated your probation, you could be ordered to return to jail or add new terms to your probation.

You should also be aware that, while you are on probation, you could be subject to random, warrantless searches, drug testing, psychological or drug treatment. You may also be required to be employed and regularly check in with a probation officer. With this amount of supervision and scrutiny, it is easy to make a misstep that costs you your freedom.

Post-Conviction Consequences

Even after our sentence is complete, you could continue to face consequences. Not only will you have a felony on your record, which could impact your ability to find employment or housing, but you will also be required to register as a sex offenders. That is why it is so important to retain an attorney as soon as possible prepare the strongest defense.

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