First Degree Rape: New York Penal Code § 130.35

Legal Definition of First Degree Rape

In the New York Penal Code, there are three types of rape charges. First degree rape is the most serious felony in the Class B category. According to Penal Code § 130.35, first degree rape is indicated if one of the following scenarios occurs:

  1. A person has sexual intercourse with a child who is younger than 11 years of age;
  2. A person who is at least 18 years of age has sexual intercourse with a child who is younger than 13 years of age.
  3. A person has sexual intercourse with another person by forceful coercion;
  4. A person has sexual intercourse with another person who is helpless physically;
Hypothetical Case A

Suppose an adult male pointed a knife at an adult female, threatening to cause her bodily harm or death if she did not take off her clothes and let him have sex with her. The fearful woman kept the knife in plain view and as the male continued to intimidate her, removed her clothing and did what he commanded her to do. The man then forced himself on the woman and had sexual intercourse with her. In this situation, the adult male could be accused of first degree rape because he forcibly coerced the woman to have sex with him by threatening to inflict bodily harm or, worse yet, kill her. The woman was under duress and complied with the demands of the man, but did not give her consent to have sex with the man who invaded her body.

Hypothetical Case B

An adult man and an adult woman were at a party where they drank alcoholic beverages and smoked marijuana. The two people kept drinking alcohol and smoking marijuana until the woman lost consciousness. While the woman was passed out, the man decided to take advantage of her and had sex with her without her consent. In this situation, it is conceivable that the man could be accused of first degree rape because the woman could not respond and was not able to take care of herself physically. She was, for all intents and purposes, physically helpless during the time that the man had sexual intercourse with her.

Strategy for Defense

An important element that characterizes any rape charge is the absence of consent. Therefore, a viable defense for a person accused of rape must be one that demonstrates and proves that consent was indeed given to take part in the sex act or that the act did not take place at all.

Related Penalties

Imprisonment. The maximum sentence for a conviction of first degree rape is 25 years in prison as a felony Class B offense. First degree rape is further characterized as a violent felony offense. Conviction of a violent felony offence carries a mandatory minimum sentence of five years of imprisonment.

Probation. In addition to imprisonment, a ten-year probation may be levied. While on probation, strict rules dictated by the court must be expressly followed, including checking in with a probation officer on a regular basis.

Required Registration as a Sex Offender. Further, a person accused of first degree rape under Correction Law section 168 (SORA or the Sex Offender Registration Act), is required to register as a sex offender for at least 20 years, and perhaps for as long as a person is alive.

Summary

To reiterate, first degree rape is indicated when one of the following events occurs:

  1. When an adult person has sexual intercourse with a child who is less than 11 years of age; or
  2. When a person who is at least 18 years of age has sexual intercourse with a child who is less than 13 years of age.
  3. When a person has sexual intercourse with another person by forcible coercion;
  4. When a person has sexual intercourse with another person who is incapable of giving consent because they cannot physically help themselves;
Lawyer for First Degree Rape

Defending a person who has been accused of first degree rape can be confusing and complicated. Because of the problematic consequences you might face as a result of being accused of first degree rape, you should contact a lawyer who is experienced in defending people accused of or charged with rape as soon as possible. In the New York criminal courts, the legal advocates at Elliott Adler PC are vastly experienced at representing individuals in who have been accused of having committed a criminal sexual offense, including rape, sexual misconduct, sexual abuse, sexual acts with an under-aged child, a sexual crime facilitated with a controlled substance, and forcible touching.

Contact our office by phone at (212) 785-1300 or go to http://www.newyorkcriminallawyer24-7.com to schedule a no-obligation, free legal consultative meeting to reveal the merits of your case.

Related Offenses

For related offenses, read the following sections:

  1. First Degree Criminal Sexual Act: New York Penal Code § 130.50
  2. First Degree Sexual Abuse: New York Penal Code § 130.65
  3. First Degree Aggravated Sexual Abuse: New York Penal Code § 130.70