New York Penal Law § 130.35 – Rape in the First Degree

Rape in the First Degree is one of the most serious New York sex crimes. New York rape statutes prohibit engaging in sexual intercourse with another person without their consent. First degree rape, however, arises when someone uses forcible compulsion to commit rape or when the victim is incapable of providing consent because they are physically helpless. It is also considered first degree rape if the victim is under 11 years old or the victim is under 13 years old, and the defendant is older than 18. Rape in the First Degree is a class B felony.

Before a judge or jury can convict anyone of Rape in the First Degree, the government must prove each element of the offense beyond a reasonable doubt. The elements of rape are:

• The defendant engaged in sexual intercourse with another person;
• The other person did not consent to the sexual intercourse; and
• One or more of the following applied
  1. The defendant used forcible compulsion;
  2. The victim was incapable of providing consent because they were physically helpless;
  3. The victim was under 11 years old; or
  4. The victim was under 13 years old, and the defendant was 18 or older.

In this context, “sexual intercourse” refers to any penetration of the penis into the vaginal opening. Additionally, “forcible compulsion” means to use physical force or to make threats that put another person in fear of death or physical injury or that they would be kidnapped.

Examples of Rape of the First Degree include the following:

• Threatening someone with a weapon unless they agree to have sex;
• Holding someone at knifepoint while having sex with them against their will;
• An adult having sex with a child under 11;
• An 18-year-old has sex with a 12-year-old girlfriend.

While other types of sexual conduct, such as oral sex and anal sex, are not included in the definition of Rape in the First degree, these acts are covered under related statutes. Additionally, the concept of consent is irrelevant when the alleged victim is a minor, as under New York law, a minor cannot legally provide consent to sexual intercourse.

Often, prosecutors bring Rape in the First Degree charges along with one or more of the following:

• Sexual Misconduct – NY Penal Law § 130.20
• Rape in the Third Degree – NY Penal Law § 130.25
• Rape in the Second Degree – NY Penal Law § 130.30
• Forcible Touching – NY Penal Law § 130.52
• Sexual Misconduct – NY Penal Law § 130.20
• Sexual Abuse in the Second Degree – NY Penal Law § 130.55
• Sexual Abuse in the First Degree – NY Penal Law § 130.60

The defenses to Rape in the First Degree include:

• The victim consented to engage in sexual intercourse (unless the victim’s age was an element of the crime);
• Misidentification;
• Fabrication; and
• Illegally obtained evidence, such as a statement given to detectives.

Rape in the First Degree is a class B felony. In New York, class B felonies are punishable by up to 25 years in jail and a fine of up to $5,000. Additionally, a conviction for Rape in the First Degree will require the defendant to register as a sex offender.

If you’ve been charged with rape or another New York sex crime, it is imperative that you reach out to an experienced criminal defense attorney as soon as possible. At Tilem & Associates, P.C., we have decades of hands-on experience litigating some of the toughest and highest-stakes sex crimes in the state, and we know what it takes to provide you with the defense you need, deserve, and are legally entitled to. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.