The National Trial Lawyers
Avvo Rating 10.0
Avvo Clients' Choice
Avvo Rating Superb
Expertise Badge
Avvo Clients' Choice

Rape in the Third Degree charges

The Law Office of Matthew Galluzzo, PLLC Team

Under New York state law, there are three degrees of rape, with Rape in the First Degree (Penal Law Section 130.35) being the most serious (a Class B violent felony). Rape in the Third Degree (Penal Law 130.25), however, may be the most common criminal charge, and it can be brought in three different ways.

Per the statute: “A person is guilty of Rape in the Third Degree when: 1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old; 2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or 3. He or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.”

Subsection 2 is the most common charge, which involves a criminal charge being brought against an older person (21 years old or older) and a complainant younger than 17. Notably, this charge can be brought against the will of the younger party, meaning that it is not necessary for the complainant to “press charges” for the older person to be convicted. Sometimes these charges are proven without the testimony of the younger party by medical evidence or pregnancy, third party witnesses (who catch and observe the people in the act of sexual intercourse), or admissions by the older party.

Sometimes, undercover officers pretend to be minors online and communicate with older men interested in having sexual intercourse with a minor. Those cases sometimes result in those older men being charged with Attempted Rape in the Third Degree, under the theory that the defendants attempted to have sexual intercourse with someone younger than seventeen, but obviously did not because the police officers were not really minors. These charges are nonetheless serious and can result in sex offender registration.

The other two subsections of this charge are vaguer and apply to situations where there is a lack of consent or an incapacity to consent on the part of the alleged victim. Notably, this charge does not apply in situations in which the victims were allegedly “physically helpless,” meaning severely intoxicated, asleep, anesthetized, or in a coma, basically. These other types of “incapacity to consent” include mentally disabled or incapacitated victims, victims in custody of a correctional facility or juvenile placement agency, those undergoing medical or psychological treatment at the moment of the sexual act, and some other hypothetical situations. Thus, it is flat-out illegal for a corrections officer to have sexual intercourse with an inmate, or for a doctor or therapist to have sexual intercourse with a patient during a treatment session, or for anyone to have sexual intercourse with a mentally disabled or incapacitated person. Recently, the outcry over a woman who claims to have been raped by police officers while in their custody caused legislators to propose a bill adding prisoners in police custody to the list of those “incapable of consent” for the purpose of this charge, as well.

Finally, this charge is a serious felony and can be punishable by up to four years in state prison. It also results in registration as a sex offender. If you or a loved one have been arrested or are being investigated for a charge of Rape in the Third Degree, you should strongly consider retaining the services of The Law Office of Matthew Galluzzo. Matthew Galluzzo is a former Manhattan sex crimes prosecutor and has successfully represented dozens of clients against serious charges of rape and sexual assault. He has been quoted as an expert on sex crimes investigations countless times by television and newspaper outlets, including the New York Times, the Wall Street Journal, the New York Daily News, Fox News, and CBS News, among others.

Client Reviews

I found myself in such a dark place thinking only God could understand and help me through this horrible situation. But Matthew Galluzzo did. And he did so in a very kind, compassionate and respectful manner. Enough said.

Client

Matthew Galluzzo saved the day when the unthinkable happened. Every phone call was returned within minutes. All email correspondences were replied to expeditiously. Matt handled our case as if it was a member of his own family in the courtroom. Despite all the obstacles along the way, Matt's legal...

Kate

In less than an hour of assessing my case, Mr. Galluzzo had a clear direction and evoked a confident demeanor that was infectious. During the course of several court appearances he was always prepared, and took more than a personal interest when errors in court procedure occurred. Mr. Galluzzo...

Client

We hired Matt when my son was arrested on several very serious felony charges. Matt is not only very knowledgeable about the law, he genuinely cares about his clients. He was patient and professional, inside the courtroom and out, in what turned out to be a very long process. He worked closely with...

Client

Get in Touch

  1. 1 Over 20 Years of Experience
  2. 2 Available 24/7
  3. 3 We Fight for You!
Fill out the contact form or call us at (212) 344-5180 to schedule your consultation.

Leave Us a Message