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Nassau County Rape in the First Degree

N.Y. Pen. Law § 130.35

Rape is one of the most common sex offenses. While the term is sometimes used to describe a variety of forcible sex acts, New York criminal law includes three degrees of rape, each of which has a very specific definition. There are three different scenarios that might result in you facing a charge of rape in the first degree.

  • You engage in sexual intercourse with another person by forcible compulsion
  • You engage in sexual intercourse with another person who is physically helpless
  • You engage in sexual intercourse with another person who is less than 11 years old
  • You are at least 18 years old and you have sexual intercourse with a child who is less than 13 years old

Of the three rape charges, rape in the first degree is the most serious. It is a Class B felony. The penalty for being convicted of first degree rape is a prison sentence of up to 25 years. N.Y. Pen. Law § 130.35. Because of the consequences of being convicted of rape in the first degree or any rape charge, as soon as you have been arrested you should contact an experienced Nassau County Rape in the First Degree Lawyer who will explain to you your legal options and who will aggressively defend you against the charges.

What does the term "lack of consent" mean?

Consent is the central issue in determining whether or not you will face a charge of rape in the first degree. In order for you to be convicted of rape in the first degree or any other type of rape offense, there must be a determination that your accuser did not give consent to the sex act. N.Y. Pen. Law § 130.05. Under the New York statute lack of consent must be evidenced by certain specified conditions that if present differentiate rape in the first degree from other types of rape charges.

  • Forcible Compulsion. Forcible compulsion exists if you used physical force to have sex with another person. For example, if you assault the other person, or physically restrain that person, then you would have used physical force. Where physical force was used, there would have been no consent. In addition to physical force, forcible compulsion also refers to using a threat of death or physical injury either to the victim or to someone else. For example, if you point a gun to someone's head or hold a knife to a person's neck, the other person would rightfully feel threatened and compelled to participate in sex with you in order to avoid being killed or seriously injured. For example, in People v. Schlau, 2014 N.Y. Slip Op. 03325 (2015), the defendant Schlau was charged with rape in the first degree based on evidence that showed that he used a knife to force the victim to have sex with him. In addition, if you threaten to kidnap the victim or someone else such as a friend or family member of the victim that would also amount to forcible compulsion. N.Y. Pen. Law § 130.00(8)
  • Physically Helpless. A person is physically helpless if he or she is sleep, unconscious or for any other reason is unable to express refusal to the sexual act. N.Y. Pen. Law § 130.00 (7). It is irrelevant to the charge of rape in the first degree that you did not cause the person to become physically helpless. For example, suppose you are a party and another person at the party passes out after drinking alcohol. Or, suppose your roommate falls into a deep sleep after taking sleeping pills prescribed by a physician. If in either of these cases you then have sex with that person, you would have done so at a time when the other person is physically helpless. In such a state, that person would not have the ability to consent to sex. That is precisely what happened in the case of People v. Williams, 837 N.Y.S.2d 384 (2007). Defendant Bryan Williams was convicted of rape in the first degree based on having sexual intercourse with a woman who had passed out from drinking alcohol and smoking marijuana.
  • Child Victim. "Statutory rape" is the term used for cases where an adult has sex with a child. In statutory rape cases, there is typically not a situation where the person accused used physical force to have sex with the child. In fact, in some cases the child reported verbally consented or even initiated the sex. However, the under the law children do not have the mental capacity to consent to sex. Thus, if you have sex with a child who is less than 11 years or, or if you are at least 18 years old and you have sex with a child who is less than 13 years old, you would have committed rape in the first degree.
What happens during arrest and arraignment?

If the police believe that you may have committed the crime of rape in the first degree, you will be arrested and taken into custody at the local police precinct. After initial processing at the local precinct, you will then be taken to a place called "Central Booking." Central Booking is located in the criminal court building in the county where you were arrested. For example, if you arrested for rape in the first degree in Nassau County, you will eventually be taken to Central Booking at 99 Main Street in Hempstead. You will remain in Central Booking until you are called for your arraignment hearing.

The arraignment is the first time that you will appear before the judge. At that time the charges against you will be read by the prosecutor. It is only then that you will learn all of the charges. While you might face a single charge of rape in the first degree, it is important to understand that based on the facts of your case, it is possible that the prosecutor may decide that additional charges are appropriate such as criminal sexual act in the first degree, attempted rape in the first degree, predatory sexual assault, predatory sexual assault against a child, or sexual abuse in the first degree. You may also be charged with other crimes that are not sex crimes. You will enter a plea of guilty or not guilty.

The next step in the arraignment hearing is the issue of bail. The judge will decide if bail is required. The judge may release you on your own recognizance, set bail or require that you be held without bail. The judge's decision will be based on his or her assessment of whether or not you are a flight risk based on both the allegations against you and your background. You will then learn when you must next appear in court. If you are released on your own recognizance or after posting bail, it is important to know that you must attend every court hearing, otherwise the judge will issue a bench warrant for your arrest.

What are some defenses to a charge of rape in the first degree?

Depending on the facts of your case there are several possible defenses to a charge of rape in the first degree. If the defense can be proven the result may be that the prosecutor will drop the charge, reduce the charge, or you may be acquitted after trial.

  • Presence of Consent. Because the lack of consent is a key element to a rape charge, an important defense is to show evidence that there was consent to the sexual intercourse. This means that you will have to show that there was no forcible compulsion or that the victim was not physically helpless.
  • Statute of Limitations. The statute of limitations may provide a defense if the incident that lead to the rape in the first degree charge occurred years in the past. The statute of limitations requires that the prosecutor bring a case within a certain period of time. If the prosecutor fails to do so, then he or she is forever barred from bringing the case. In some cases the victim waits a long time before contacting law enforcement about a sexual assault. In other cases, even though the accuser has come forward the prosecutor is unable to bring charges within the limitations period.

For a rape charge, because it is a felony, the limitations period is 5 years from the time of the incident. The exception to this rule is in cases where the accuser is under the age of 18. If so the statute of limitations does not being to run until the accuser's 18th birthday or when he or she reports the incident to law enforcement.

What is the sentence for rape in the first degree conviction?

The maximum sentence for being convicted of rape in the first degree is up to 25 years in prison as it is a Class B felony. Rape in the first degree is further classified as a violent felony offense. This means that the judge must follow minimum sentencing requirements. If you are convicted you will face a mandatory minimum sentence of 5 years in prison and a maximum sentence of 25 years. You must serve at least 6/7 of your prison sentence before you will be eligible to be released on parole. In the case of People v. Williams the defendant was sentenced to 15 years in prison after being convicted for rape in the first degree. While he was originally sentenced to 22 years, on appeal the judge lowered his sentence to 15 years based on the defendant's lack of significant criminal history.

If this conviction is your second violent felony conviction, the minimum prison sentence that you will be required to serve is 10 years. N.Y. Pen. Law § 70.04. If you are convicted of other crimes in addition to rape in the first degree, even if they are misdemeanors, your sentence will be more severe than if you were convicted of just one crime.

If you are able to negotiate a plea deal with the prosecutor such that the charge is reduced to a less serious crime that is not classified as a violent felony, then it is possible that you could be sentenced to a short prison term or even to probation. While probation is a much preferable sentence than incarceration, it is not without restrictions. With probation comes a set of rules that you are required to follow. These rules may include: you must not commit a crime, you must maintain a job, you must not drink alcohol excessively, you must refrain from associating with disreputable people, you must use controlled substances, you must refrain from possessing firearms, you cannot leave New York without permission, you must stick to a curfew, and you must regularly check in with your probation officer. If you break the conditions of your probation a judge may send you to jail, or the judge may modify the terms of your probation.

Sex offender registration. If you are convicted of rape in the first degree you will be required to register as a sex offender under the New York Sex Offender Registration Act. N.Y. Cor. Law § 168. Once you are convicted of registrable offense such as rape in the first degree, you will have a hearing during which a determination will made as to the level of risk you pose to the community. Level 1 offenders present a low risk of re-offending; level 2 offenders present a medium risk of re-offending; and level 3 offenders present a high risk of re-offending. Level 1 offenders will remain on the registry for at least 20 years. Level 2 and 3 offenders will remain on the registry for life. In addition, the names and other personal information of Level 2 and 3 offenders will made available to the public. Regardless of level, all registered sex offenders must verify their addresses and other personal information with law enforcement and must inform law enforcement of a new addresses within 10 days of moving. Level 3 offenders must verify their addresses every 90 days. If you move out of New York State, you will be required to follow the sex offender registration requirements of that jurisdiction.

Being accused of rape and facing the New York criminal system is frightening. Your freedom is at stake. Defending a rape in the first degree charge can be quite complicated. There are often complex issues related to consent, credibility and evidence. If your loved one has been arrested and faces a rape charge, it is critical that you contact an experienced Nassau County Rape in the First Degree Lawyer as early in the process as possible. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of rape in the first degree as well as other sex crimes such as sexual misconduct, criminal sexual act, forcible touching, sexual abuse, and facilitating a sexual offense with a controlled substance. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of sex crimes in the following locations:

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