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Queens Rape in the Third Degree

Rape in the third degree is one of 3 rape charges in New York. It is the least severe charge. You would have committed rape in the third degree if you have sexual intercourse with someone without that person's consent or if you have sexual intercourse with someone who was incapable of consenting. A 3rd basis for a rape in the third degree charge is if you are at least 21 years old and you have sexual intercourse with someone who is less than 17 years old. Rape in the third degree is a Class E felony. This means that even though rape in the third degree is not as serious a crime as rape in the first or second degree it is still a felony. If you are convicted you could be sentenced to up 4 years in prison. N.Y. Pen. Law § 130.25. Regardless of the degree rape is a serious sex crime. A conviction will have a damaging affect on the rest of your life. In order to make sure you have the best representation to help you fight such a charge it is critical that you contact an experienced Queens Rape in the Third Degree Lawyer who will review the facts of your case and aggressively defend you against the charges.

Lack of Consent

You cannot be convicted or even prosecuted for rape in the third degree or any other sex crime if the sex act was consensual. In other words, if the other person agreed to have sex with you then he or she consented. However, it is important to understand what the term "lack of consent" means under the rape statute. If the other person says no or physically resists having sex with you, then there was no consent. However, there are other indicators that there was not consent.

If the other person is mentally disabled then he or she would not be able to consent to sex. If you have sex with that person anyway, then you would have committed rape in the third degree. A person suffers from a mental disability if he or she is unable to assess the nature of the sexual act. Being mentally disabled is different from being mentally incapacitated. A person is mentally incapacitated if he or she is intoxicated by drugs or alcohol. A person is physically helpless if that person is unconscious or for any other reason is unable to express unwillingness to participate in the sexual act. N.Y. Pen. Law § 130.00. In People v. Worden, 22 N.Y.3d 982 (2013), the defendant initiated sexual intercourse with the victim after psychotropic medication put her into deep sleep. In order for a person to be charged with rape or any other sex crime based on the allegation that the victim was mentally disabled or mentally incapacitated, there must be corroboration by a third party or by other evidence. N.Y. Pen. Law § 130.16. In other words, a rape in the third degree charge will not stick simply based on the word of someone who is mentally disabled or mentally incapacitated.


While being charged with rape in the third degree or any sex crime is frightening, being arrested does not necessarily mean that you will be convicted. There are various defenses to a charge of rape in the third degree that you may be able to use to help you get the charges dismissed, reduced, or that may help you be acquitted of the charges. For example, since lack of consent is a necessary element for a charge of rape, if you can prove that there was indeed consent, then the prosecutor will have a difficult time make a case for rape in the third degree. Another defense could be based on the statute of limitations. The statue of limitations refers to the amount of time that a prosecutor has to bring criminal charges against a person. The statute of limitations for rape in the third degree is five years. N.Y. Crim. Pro. Law § 30.10. If you are not prosecuted within 5 years the law states that you cannot be prosecuted. The exception to this rules is if the victim was under the age 18. In this case the statute of limitations period does not begin until the victim turns 18 or reports the incident to law enforcement.


If you are convicted of rape in the third degree, the maximum prison sentence the judge can give you is 4 years. If you are a first time offender the judge may give you a significantly lighter sentence depending on the facts of the case and your personal background. If your sentence includes probation, the mandatory probation term is 10 years since rape in the third degree is both a felony and a sex crime. In People v. Morey, 2013 N.Y. Slip Op. 07086, (2013), the defendant plead guilty to rape in the third degree and was sentenced to 6 months in jail, plus 10 years probation.


While serving your probation sentence you will have to adhere “Conditions of Probation” that may include:

  • You will be subject to a warrantless search
  • You will be subject to drug testing
  • You must be employed
  • You must support your family
  • You must stay away from disreputable people
  • You must stay away from disreputable places
  • You must not drink alcohol excessively
  • You must not use controlled substances
  • You must seek any ordered medical or mental health treatment

Most importantly, if you are on probation, you cannot commit another crime. In other words, you must stay out of trouble. If you fail to adhere to the terms of your probation your probation officer will violate you. A probation violation is serious. You will be required to appear before a judge who will decide if you did indeed violation your probation. If you did the judge may revoke your probation and resentence you to prison.

Sex Offender Status

If you are convicted of rape in the third degree or almost any sex crime, you will be required to register as a sex offender. This means that law enforcement will maintain certain information about you in a sex offender database. This information includes your name, aliases, address, work address, school, photograph, email address, your crimes, and the attributes of your victims. You will be required to verify this information on a regular basis and provide a new photograph on a regular basis. You will have to follow these rules for at least 20 years. If the court feels that you present a high risk to the community, then you will have to follow these rules for the rest of your life.

Even though the possible sentence for a rape in the third degree conviction is lighter than for other rape charges, rape in the third degree is still a very serious charge. A conviction will not only impact your life, it will also impact the lives of your family members. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients who have been charged with rape. We understand the evidentiary and procedural issues involved as well as how to apply defenses. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case.

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