Every week, New York attorneys receive calls from angry parents, frustrated young women, and frightened young men, asking if the young men or women can be arrested for having sex. While the age of consent in New York is 17, several exceptions to the state's statutory rape law define instances where sexual relations with a child under 17 are not considered statutory rape. This guide defines the concept of the age of consent and discusses the rights of a person of age and the elements of (and exceptions to) sex crimes based on the age of a victim and an accused.

The age of consent in New York

The age of consent is the age at which one can legally consent to have sexual relations. The age of consent in New York is 17 years old. (See the NYS Penal Law Art. 130 (http://www.nycagainstrape.org/media/fhp/nyscasa_summary_penalcode130.doc).) On their seventeenth birthdays, young men and women may decide for themselves if they wish to consent to have sexual intercourse or participate in other sexual activity. The day before their birthday, they would be incapable of consenting due to their tender age.

What age of consent does not mean

The ability to consent to have sex does not give 17-year-olds the right to move away from, or cease to be under the supervision of, their parents or legal guardians. Parents of minors who leave home without permission can go to the Family Court and seek an order forcing the children to return home, unless the parents can be proven to be unfit. Parents can move to have their 17-year-olds returned home specifically because the children are consenting to sexual intercourse or sexual behavior. Why? Although the children can now consent to sexual relations, the results of those sexual relations will be visited upon the 17-year-olds' parents. They will be financially responsible for the prenatal care and the health and well-being of any offspring born as a result of the 17-year-olds' decisions to engage in consensual sexual relations, at least until the 17-year-olds become adults at 18, and possibly longer.

Exceptions to the age of consent rule

If one cannot consent to sexual relations before age 17, are children under age 17 guilty of rape or other sex offenses? The answer is yes and no.

New York's law provides a number of exceptions to the age of consent rule. While a child under age 17 cannot legally consent to have sex, the older partner of that child may or may not face criminal charges, depending on the situation and the law's exceptions.

No one may have sexual intercourse with a child under 11 years old. Hence, an 11-year-old who has sex with a 10-year-old would be guilty of rape in the first degree. That is an unlikely, but possible, scenario.

A person age 18 or older cannot have sex with a person under 13 years old under any circumstance. However, if the child is at least 13 and younger than 15, and if the adult is less than four years older than the child at the time of the sexual conduct, then that would release the adult defendant of criminal responsibility. Because this is an affirmative defense, the defendant, who usually carries no burden of proof at trial, has the burden of proving the age difference beyond a preponderance of the evidence (which is far less than the prosecution's burden of proving its case beyond a reasonable doubt.) For example, if a 14-and-a-half-year-old girl agrees to have sex with a boy on his eighteenth birthday, the 18-year-old would have an affirmative defense of being less than four years older than the victim.

Further, a 17-year-old would not be guilty of rape of a 12-year-old if the younger child agreed to the act. The 17-year-old might be guilty of a misdemeanor sexual offense, however.

But if a 17-year-old turns 18 before his or her partner turns 14, then as of the older child's eighteenth birthday, the sexual relations would be considered rape. This can be very disconcerting to the children and parents. It presents a scenario where sexual behavior that was legal on one day is be completely illegal the next.

Another exception falls where the defendant is accused of sexual abuse (touching another person sexually without consent). Proof of both a less-than-five-year gap between the ages of the actors, and the victim's age being at least 14, would act as an affirmative defense in an otherwise consensual situation. In other words, if it was a "no, don't touch me" situation, that would be sexual abuse. However, if it was a "please touch me" situation, and one actor in the situation is charged with sexual abuse but he or she proves both the age difference and that the other actor is 14, then there is an affirmative defense.

In closing

The best thing parents can do to protect their children is to speak to them; stay abreast of what they are doing, particularly in cyberspace; and of course be aware, and make their children aware, of the law. If necessary, sit both children down with an attorney who can explain the legal "facts of life" to them.

Additional Resources:

Sexlaws.org: Age of Consent Questions for New York (http://www.sexlaws.org/questions/New_York)

Avert (an international AIDS and HIV nonprofit): Teens, Sex and the Law (http://www.avert.org/teensex.htm)