How does the close in age exception work in New York?
1 attorney answer
(NY Penal Law §130.05 & §130.20) Sexual misconduct. A person is guilty of sexual misconduct when he or she engages in sexual intercourse, oral sexual conduct, or anal sexual conduct with another person without such person's consent -- i.e. if they are under 17 years old, mentally disabled, mentally incapacitated, or physically helpless. Sexual misconduct is a class A misdemeanor.(NY Penal Law § 130.35) – First degree rape is the most serious rape charge, and is charged only when either:
(1) the defendant uses force, or
(2) the victim cannot consent because he or she is “physically helpless,” or
(3) the victim is under age 11, or
(4) the victim is under age 13 and the defendant is at least 18.
(NY Penal Law § 130.30) – A person can be charged with second degree rape if he or she is at least 18 years old and has sex with a person who is less than 15 years old. The defendant can bring an AFFIRMATIVE DEFENSE if they were less than four years older than the victim at the time of the act .
(NY Penal Law § 130.25) a person can be charged with third degree rape if he or she is at least 21 years old and has sex with someone under age 17. Because it is an element of the offense that the defendant is 21 or older, an 18-, 19-, or 20-year-old who has sex with a 16-year-old would NOT be charged with third degree rape.
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