Date Rape and Rape in the Second Degree

If you have been accused of date rape, or charged with second degree rape under NY Penal Law 130.30, 130.35, or 130.90 call our experienced New York Sex Crimes Lawyers for a free consultation today. Date rape is a term that is loosely used to describe rape that takes place during or after a date or party. Date rape can be associated with the victim being drugged with intoxicants that exacerbate drunkenness, fatigue, sexual excitement, or cause unconsciousness such as Valium, Xanax, Gamma-Hydroxybuterate (GHB) or ecstasy.

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It is a very serious crime to have sex with a person that is under the influence of drugs or alcohol against their will, or unconscious or physically helpless by reason of drugs or alcohol. This can happen at a party, after a dinner or by reason of taking intoxicating medication. The maximum penalty for date rape, often charged in New York as Rape in the first degree is 25 years in prison, and because it is a violent felony the minimum penalty is 2 years, additionally you will be required to register as a sex offender for a minimum of 20 years, or potentially for the rest of your life, and probation for up to 10 years may be part of your sentence.

Date rape can be charged under NY Penal Law 130.30. Rape in the second degree occurs when:

1. When a person is 18 years or older, and has sex with a person 15 years old or younger or
2. When a person has sex with somebody who cannot consent because they are mentally disabled or mentally incapacitated.

Date Rape can also be charged in New York as Rape in the First Degree which can be charged for either engaging in sex by forcible compulsion or for having sex with someone who cannot consent because they are physical helpless.

Relevant to date rape, NY Penal Law 130.00 explains that the legal definition of “Mentally incapacitated” means that a person who cannot control their own behavior due to an intoxicating substance or intoxicating drug given to them without permission. “Physically Helpless” is defined in New York as being unable to communicate lack of consent because of unconsciousness or or any other reason.

Additionally, NY Penal Law 130.90, further penalizes any sex crime that is accomplished by use of a controlled substance. New York also punishes sex with a person who is physically helpless due to being unconscious as rape in the first degree. Rape in the first degree is a class B felony, for which the penalty is a maximum of 25 years in prison, 10 years probation, 20 years to life as a registered sex offender.

It is absolutely inadvisable to have sexual intercourse with anyone that may be intoxicated because it may impact their ability to consent to sexual intercourse. Everyone has a different degree of tolerance to alcohol and drugs, merely because one person is able to have one beer and not become intoxicated to the point of unconsciousness does not mean another is. Furthermore, one should never attempt sex with an intimate partner if their partner if they have fallen asleep after drinking. Sex with an unconscious person would be considered rape.

Having the right attorney may mean the difference between serving a severe prison sentence and having your charges reduced or dismissed. If you have been accused of date rape, or charged with NY Penal Law 130.30, 130.35, or 130.90 call our experienced Sex Crimes Lawyers for a free consultation today.