Although sex crimes prosecutors and New York criminal defense attorneys defending individuals investigated for and accused of Article 130 crimes including Rape, Sexual Abuse, Sexual Misconduct, and Forcible Touching respectively are aware of the September 1, 2024, changes to the New York Penal Law, it is equally likely that those not versed in these statutes are ill-informed at best. With this in mind, this blog entry will highlight the significant changes to the various crimes and legal definitions found in this section of the criminal code so that you can better understand the future of sex crimes prosecutions in New York. To that end, following terms have been repealed, renamed, substituted, or even incorporated into new statutes: sexual intercourse, vaginal sexual contact, anal and oral conduct and contact, Criminal Sexual Act, and Rape. While each of these definitions are critical to understanding the law and its application going forward, what most will likely see as the biggest take away is the new and far more expansive definition of what constitutes the non-violent and violent felonies of Third, Second and First Degree Rape.
Sexual Intercourse: Replaced by Vaginal Sexual Contact
A fairly simple place to start, this term was repealed from the criminal code and substituted with “vaginal sexual contact”.
Vaginal Sexual Contact: The Touching of Intimate/Sexual Parts
Equally straight forward and simple, this type of conduct involves the touching, even slightly, of a penis with either the vulva or the vagina.
Anal and Oral Conduct: Conduct Replaced by Contact
Similar to the definition above, this touching is between either the penis and the anus or the mouth and the penis, anus, vulva or vagina respectively.
Broadening Rape: Criminal Sexual Act Repealed & Incorporated Into Rape
Prior to September 1, 2024, the New York Penal Law considered Rape a distinct crime from committing a Criminal Sexual Act. While the former was viewed as the vaginal penetration between the penis and vagina, regardless of the degree or depth of that penetration, the latter involved contact between the penis and the anus or mouth. As such, if a man forced oral sex upon a woman or did not have her consent to place his mouth on her anus or vagina, the offense would not be considered Rape. With Criminal Sexual Act no longer a crime and the conduct placed under the umbrella of the Rape statute, non-consensual anal sex, oral sex, or unwanted touching in that capacity is now a violation of the redrafted Rape statutes found in Penal Law 130.25, 130.30, and 130.35.
Third, Second & First Degree Rape: The Same But Different
While the varying degrees of Rape kept the same strength in terms of their potential punishment and the statutory language didn’t alter what was formerly a Rape crime to something that now is different, what it did was greatly expand and break out additional misconduct and actions that violate the law. Though a separate blog entry will address these new and expanded subsections, setting aside how a person committed the offense in terms of force, compulsion, violence, or the capacity of the other person to consent due to age or some other infirmity, the law also sets the sexual or intimate area as a relevant factor too.
Third, Second & First Degree Rape: A Brief Look
As a preliminary matter, statutorily the laws governing Rape in New York are Broken Down as follows:
Third Degree Rape: Now with nine distinct subsections, Penal Law 130.25(1) through (9) remains a class “E” non-violent felony with a potential sentence of up to one and one third to four years jail.
Second Degree Rape: Now with six separate subsections, Penal Law 130.30(1) through (6) is still a class “D” violent felony with a presumed mandatory minimum of two years and maximum of seven years incarceration.
First Degree Rape: Now with twelve separate subsections, Penal Law 130.35(1) through (3), further broken down from (a) to (d), is still a class “B” violent felony requiring a mandatory sentence of five years and as long as twenty-five years in prison.
A conviction for these crimes will expose you to New York’s Sex Offender Registration Act (SORA).
Again, the biggest change to these crimes is absorbing the anal and oral contact language and breaking out the separate offenses based on the intimate area or type of touching. What still remains are the elements specific to these degrees involving forcible compulsion, physical helplessness, a child victim’s age, mental disability, and some other factors.
To learn more about New York’s Rape laws and those involving other sex crimes such as Sexual Abuse, Sexual Misconduct, and Forcible Touching, follow the highlighted links above or go to Saland Law’s New York Sex Crimes information page.
Founded by former Manhattan prosecutor Jeremy Saland, Saland Law represents those investigated and arrested for sex offenses in the New York City area. Saland Law has secured acquittals at trial, non-prosecutions, and non-criminal convictions for those accused of violating the Penal Law including Article 130 sex crimes.