Per the statute: “A person is guilty of Rape in the Third Degree when: 1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old; 2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or 3. He or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.”

Subsection 2 is the most common charge, which involves a criminal charge being brought against an older person (21 years old or older) and a complainant younger than 17. Notably, this charge can be brought against the will of the younger party, meaning that it is not necessary for the complainant to “press charges” for the older person to be convicted. Sometimes these charges are proven without the testimony of the younger party by medical evidence or pregnancy, third party witnesses (who catch and observe the people in the act of sexual intercourse), or admissions by the older party.

Sometimes, undercover officers pretend to be minors online and communicate with older men interested in having sexual intercourse with a minor. Those cases sometimes result in those older men being charged with Attempted Rape in the Third Degree, under the theory that the defendants attempted to have sexual intercourse with someone younger than seventeen, but obviously did not because the police officers were not really minors. These charges are nonetheless serious and can result in sex offender registration.

The other two subsections of this charge are vaguer and apply to situations where there is a lack of consent or an incapacity to consent on the part of the alleged victim. Notably, this charge does not apply in situations in which the victims were allegedly “physically helpless,” meaning severely intoxicated, asleep, anesthetized, or in a coma, basically. These other types of “incapacity to consent” include mentally disabled or incapacitated victims, victims in custody of a correctional facility or juvenile placement agency, those undergoing medical or psychological treatment at the moment of the sexual act, and some other hypothetical situations. Thus, it is flat-out illegal for a corrections officer to have sexual intercourse with an inmate, or for a doctor or therapist to have sexual intercourse with a patient during a treatment session, or for anyone to have sexual intercourse with a mentally disabled or incapacitated person. Recently, the outcry over a woman who claims to have been raped by police officers while in their custody caused legislators to propose a bill adding prisoners in police custody to the list of those “incapable of consent” for the purpose of this charge, as well.

Finally, this charge is a serious felony and can be punishable by up to four years in state prison. It also results in registration as a sex offender. If you or a loved one have been arrested or are being investigated for a charge of Rape in the Third Degree, you should strongly consider retaining the services of The Law Office of Matthew Galluzzo. Matthew Galluzzo is a former Manhattan sex crimes prosecutor and has successfully represented dozens of clients against serious charges of rape and sexual assault. He has been quoted as an expert on sex crimes investigations countless times by television and newspaper outlets, including the New York Times, the Wall Street Journal, the New York Daily News, Fox News, and CBS News, among others.

The sentencing range for the original criminal charges under the Federal Sentencing Guidelines was 12-18 months (Base Offense Level of 13 with a two level increase for obstructing justice offset by a possible two level reduction for acceptance of responsibility following a guilty plea). Of course, the client also now faced the possibility of additional criminal charges and penalties for acting as a fugitive and failing to appear in court. The prosecution initially submitted a proposed plea agreement whereby the client would receive a sentence of between 12-18 months in prison.

However, the attorneys at The Law Office of Matthew Galluzzo presented to the federal prosecutor considerable mitigating evidence of our client’s life story and family, as well as circumstances surrounding his original crimes. Ultimately, the prosecutors agreed to allow the client to plead guilty to the second count of the original indictment and avoid additional charges for acting as a fugitive. The second count of the indictment carried a 0-6 month Guidelines sentence, representing a considerable savings on the original 12-18. Then, we were able to persuade the judge to schedule an expedited sentencing hearing and ultimately to sentence our client to time served. Thus, instead of receiving a sentence of between 12-18, as it originally appeared our client would, our client received a sentence of less than four months. Obviously, the client is quite happy with the result.

If you or a loved one have been arrested for a violation of federal criminal law in Brooklyn or Queens (i.e. the Eastern District of New York), you should strongly consider contacting the experienced federal criminal defense attorneys at the Law Office of Matthew Galluzzo. Their team of former prosecutors has considerable experience representing individuals charged with a wide variety of crimes in that courthouse, and may be able to help you as well.