November 19, 2013

The Law and You: Statutory rape

By PENNY CLUTE, The Law and You

---- — In New York state, it is a criminal sex offense for one person to have sex with another who is younger than 17 years old. 

The statute declares that a person younger than 17 is legally “incapable of consent,” even if that person is actually a willing participant. This is what is commonly called “statutory rape.” 

The law protects young people, sometimes in spite of themselves.

In 2001, New York’s sex offense definitions were revised. 


There are three degrees of rape and of several other sex offenses. In many of these, the ages of the parties have a significant effect. 

It is always first-degree rape when force is used or when anyone older than 16 has sex with a child younger than 11 years old. It is the same degree of seriousness if a person 18 or older has sex with someone younger than 13. 

First-degree rape carries mandatory state prison time.

What may surprise you is that it is also felony rape for an 18-year-old to have sex with someone who is younger than 15 or for a 21-year-old to have sex with a person who has not yet turned 17. 

That four-year age difference is crucial — a lesser age gap will still be a crime if one party is younger than 17, but it will be a misdemeanor instead of a felony. 

If both are 16 years old, neither is legally capable of consent, yet both can be charged with misdemeanor sexual misconduct.


The district attorney’s office and the courts see quite a few of these cases. 

They fall into at least three categories.

In one of those, an older person, often a male but not always, persuades or intimidates a child into sexual activity. An adult may “groom” a child for sexual contact when the child does not really understand what is going on. 

This is most likely when the adult is in a position of trust, such as a relative, teacher, clergy or scout leader. Sometimes, the younger person is not at all willing but is afraid to resist.


Another scenario is two teenagers who are both willing partners, but at least one is younger than the legal age of consent. 

Their parents are often the complainants who bring these cases to police attention, especially when there is a pregnancy.

The young people involved may be boyfriend and girlfriend who both actually consent, but the parents did not know they were having sex. 

Even if the parents knew, they cannot give permission to break the law; the older partner is still committing a crime. There is no legal defense to the charge of statutory rape.

Once a complaint is made to the police, it will not be ignored. The police and/or district attorney will decide whether the evidence supports a criminal charge. 

A perception of unfairness or of parental consent will not excuse violating the law. At best, those factors can be considered as mitigating circumstances after arrest, particularly whether jail or a criminal record is warranted.


In some schools, it appears that the social “standards” are that a girl must have sex before entering middle school. 

This disturbing trend prompts young girls to seek out older boys, which can set the stage for a third category of rape. 

Some 13-year-olds look their age, while others can easily be taken for 17. 

The law goes by actual age, not what the person “looked like” or said. A boy who does not want to break the law and be labeled a “sex offender” for the rest of his life needs to be absolutely sure of the girl’s age.

All of these situations are bad. 

Parents really need to talk to both girls and boys about the responsibility that comes with sex and the consequences that can follow. 

Having sex with someone younger than 17 is a crime, even if you thought the person was older.

Penny Clute has been an attorney since 1973. She was the Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until she retired in January 2012.