Guest Column

November 19, 2013

The Law and You: Statutory rape

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. 

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