Criminal Justice Options

The following information has been compiled by the New York City Alliance Against Sexual Assault to assist survivors in understanding the legal issues surrounding sexual assault, and their own rights as survivors. This information should never replace information given to you by your lawyer or the District Attorney’s Office.

The decision to report a crime is entirely up to the survivor. No one should be pressured into talking to law enforcement. An advocate can talk through options and provide information about what to expect during the criminal legal process.  

You may need some time to decide what to do and that’s okay. Within 96 hours, you can access a Forensic Rape Exam (FRE) – which may include medical treatment, documentation of injuries, and/or the collection of DNA evidence from your body, clothes and other personal items.  By New York State law, hospitals are required to secure the FRE for a minimum of 30 days if you decide to report at a later time.
Visit the Rape, Abuse & Incest National Network (RAINN) to learn more info on forensic exams.

Does it matter if the victim knew the perpetrator?

Our laws do not differentiate between a known and unknown attacker. As a practical matter, the better the victim knew the perpetrator, especially when they had a previous consensual sexual relationship, the harder it is to prove lack of consent. It is even more difficult if the offender did not use force, threats or a weapon. Fortunately, there is a clear trend for the criminal justice system to prosecute more of these acquaintance sexual assault cases. Recently, the legal definition of lack of consent was amended to include any situation in which the victim “clearly expressed” that he or she was not consenting in the sex act and a “reasonable person” in the perpetrator’s situation “would have understood” the victim’s words and acts as “an expression of lack of consent.”

If the perpetrator is found guilty, what will the sentence be?

Sentencing is very complicated and depends on many factors. Sexual offenses are categorized in a range of classes of felonies and misdemeanors; sentencing for each offense varies. The District Attorney must also make decisions as to the prosecutorial strength of any given case, whether to include a lesser charge, and plea-bargaining. Some other factors include:

• the crime involved
• the amount of force used
• the injuries that resulted
• the age of the perpetrator
• the age of the victim
• whether this is the perpetrator’s first, second, or a subsequent offense.

First degree crimes are considered the most serious ones and carry the longest penalties. For violent felonies, New York State imposes mandatory minimum sentences. For example, a first time offender would receive 5 to 25 years if convicted of a Class B Felony, 3.5 to 15 years if convicted of a Class C Felony, 2 to 7 for a Class D Felony conviction and 1.5 to 4 for a Class E Felony conviction.

Are any other crimes ever charged in relation to a sexual assault?

Sometimes other offenses occur along with a sexual offense. Some of the more common ones are:

• Kidnapping (or threat of kidnapping) the victim or a third party
• Assault
• Robbery
• Burglary
• Criminal possession of a weapon
• Unlawful imprisonment
• Harassment
• Stalking
• Coercion
• Offenses against public sensibilities
• Endangering the welfare of a child
• Use of a child in pornographic material
• Incest
• Facilitating a sex offense with a controlled substance (i.e. date rape drugs)

The perpetrator can also be charged with any of these crimes that occurred along with the sexual offense. A federal court may also be able to charge the perpetrator with certain federal crimes if the offense involved the victim or perpetrator crossing state lines, or took place on federal property, or involved certain people in government.

Statutory rape occurs when sexual contact between two people involves one that is unable to consent under New York State Law. There are three legal categories for felony statutory rape:

• Rape in the first degree: A person has sex with a victim who is less than 11, or a person over 18 has sex with someone less than 13.
• Rape in the second degree: A person 18 or over has sex with someone less than 15.
• Rape in the third degree: A person at least 21 years old has sex with someone less than 17.

If the victim is under 17 and the perpetrator is an adult, this constitutes a misdemeanor statutory rape.

However, it is an “affirmative defense” in all cases if the accused is less than 4 calendar years older than the victim. This means that if the defense can prove that the defendant is less than four years older than the victim, the jury must find the defendant not guilty, regardless of whether the prosecution proves that the defendant did have sex with the victim.

When can a sexual assault NOT be prosecuted?

Not every sexual assault can be prosecuted as a crime under the laws of New York or in the judgment of the criminal justice system.

Some reasons that a crime cannot be prosecuted are:

• the crime was not completed (it may still be possible to charge the perpetrator with an attempted rape or attempted sodomy).
• the identity of the perpetrator is unknown.
• the perpetrator, while known, cannot be found or arrested.
• the perpetrator has since died or become incapacitated.
• the police or prosecutor determine upon analyzing all the facts and circumstances, that they can not prove an element of the crime beyond a reasonable doubt (e.g., that they can not prove the sexual act, or the “lack of consent” or that the individual accused was, in fact, the perpetrator).
• the victim is too young or too incapacitated to be able to explain what happened

Even if a sexual assault offense cannot be prosecuted, this should not prevent the survivor from seeking help. Survivors experience emotional trauma from a sexual assault, regardless of the technicalities of the law.

If I was raped, can I sue for money damages after a rape?

Yes. You can sue your landlord if his/her negligent maintenance of the building was a substantial cause of the assault. Under certain circumstances, a business, school, etc. can be sued if they negligently hired and/or maintained a dangerous employee. These lawsuits must be brought within a specific time period — sometimes as little as thirty days. You should be able to consult with an attorney for no fee and not pay unless the lawsuit is successful.

For more information…

If you want further information on how to report a sexual assault, call the New York Police Department’s Special Victim’s Report Line, a rape crisis program, or your local District Attorney’s Office Sex Crimes Unit: