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Defendant Charged with Third Degree Rape


Incidents of rape and sexual assault cases involve many different laws. Each case is reviewed in relationship to how it addresses each element of each law. A New York Criminal Lawyer said the most appropriate law or multiple laws are then charged by the prosecution. In some case, a charge is reduced to a lesser included offense because the jury or prosecutor decides that the lesser included offense if more appropriate to the actions of the charged offender. One case of this type occurred in 2008.

On May 21, 2008, a man was charged with rape. He was convicted after a jury trial on May 28, 2008 of third-degree rape, which is detailed under New York Penal Law § 130.25(3). This charge was determined by how the victim expressed her lack of consent to the sexual assault. This victim apparently never stated the actual term “no,” but rather testified that she had been crying the entire time and stating that she just wanted to go home. The court concluded that any reasonable person observing this situation would conclude that the victim was not consenting to the act. The defense maintained that he did not consider her actions to be a refusal because she never actually stated that she did not want to have sex with him. The court evaluated the totality of the evidence which included the fact that this was his second or third offense of sexual assault.

They also reviewed the fact that the offender forced the woman into his apartment against her will and used threats of physical injury to prevent her from leaving. The court determined that when viewed in their entirety, the circumstances surrounding this assault clearly contained all of the necessary elements to be considered a rape. Because of this, the offender’s request to have his conviction overturned was denied.

The court stated that the application of dismissal was not granted because contrary to the offender’s contention that he could not be convicted of third degree rape as a lesser included offense of first-degree rape, that is not what occurred. The prosecution had charged the subject with first-degree rape and third-degree rape as separate offenses. The jury chose to convict him on the third-degree rape and not on the first-degree rape. Therefore, a Long Island Criminal Lawyer said there was no standing for the offender to seek a summary judgment overturning his conviction. If the prosecution had failed to charge third degree rape as a separate offense, then the offender might have had some type of standing, however, because that was not the case in this situation, he did not have any standing for a summary judgment in his behalf.

The court contends that third degree rape is applicable when a person demands sexual intercourse using threats and the frightened victim consents immediately without saying or doing anything. In this case, the victim repeated stated that she did not want to be there and was crying the entire time. Even though she never actually stated that she did not want to have sexual relations with this man, a normal human being presented with the same or similar circumstances would certainly contend that she did not want to have sexual relations with that person. A victim of rape under the laws of New York, is not required to specifically state the words that she does not want to have sex with the offender. Often, the only refusal of the offense is demonstrated in the actions of the victim and her demeanor. A New York Sex Crimes Lawyer said he does not have to fight her offender in order for the assault to be consider rape, she merely has to express a reticence to the overall circumstances. Actions that involve crying, trembling, obvious fear, even bargaining may be considered by the court to demonstrate that the victim was in fear of her life and was attempting to avoid injury by submitting to the assault.

Stephen Bilkis & Associates has sexual assault Lawyers with convenient offices throughout Kings County and the Metropolitan area. Their criminal Attorneys are available to help you if you need guidance through difficult situations.

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