If one cannot consent to sexual relations before age 17, are children under age 17 guilty of rape or other sex offenses? The answer is yes and no.
New York's law provides a number of exceptions to the age of consent rule. While a child under age 17 cannot legally consent to have sex, the older partner of that child may or may not face criminal charges, depending on the situation and the law's exceptions.
No one may have sexual intercourse with a child under 11 years old. Hence, an 11-year-old who has sex with a 10-year-old would be guilty of rape in the first degree. That is an unlikely, but possible, scenario.
Proof of both a less-than-five-year gap between the ages of the actors, and the victim's age being at least 14, would act as an affirmative defense in an otherwise consensual situation. In other words, if it was a "no, don't touch me" situation, that would be sexual abuse. However, if it was a "please touch me" situation, and one actor in the situation is charged with sexual abuse but he or she proves both the age difference and that the other actor is 14, then there is an affirmative defense.
Understanding New York Statutory Rape Laws: The Age of Consent - Avvo.com
Tricky. But chances are she was ten when she got pregnant, so it wouldn't matter how old the father was.
As with many things, the disclaimer that "it's tricky" understates the problem.
I happen to disagree with the author of that piece, for two separate reasons.
Among other things, if an 11 or 12, or 13 or 14 year old male had sexual relations with a 10 year old female, it is quite probable that even IF he could be said to have committed some "crime," he would likely NOT end up with a criminal conviction on his record. Why not? For another reason: it is likely that any such criminal conviction would get erased by the "
youthful offender" provisions of the State's law.
Then, there's the defense of "i
nfancy." The Penal Law in NY EXCEPTS from criminal responsibility certain "youths," depending on the crimes being considered:
"§ 30.00 Infancy.
1.
Except as provided in subdivision two of this section, a person
less than sixteen years old is not criminally responsible for conduct.
2. A person * * *
fourteen or fifteen years
of age is criminally responsible for acts constituting the crimes
defined in section 135.25 (kidnapping in the first degree); 150.20
(arson in the first degree); subdivisions one and two of section 120.10
(assault in the first degree); 125.20 (manslaughter in the first
degree); subdivisions one and two of section 130.35 (rape in the first
degree);
The Rape Section of the Penal Law in NY, in relevant part, reads:
§ 130.35 Rape in the first degree.
A person is guilty of rape in the first degree when he or she engages
in sexual intercourse with another person:
1. By forcible compulsion; or
2. Who is incapable of consent by reason of being physically helpless;
or
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor is eighteen years
old or more.
Rape in the first degree is a class B felony.
Now that means, as I interpret it, that a person less that 16 is
not responsible under subdivision 3, but if he is 14 or 15, he IS responsible under subdivisions 1 and 2.
The subdivision making it Rape in the First Degree to have sexual intercourse with a child less than 11 years old (subdivision 3) does NOT get a separate exception as do subdivisions 1 and 2. Accordingly, the infancy defense (meaning the actor is 16 years old or younger) DOES apply (imho) to that provision of the rape law.