What is NYS Legal Age of Consent?
The age of consent in New York State is 17 years old. This means that, under most circumstances, adults who engage in sexual activity with someone who is 17 or older are not breaking the law. In New York State, the law prohibits sexual activity with anyone under the age of 17. Anyone engaging in a sexual relationship with someone younger than 17—for example, someone who is 15—is guilty of statutory rape and can be charged with a felony.
The age of consent in New York is higher than in some other states. In New Jersey , for example, the age of consent is 16, while in Florida, the age of consent is 18. When contemplating the age of consent and sexual activity, both parties must be able to agree to the act; as with a written contract, both must be legally able and totally of their right mind in order to give permission. If one party does not do so, they may be able to file charges against the other party for statutory rape.
Why Are There Laws Regarding Age of Consent?
The legal age of consent serves an essential purpose in our society. It acts as a safeguard against the emotional, physical, and psychological manipulation of the most vulnerable members of our community: children and pre-adolescents. Age of consent laws are designed to prevent individuals with more life experience and/or greater physical capacity from preying on the immaturity or inexperience of minors. This prioritization of youth safety is why consensual activities between minors who are below the age of consent are treated as a crime (‘statutory rape’, for example), even if the minor’s cohort is of the same age and has never been charged with a crime before. In other words, the law makes no distinction between consensual sexual activity between peers and consensual sexual activity between one minor (below the age of consent) and an adult.
While some have argued that there are competing social interests that are not taken into account when legislating the age of consent, the fact is that there are few, if any, social interests greater than the safety and protection of minors. Additionally, the age of consent statute remains subject to various constitutionally-acceptable restrictions. For example, the United States Supreme Court has long-recognized the statute as a limitation that is acceptable and constitutionally-permissible.
Exceptions and Special Cases
For the most part, if one person is aged less than 17 years old in New York State, they are not able to legally consent to sexual acts. However, there are some exceptions and special cases to be aware of.
One of the most important of these exceptions is the close-in-age exemptions. When both individuals are at least 13 years of age but are both younger than 17 years old, and the individuals involved are not greater than four years apart in age, the younger person can legally consent to engage in sexual acts. However, the age difference cannot be greater than four years—if you are 21 and you are dating a 16-year-old, that is still illegal because you are more than four years older than her.
In addition, if victims suffer from a developmental disability such as an intellectual disability or a severe mental disorder, they are considered legally incapable of consent regardless of their age.
Consequences of Breaking Age of Consent Laws
Violating the legal "Age of Consent" in New York State is a serious criminal charge. It is comprised of three specific offenses:
- Sexual Misconduct — S 130.20 New York Penal Law
- Sexual Abuse in the Third Degree – S 130.55 New York Penal Law
- Criminal sexual act in the fourth degree – S 130.10 New York Penal Law
For purposes of this blog, we will be discussing the general definition of Sexual Misconduct. Your New York Sex Crime Defense Attorney should provide specific information regarding the crime you are accused of or investigated for committing.
Sexual Misconduct is defined as when a person "engages in sexual contact with another person without such other person’s consent". New York Penal Law 130.00 (3).
"Sexual contact" occurs when the person intentionally touches the victim’s sexual or other intimate parts for the purpose of gratifying sexual desire or humiliating, degrading or abusing that person.
As New York Penal Law continues, the term "without consent" means:
(1) The victim is less than 17 years old; or
(2) The victim is mentally defective or physically helpless.
The criminal penalty for Sexual Misconduct as described above is "in the Class A misdemeanor and is punishable by incarceration not exceeding one year."
Many times these Sexual Misconduct charges arise from consensual sexual relationships between a minor and an adult. If one party is 17 years of age or younger, the violation of the Age of Consent is viewed as "a current crime . "
In New York State, consent means "that at the time of the conduct, the person does not expressly or impliedly acquiesce in the conduct." New York Penal Law S 130.05 (Scope of Article).
Meaning that under New York’s Age of Consent laws, if the person is 17 years of age or younger who is accused of committing Sexual Misconduct, the Age of Consent would not apply to that party.
The Age of Consent is 17 years of age which would mean that both parties — the adult and the minor — would be charged with Sexual Misconduct, if the accusation arose from a consensual sexual relationship.
Continuing with the general definition of Sexual Misconduct, if the minor was mentally defective or physically helpless, the criminal penalty for Sexual Misconduct would be downgraded to Sexual Abuse in the Third Degree. This is a class A misdemeanor punishable to a term of incarceration not exceeding one year.
"Mentally defective" is defined as a person having "suffered a physical or mental deficiency of injury which substantially interferes with that person’s ability to appraise or control his or her conduct." New York Penal Law S 130.05 (5).
Physical helplessness is defined as a person "who is either (i) unconscious or (ii) who is physically unable to communicate, with reasonable certainty, unwillingness to participate in, or inability to communicate an unwillingness to participate in, sexual relations." New York Penal Law S 130.05 (6).
These definitions are critical to the understanding your New York Sex Crime Defense Attorney may guide you to make an informed decision.
Recent Changes and Controversies
Recent changes in the law and controversies
In light of the jury verdicts in the Weinstein and Maxwell cases, a controversy has arisen as to whether the age of consent in New York should be raised or its application broadened. While some believe that the age of consent should be increased from 17 to 18 years, but retain the 4-year age gap limitation for defendants, others believe the law should be broadened to protect more minors regardless of the age of the defendant (likely under 21). Those in favor of keeping the law as is, believe that giving greater respect to the age of consent, like what they perceive was done in the case of Maxwell, will deter assaults from happening. Those who are against changing the law believe that the an increase in the age of consent could create pitfalls where sexual contact between two individuals, neither of whom is the aggressor, is criminalized.
Resources and Support
For more information on the legal age of consent in the state of New York, official state resources are available through the New York State Unified Court System’s Office of Court Administration. The OCA provides explanations of court processes, resources for those under the age of 18, and other general information about the law in New York.
In addition to OCA information, the New York State Department of Health has published a guide entitled "Teen Tips: Legal Rights for Teens in New York State , " which covers consent in medical situations and how those under the age of consent interact with the greater health care system. All sexual and reproductive health centers that receive state medical aid must offer information and referrals for private clinics and organizations that provide comprehensive, quality, confidential health care services to those ages 12 through 24.
Additionally, a guide entitled "Teen Dating Violence: Tips for Teens" offers information about where to find help for those experiencing dating violence; the site is published by the New York State Office for the Prevention of Domestic Violence, which is a resource for victims of domestic violence seeking information and support.