New York Governor Kathy Hochul swiftly signed the Rape is Rape bill into law this week, purporting to reform New York’s criminal sexual assault and rape statutes to make them fairer to survivors.
While the new laws are somewhat more rational, they tend to expand the scope of the rape statutes in a way that is at best meaningless and at worst could lower the burden of proof for prosecutors trying to lock people up for rape. Read overly broadly, they could even make it possible to commit rape “over clothing.”
The new laws go into effect next fall and generally won’t affect currently pending cases. The changes are pretty technical, but stay with me if you are interested. As always, if you are accused of rape or any other sex crime, you need to speak to a qualified attorney immediately — you cannot analyze the situation yourself based on what you read on the internet.
Here’s what’s changed:
Back in the days of witchcraft and slavery, sodomy was punishable by death in New York. Traditionally, sodomy was defined as most anal or oral contact and was a separate crime from rape. Laws against sodomy remained on the books until 2000.
In the 1960s, the legislature banned non-consensual “deviate sexual intercourse” (i.e. contact between mouth, anus, genitals and various permutations) as sodomy. In the early 2000s, the name of the law was changed to “Criminal Sexual Act,” which included oral and anal sexual contact.
Rape was traditionally a whole separate category of crime which was limited to non-consensual heterosexual intercourse (i.e. penetration of the vagina by the penis). There were also other crimes including aggravated sexual assault that fell short of actual rape. Of course, “non-consensual” included incapacity to consent due to age, both for rape and for criminal sexual act. In practice, at present, many sexual assaults are charged not as rape but as criminal sexual acts based on lack of consent or the age of the victim.
In order to prosecute a crime as rape, prosecutors had to show “any penetration, however slight.” Most of the time that was not controversial—rape is rape—but in one highly publicized case a hung jury in 2013 led to dismissal of a rape charge where there was not enough proof of penetration (the perpetrator, a police officer, was sentenced to 75-to-life for other crimes arising out of the same incident). That began a long campaign in Albany to remove the penetration requirement, which finally succeeded in Albany this week.
The Rape is Rape law changes “penetration, however slight” to “contact”—no penetration is now required for an assault to be a rape. It also does away with criminal sexual act as a separate category and groups all oral, anal, and vaginal contact together under the rape statutes (including statutory rape, where lack of consent is based only on age, even where the victim manifests consent).
This latter amendment does away with the last vestige of the homophobic anti-sodomy laws, whose original purpose had nothing to do with protecting people from forcible sexual conduct. That’s a welcome change.
And abolishing the “penetration however slight” requirement probably won’t make much difference in most cases. Defendants conceding the rest of the case but claiming there was no actual penetration are rare. The “however slight” language serves to define the act as pretty close to the new language requiring “contact between the penis and the vagina or vulva”.
There is one remaining ambiguity we will want to keep an eye on. Rape is now defined as, among other things, non-consensual “vaginal sexual contact” with or without penetration. The existing Penal Law, Section 130.00(3) specifies that “sexual contact” can be either direct or through clothing. When penetration was required, this provision clearly enough did not apply to rape. But with the new statute, it seems like courts might hold that rape can occur “directly or through clothing” under subsection (3). It does not seem like that is what the legislature had in mind (that’s not what happened in the 2013 case that brought the push for reform), but it will remain to be seen how the issue plays out in cases brought to court.