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By: Madelyn Storms ’24
I would like to start by thanking Francis and Cindy Letro for funding my School of Law Public Interest Fellowship through the University at Buffalo School of Law Summer Funding & Fellowship Program. Public Interest is something I have been interested in my whole life, and although I am grateful for my experience with working in the Erie County District Attorney’s Office this year, I am extremely grateful to have the financial burden relieved.
This summer, I had the opportunity to work for the special victims’ unit of the DA’s Office. While I had the opportunity to observe a very diverse group of crimes during my time here, it was always the sex crimes that impacted me the most.
During my first few weeks here, an ADA asked me to help research a case involving a sexual assault. After spending the entire day researching what degree of rape the perpetrator could be charged on, the ADA informed me this case wasn’t a rape case at all.
According to § 130.01, sexual intercourse occurs with any type of penetration. On the surface, this seems innocuous and as a rather obvious observation. However, there is an almost insidious implication from this charge requiring a penetration element. For oral sexual conduct or anal sexual conduct, penetration is unneeded, only a sexual contact between the necessary body parts. Yet, if there is an unwanted sexual contact between a penis and a vagina that is non-penetrative, Penal Law § 130.03, dictates that this crime should be charged as a sexual contact whether than a rape.
Although this may seem to be a nitpick, the deviating standard of the needed elements for rape compared to other sex crimes can have devastating effects on the victims of this crime. This is apparent in the different standards needed to follow the statute of limitations. Under § 255.27 of New York Penal Law, first degree rape does not have a statute of limitations for criminal prosecution. Sexual contact, however, has a statute of limitations of only five years. While five years may seem to be a prolonged amount of time to report a sexual assault, it is not uncommon for victims to report their abuse years after the assault occurred. Many victims of sexual assault are children or vulnerable in other aspects and may not be able to fully comprehend what has happened to them. Unfortunately, because there was on sexual contact and not penetration, the victim in this case did not have access to criminal justice.
Beyond the scope of the statute of limitations, rape is also classified in a different category than sexual contact. While rape in the 1st degree is a class B felony, under § 130.65, sexual abuse in the first degree is only a class D felony. That means instead of an assailant being charged for up to 25 years, the sentence has a maximum of 5 years.
On top of jail sentencing and the statute of limitations, the language of the penal code for rape has serious gendered implications. While anal or oral sexual conduct can occur between various genders, rape has a more gendered connotation. If mere contact is sufficient for other sex crimes, it is unclear why this standard does not extend to rape. The penal laws for rape, like the laws for various other crimes, have deep roots in prejudice and misogyny. Marital rape and sodomy against men by women was not made illegal in New York State until 1984. People v. Liberta, 64 N.Y.2d 152 (1984). Since then, the law has also changed the amount of force required and other aspects of who can be sexually assaulted. The laws of sexual assault are subject to change and due to the discrepancies present in the current rape laws, it is clear that they are another aspect that should be changed for the better.
Name: Madelyn Storms ’24
Name of Fellowship: School of Law Public Interest Fellowship
Placement: Erie County District Attorney’s Office
Location: Buffalo, NY
One important lesson I have learned from this fellowship: “While I had the opportunity to observe a very diverse group of crimes during my time here, it was always the sex crimes that impacted me the most.”
UB School of Law Responds 