Third-Degree Rape Charges Against Al Dirschberger

Al Dirschberger, the former Erie County Commissioner of Social Services, was charged by a grand jury with third-degree rape and criminal sex acts. Criminal defense attorney Barry Covert spoke to WIVB about what charges in the third degree entail and what the penalties could be. The full story is available on the WIVB website and by watching the video below.

Definitions of degrees

Dirschberger has been charged with rape in the third degree after raping his 28-year-old employee. Mr. Covert explained to WIVB the differences among the degrees in regards to rape. Third degree is “the lowest level of rape charges. It is a lack of consent for some reason; in this case, it may be because she was intoxicated, maybe she was under the influence of some drugs,” he said. Mr. Covert continued, “The highest level, rape in the first degree, is forcible compulsion. That’s what we traditionally associate with rape: that you force someone to have that type of an act without their permission, against their will, while they were fighting you.” Rape in the second degree, Mr. Covert explained, involves lack of consent because the victim is mentally disabled impaired in some way.

“Rape in the third degree,” Mr. Covert said, “is the lowest level, an E felony, which provides for one and a third to four years’ incarceration as the maximum sentence, that is lack of consent for some other reason such as drugs or alcohol.”

Potential penalties

Mr. Covert was asked what the penalties are for a third-degree rape conviction compared to the penalties for first or second degree charges. “With rape in the first degree, you can have a sentence up to 25 years. It’s very, very serious,” he explained. “Rape in the third degree, however, the maximum sentence is indeterminate. One and a third to four [years], that’s the maximum, and then the Division of Parole will decide when you get out after your first application in about one year. Chances are you’ll do two [years] and two-thirds. So that’s significant jail time. It’s a felony and you still have to report under the state registry for sex offenders, but it is the lowest of the levels.”

Employer-employee relationship

WIVB asked Mr. Covert whether the employer-employee relationship between Dirschberger and his 28-year-old subordinate could be taken into consideration. “If he takes a plea or it’s proven beyond a reasonable doubt, the court will take that into consideration,” Mr. Covert responded. “It’s not an element of the offense, that’s not what makes it illegal, but the court will certainly look at the fact that—if, in fact, he’s guilty—that she was a subordinate to him. He had a level of control or power over her that is kind of unusual,” he explained. Mr. Covert told WIVB that, if Dirschberger pleads or is found guilty, this power dynamic could be considered in the sentencing phase.

About Barry N. Covert

Mr. Covert is a senior partner in Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area. He is known for his aggressive representation of clients in the areas of New York State and federal criminal trials and appeals; driving while intoxicated; constitutional law, including First Amendment, civil rights actions, and federal False Claims Act; defending against allegations of scientific misconduct and fraud, research misconduct and fraud, plagiarism, and fabrication of evidence; and professional licensing defense. Mr. Covert frequently provides legal analysis for WGRZ and other media outlets.