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A08734 Summary:

BILL NOA08734
 
SAME ASSAME AS S07157
 
SPONSORPaulin
 
COSPNSRGalef, Mosley, Crouch, Dinowitz
 
MLTSPNSRD'Urso, Solages
 
Add 52-b, Civ Rts L
 
Relates to creating a private right of action for unconsented removal or tampering with a sexually protective device.
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A08734 Actions:

BILL NOA08734
 
10/20/2017referred to judiciary
01/03/2018referred to judiciary
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A08734 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8734
 
SPONSOR: Paulin (MS)
  TITLE OF BILL: An act to amend the civil rights law, in relation to creating a private right of action for unconsented removal or tampering with a sexually protective device   PURPOSE: To provide a private right of action for unconsented removal or tamper- ing with a sexually protective device   SUMMARY OF PROVISIONS: Section 1 amends the civil rights law by adding a new section 52-b that creates a private right of action for the unconsented removal and tampering of a sexually protective device, provided that the parties who had agreed to sexual intercourse, oral sexual conduct or anal sexual conduct had consented to the act with the explicit understanding and knowledge that such device would be used. The section also provides that an action could be taken if one was intentionally misled into believing that a sexually protective device was used when it was not or was inop- erable. The section stipulates the pleading requirements of any claim, the recovery of damages, as well as a definition of a "sexually protec- tive device". Section 2 provides the effective date.   JUSTIFICATION: "Stealthing" is the colloquial term given to the secretive and non-con- sensual removal of a condom during otherwise consensual intercourse. A recent article in the Columbia Journal of Gender and Law has brought critical attention to this practice, which describes it as "rape adja- cent" and akin to rape. Such an act can be understood to transform consensual sex - where condom usage was a condition for consent -- into nonconsensual sex, leaving victims exposed to the physical risks of pregnancy and sexually transmitted disease, as well as the mental violations of dignity and autonomy. While the term "stealthing" might be new, the practice of nonconsensual condom removal itself is not. Since the publication of the Columbia article, a growing number of victims have come forward who no longer feel that their experiences were isolated incidents. Offenders, on the other hand, have existed in online communities for some time where they describe their motivations - which often include a need for control, domination or sexual supremacy - as well as share tips on how to remove or break a condom without their partner being aware. Admitted accounts from perpetrators have also pointed to gender-motivated reasons linked to gender-subordination and misogyny. While men have also been noted to be victims of nonconsensual condom removal, the majority of victims are women. An argument for defining nonconsensual condom removal as a form of sexu- al assault revolves around the idea of affirmative consent -- wherein condom removal vitiates consent. This concept was preserved in state statute with the groundbreaking 2015 "Enough is Enough" law tackling college campus sexual assault and included a uniform definition of affirmative consent. This definition states that affirmative consent is "a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding will- ingness to engage in sexual activity." Using this reasoning, if consent is based on the use of a condom and that condom is removed or not used at all without the consent or knowledge of one of the participants, the original consent is at an end. Furthermore, sex with and without a condom have very different amounts of risk involved, and are therefore separate acts that require separate consent. Currently, no record is available indicating that a U.S. Court has ever been asked to consider condom removal. (However earlier this year, a Swiss court found a man who had removed a condom during penetrative sex without his partner's consent guilty of rape, although an appeals court later changed the conviction to a lesser charge.) Nevertheless, rape and criminal sexual assault cases are difficult to successfully prosecute. This legislation would offer to victims a more viable cause of action to better address the varied risks and harms they endure as a result of nonconsensual condom removal. The bill creates a civil path with new tort specific to the act while prohibiting the removal of a condom during sex without both partners' affirmative permission. By passing this legislation, New York would recognize that victims of nonconsensual condom removal experience real harms - emotional, financial and physical - to which the law might provide remedy through compensation or simply an opportunity to be heard and validated.   LEGISLATIVE HISTORY: This is a new bill.   FISCAL IMPLICATIONS: None   EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall have become a law.
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A08734 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8734
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    October 20, 2017
                                       ___________
 
        Introduced  by M. of A. PAULIN, GALEF, MOSLEY, CROUCH -- Multi-Sponsored
          by -- M. of A.   D'URSO, SOLAGES -- read  once  and  referred  to  the
          Committee on Judiciary
 
        AN  ACT to amend the civil rights law, in relation to creating a private
          right of action for unconsented removal or tampering with  a  sexually
          protective device

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The civil rights law is amended by  adding  a  new  section
     2  52-b to read as follows:
     3    §  52-b.  Private right of action for unconsented removal or tampering
     4  with a sexually protective device. 1. Any person who engaged  in  sexual
     5  intercourse,  oral  sexual conduct or anal sexual conduct, as defined in
     6  section 130.00 of the penal law, with another person that  was  mutually
     7  agreed  upon by the parties involved with the explicit understanding and
     8  knowledge that a sexually protective device would be used shall  have  a
     9  private  right of action for damages against such other person under any
    10  of the following conditions:
    11    (a) The other person intentionally  and  without  consent  removed  or
    12  tampered  with such sexually protective device during such sexual inter-
    13  course, oral sexual conduct or anal sexual conduct, in a  manner  likely
    14  to render such device ineffective for its common purpose;
    15    (b) The other person intentionally and without consent used a sexually
    16  protective device during such sexual intercourse, oral sexual conduct or
    17  anal  sexual  conduct that such other person knew had been tampered with
    18  in a manner likely to render such  device  ineffective  for  its  common
    19  purpose; or
    20    (c)  The  other  person intentionally misled the person into believing
    21  that a sexually protective device was being used by  such  other  person
    22  during  such  sexual  intercourse,  oral  sexual  conduct or anal sexual
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13478-02-7

        A. 8734                             2
 
     1  conduct, and such sexually protective device was  known  by  such  other
     2  person to be either not used or inoperable.
     3    2.  Any  claim  made  pursuant  to this section must meet the pleading
     4  requirements of subdivision (b) of rule three thousand  sixteen  of  the
     5  civil  practice law and rules and shall be demonstrated to the satisfac-
     6  tion of the finder of fact by clear and convincing evidence.
     7    3. Damages recovered by a plaintiff pursuant to this section shall  be
     8  limited to compensatory damages.
     9    4. For purposes of this section, the term "sexually protective device"
    10  shall  mean  any  one  of the following intended to prevent pregnancy or
    11  sexually transmitted  infection:  male  or  female  condom,  spermicide,
    12  diaphragm,  cervical  cap,  contraceptive sponge, dental dam, or another
    13  physical device.
    14    § 2. This act shall take effect on the ninetieth day  after  it  shall
    15  have  become  a  law, and shall apply to acts occurring on or after such
    16  date.
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