|SAME AS||SAME AS S07157|
|COSPNSR||Galef, Mosley, Crouch, Dinowitz|
|Add §52-b, Civ Rts L|
|Relates to creating a private right of action for unconsented removal or tampering with a sexually protective device.|
|10/20/2017||referred to judiciary|
|01/03/2018||referred to judiciary|
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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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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. LBD13478-02-7A. 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.