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S02628 Summary:

BILL NOS02628
 
SAME ASSAME AS A00692
 
SPONSORMAY
 
COSPNSRRAMOS, WEBB
 
MLTSPNSR
 
Amd §§130.05 & 130.10, Pen L
 
Establishes incapacity to consent when a person is a witness to or subject of an investigation under certain circumstances.
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S02628 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2628
 
                               2023-2024 Regular Sessions
 
                    IN SENATE
 
                                    January 23, 2023
                                       ___________
 
        Introduced  by  Sens.  MAY, RAMOS -- read twice and ordered printed, and
          when printed to be committed to the Committee on Codes
 
        AN ACT to amend the penal law, in relation to establishing incapacity to
          consent when a person is a witness to or subject of  an  investigation
          under certain circumstances

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Paragraphs (i) and (j) of subdivision 3 of  section  130.05
     2  of the penal law, paragraph (i) as amended and paragraph (j) as added by
     3  section  1 of part JJ of chapter 55 of the laws of 2018, are amended and
     4  a new paragraph (k) is added to read as follows:
     5    (i) a resident  or  inpatient  of  a  residential  facility  operated,
     6  licensed  or  certified  by  (i)  the  office of mental health; (ii) the
     7  office for people with developmental disabilities; or (iii)  the  office
     8  of [alcoholism and substance abuse] addiction services and supports, and
     9  the actor is an employee of the facility not married to such resident or
    10  inpatient.  For  purposes of this paragraph, "employee" means either: an
    11  employee of the agency operating the residential facility, who knows  or
    12  reasonably  should  know  that such person is a resident or inpatient of
    13  such facility and who provides direct  care  services,  case  management
    14  services,  medical  or other clinical services, habilitative services or
    15  direct supervision of the residents in the facility in which  the  resi-
    16  dent resides; or an officer or other employee, consultant, contractor or
    17  volunteer  of  the  residential facility, who knows or reasonably should
    18  know that the person is a resident of such facility and who is in direct
    19  contact with  residents  or  inpatients;  provided,  however,  that  the
    20  provisions  of this paragraph shall only apply to a consultant, contrac-
    21  tor or volunteer providing services pursuant to a  contractual  arrange-
    22  ment  with the agency operating the residential facility or, in the case
    23  of a volunteer, a written agreement with such  facility,  provided  that
    24  the  person  received  written  notice concerning the provisions of this
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00453-01-3

        S. 2628                             2
 
     1  paragraph; provided further, however, "employee"  shall  not  include  a
     2  person  with a developmental disability who is or was receiving services
     3  and is also an employee of a service provider and who has sexual contact
     4  with  another  service  recipient  who  is  a  consenting  adult who has
     5  consented to such contact; [or]
     6    (j) detained or otherwise in the custody of a  police  officer,  peace
     7  officer,  or  other  law  enforcement official and the actor is a police
     8  officer, peace officer or other law enforcement official who either: (i)
     9  is detaining or maintaining custody of such person; or  (ii)  knows,  or
    10  reasonably should know, that at the time of the offense, such person was
    11  detained or in custody[.]; or
    12    (k)  a  witness  to  or victim of an incident under investigation by a
    13  police officer, peace officer or other law enforcement  official,  or  a
    14  suspect or person of interest in such an investigation, and the actor is
    15  a  police  officer,  peace officer or other law enforcement official who
    16  either: (i) is participating in the investigation of such  incident;  or
    17  (ii)  knows, or reasonably should know, that at the time of the offense,
    18  such person was a witness, victim, suspect, or  person  of  interest  in
    19  such investigation.  Notwithstanding the provisions of this paragraph, a
    20  witness  to, victim, suspect, or person of interest in an incident under
    21  investigation by a police officer, peace officer, or other law  enforce-
    22  ment  official  shall not be deemed incapable of consent where the actor
    23  and such witness, victim, suspect, or person of interest had engaged  in
    24  a sexual relationship prior to the commencement of such investigation.
    25    §  2.  Subdivision 4 of section 130.10 of the penal law, as amended by
    26  section 2 of part JJ of chapter 55 of the laws of 2018,  is  amended  to
    27  read as follows:
    28    4. In any prosecution under this article in which the victim's lack of
    29  consent  is  based solely on his or her incapacity to consent because he
    30  or she was less than seventeen years old, mentally disabled, a client or
    31  patient and the actor is a health care provider, detained  or  otherwise
    32  in custody of law enforcement under the circumstances described in para-
    33  graph  (j)  of  subdivision  three  of section 130.05 of this article, a
    34  witness to or  subject  of  an  investigation  under  the  circumstances
    35  described  in  paragraph  (k)  of subdivision three of section 130.05 of
    36  this article, or committed to the care and custody or supervision of the
    37  state department of corrections and community supervision or a  hospital
    38  and  the  actor is an employee, it shall be a defense that the defendant
    39  was married to the victim as defined  in  subdivision  four  of  section
    40  130.00 of this article.
    41    §  3.  This  act shall take effect on the thirtieth day after it shall
    42  have become a law.
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