STATE OF NEW YORK
________________________________________________________________________
5062--A
2017-2018 Regular Sessions
IN SENATE
March 6, 2017
___________
Introduced by Sens. MONTGOMERY, BAILEY, COMRIE, HOYLMAN, PARKER,
PERSAUD, RIVERA, SAVINO, SERRANO, SQUADRON -- read twice and ordered
printed, and when printed to be committed to the Committee on Judici-
ary -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the civil practice law and rules, the criminal procedure
law, the executive law, and the legislative law in relation to the use
in evidence of the fact of possession or presence on the premises of
condoms and other sexual and reproductive health devices; and to
repeal paragraph (d) of subdivision 1 of section 160.10 of the crimi-
nal procedure law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "End crimi-
2 nalization of condoms act".
3 § 2. Legislative findings. The legislature hereby finds that promoting
4 and protecting health and respecting and fulfilling human rights are
5 necessarily linked, and that health-oriented and rights-based law
6 enforcement efforts are central to the effective provision of government
7 services for the benefit of the people of the State. Article 17, section
8 3 of the New York constitution requires that the legislature protect and
9 promote the health of the inhabitants of this state as a matter of
10 public concern. Despite these provisions, for purposes of prosecuting
11 certain criminal, civil and administrative offenses, reproductive and
12 sexual health tools, including condoms, are currently being destroyed,
13 confiscated, or used as evidence by law enforcement officers. This
14 legislation is intended to strengthen the public health of all New York-
15 ers, including the most vulnerable, while preserving the ability of law
16 enforcement to prosecute other crimes such as felony sexual offenses.
17 The purpose of this bill is to avoid the disparate impact of the prac-
18 tice of citing condoms and other reproductive and sexual health tools as
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06195-03-7
S. 5062--A 2
1 evidence upon survivors of trafficking and people who are or are
2 profiled as being engaged in the sex trades.
3 § 3. The civil practice law and rules is amended by adding a new
4 section 4519-a to read as follows:
5 § 4519-a. Possession of reproductive or sexual health devices; receipt
6 into evidence. 1. The fact of possession of a condom or other reproduc-
7 tive or sexual health device may not be received in evidence in any
8 trial, hearing or proceeding pursuant to subdivision one of section
9 twelve and article ten of the multiple dwelling law, sections twelve-a
10 and twenty-three hundred twenty of the public health law, section two
11 hundred thirty-one of the real property law or subdivision five of
12 section seven hundred eleven and section seven hundred fifteen of the
13 real property actions and proceedings law, or by any law, local law or
14 ordinance of a political subdivision of this state, or by any word, rule
15 or regulation of any governmental instrumentality authorized by law to
16 adopt the same as evidence of prostitution, patronizing a prostitute,
17 promoting prostitution, permitting prostitution, maintaining a premises
18 for prostitution, lewdness or assignation, maintaining a bawdy house,
19 compelling prostitution, or sex trafficking.
20 2. "Reproductive or sexual health device" shall include any contracep-
21 tive or other tool used to prevent unwanted pregnancy or the trans-
22 mission of HIV or other sexually transmitted diseases, including but not
23 limited to male condoms, female condoms, lubricants, pre-exposure
24 prophylaxis ("PrEP"), post-exposure prophylaxis ("PEP"), HIV anti-retro-
25 viral medication, spermicide, hormonal methods, emergency contraception,
26 diaphragm, cervical cap, or sponge.
27 § 4. Section 60.47 of the criminal procedure law, as added by section
28 2 of part I of chapter 57 of the laws of 2015, is amended to read as
29 follows:
30 § 60.47 Possession of condoms or other reproductive or sexual health
31 device; receipt into evidence.
32 1. Evidence that a person was in possession of one or more condoms or
33 other reproductive or sexual health device may not be admitted at any
34 trial, hearing, or other proceeding in a prosecution for [section
35 230.00] any offense, or an attempt to commit any offense, defined in
36 article two hundred thirty or section 240.37 of the penal law, or
37 section sixty-five hundred twelve of the education law, or any law,
38 local law or ordinance of a political subdivision of this state, or any
39 word, rule or regulation of any governmental instrumentality authorized
40 by law to adopt the same, for the purpose of establishing probable cause
41 for an arrest or proving any person's commission or attempted commission
42 of such offense, as evidence of prostitution or trafficking-related
43 activity.
44 2. "Reproductive or sexual health device" shall include any contracep-
45 tive or other tool used to prevent unwanted pregnancy or the trans-
46 mission of HIV or other sexually transmitted diseases, including but not
47 limited to male condoms, female condoms, lubricant, pre-exposure prophy-
48 laxis ("PrEP"), post-exposure prophylaxis ("PEP"), HIV anti-retroviral
49 medication, spermicide, hormonal methods, emergency contraception,
50 diaphragm, cervical cap, or sponge.
51 § 5. Paragraph (d) of subdivision 1 of section 160.10 of the criminal
52 procedure law is REPEALED.
53 § 5-a. Paragraph (c) of subdivision 1 of section 160.10 of the crimi-
54 nal procedure law, as amended by chapter 762 of the laws of 1971, is
55 amended to read as follows:
S. 5062--A 3
1 (c) A misdemeanor defined outside the penal law which would constitute
2 a felony if such person had a previous judgment of conviction for a
3 crime[; or].
4 § 6. The opening paragraph of subdivision 1, subdivision 2 and subdi-
5 vision 3 of section 160.55 of the criminal procedure law, the opening
6 paragraph of subdivision 1 as amended by chapter 169 of the laws of
7 1994, subdivision 2 as amended by chapter 476 of the laws of 2009 and
8 subdivision 3 as amended by chapter 249 of the laws of 1981 and renum-
9 bered by chapter 142 of the laws of 1991, are amended to read as
10 follows:
11 Upon the termination of a criminal action or proceeding against a
12 person by the conviction of such person of a traffic infraction or a
13 violation, other than [a violation of loitering as described in para-
14 graph (d) or (e) of subdivision one of section 160.10 of this chapter
15 or] the violation of operating a motor vehicle while ability impaired as
16 described in subdivision one of section eleven hundred ninety-two of the
17 vehicle and traffic law, unless the district attorney upon motion with
18 not less than five days notice to such person or his or her attorney
19 demonstrates to the satisfaction of the court that the interests of
20 justice require otherwise, or the court on its own motion with not less
21 than five days notice to such person or his or her attorney determines
22 that the interests of justice require otherwise and states the reasons
23 for such determination on the record, the clerk of the court wherein
24 such criminal action or proceeding was terminated shall immediately
25 notify the commissioner of the division of criminal justice services and
26 the heads of all appropriate police departments and other law enforce-
27 ment agencies that the action has been terminated by such conviction.
28 Upon receipt of notification of such termination:
29 2. A report of the termination of the action or proceeding by
30 conviction of a traffic violation or a violation other than [a violation
31 of loitering as described in paragraph (d) or (e) of subdivision one of
32 section 160.10 of this title or] the violation of operating a motor
33 vehicle while ability impaired as described in subdivision one of
34 section eleven hundred ninety-two of the vehicle and traffic law, shall
35 be sufficient notice of sealing to the commissioner of the division of
36 criminal justice services unless the report also indicates that the
37 court directed that the record not be sealed in the interests of
38 justice. Where the court has determined pursuant to subdivision one of
39 this section that sealing is not in the interests of justice, the clerk
40 of the court shall include notification of that determination in any
41 report to such division of the disposition of the action or proceeding.
42 When the defendant has been found guilty of a violation of harassment in
43 the second degree and it was determined pursuant to subdivision eight-a
44 of section 170.10 of this title that such violation was committed
45 against a member of the same family or household as the defendant, the
46 clerk of the court shall include notification of that determination in
47 any report to such division of the disposition of the action or proceed-
48 ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d)
49 of subdivision one of this section.
50 3. A person against whom a criminal action or proceeding was termi-
51 nated by such person's conviction of a traffic infraction or violation
52 other than [a violation of loitering as described in paragraph (d) or
53 (e) of subdivision one of section 160.10 of this chapter or] the
54 violation of operating a motor vehicle while ability impaired as
55 described in subdivision one of section eleven hundred ninety-two of the
56 vehicle and traffic law, prior to the effective date of this section,
S. 5062--A 4
1 may upon motion apply to the court in which such termination occurred,
2 upon not less than twenty days notice to the district attorney, for an
3 order granting to such person the relief set forth in subdivision one of
4 this section, and such order shall be granted unless the district attor-
5 ney demonstrates to the satisfaction of the court that the interests of
6 justice require otherwise.
7 § 7. Section 841 of the executive law is amended by adding a new
8 subdivision 7-b to read as follows:
9 7-b. Take such steps as may be necessary to ensure that all police
10 officers and peace officers certified pursuant to subdivision three of
11 this section receive appropriate instruction regarding the evidentiary
12 prohibition set forth in section 60.47 of the criminal procedure law and
13 section forty-five hundred nineteen-a of the civil practice law and
14 rules relating to the use of condoms and other reproductive or sexual
15 health devices as evidence in certain trials, hearings or proceedings,
16 or as a basis for probable cause for arrest, including that unauthorized
17 seizure or confiscation of condoms and other reproductive or sexual
18 health devices is a breach of public policy.
19 § 8. The legislative law is amended by adding a new section 49 to read
20 as follows:
21 § 49. Requirement with respect to bills amending certain laws which
22 affect health and human rights. Whenever a committee favorably reports a
23 bill to amend articles two hundred thirty or section 240.37 of the penal
24 law, or, at the discretion of the voting majority of the committee, any
25 bill which, if passed, would increase or decrease the number of arres-
26 tees or pretrial or sentenced population of correctional facilities in
27 this state, a majority of the committee members voting may request that
28 a health and human rights impact statement be prepared. The legislature
29 shall by concurrent resolution of the senate and assembly prescribe
30 rules requiring health and human rights impact statements to accompany,
31 on a separate form, bills and amendments to bills after such bills have
32 been reported from committee. Health and human rights impact statements
33 shall be prepared before the bill is considered for final passage. The
34 statement shall indicate whether the bill would have a disparate impact
35 by race, ethnicity, religion, age, gender, gender identity or
36 expression, sexual orientation, immigration status, disability, or hous-
37 ing status composition of the arrestee and correctional facility popu-
38 lation and an explanation of that impact. Any impact statement printed
39 with or prepared for a bill is solely for the purpose of information,
40 summarization and explanation for members of the legislature and shall
41 not be construed to represent the intent of the legislature or either
42 chamber thereof for any purpose. Each impact statement shall bear the
43 following disclaimer: "The following health and human rights impact
44 statement is prepared for the benefit of the members of the legislature,
45 solely for purposes of information, summarization and explanation and
46 does not represent the intent of the legislature or either chamber ther-
47 eof for any purpose."
48 § 9. The legislative law is amended by adding a new section 83-n to
49 read as follows:
50 § 83-n. Legislative commission on health and human rights. 1. The
51 legislature hereby finds that promoting and protecting health and
52 respecting and fulfilling human rights are necessarily linked, and that
53 coordination between health and law enforcement efforts is central to
54 the effective provision of government services for the benefit of the
55 people of the state.
S. 5062--A 5
1 2. A legislative commission on health and human rights is hereby
2 established to examine, evaluate and make recommendations concerning
3 rights-based approaches to health and law enforcement interventions.
4 The commission shall act as a mechanism for ongoing and meaningful
5 involvement of those who are or potentially could be affected by this
6 law, including, but not limited to, survivors of trafficking, people who
7 are or are profiled as being involved in the sex trades, communities of
8 color, lesbian, gay, bisexual and transgender people, and people in
9 custodial settings. The commission shall provide monitoring and expert
10 perspective to the legislature, promoting awareness of problems in real
11 time as they emerge, increase cooperation and collaboration between the
12 individuals and communities directly impacted and their legislators, and
13 allow legislators to share responsibility for successes and failures of
14 these initiatives. The commission shall make such recommendations as it
15 may deem necessary as to regulations, policies, programs, and proposed
16 legislation to provide an equitable system of providing for the public
17 safety while also protecting public health, to encourage the most effec-
18 tive use of state and local resources, to preserve the fiscal integrity
19 of both state and local government health systems and otherwise to
20 strengthen the fundamental human right to health.
21 3. The commission shall consist of ten representatives from organiza-
22 tions that promote advocacy by and for directly impacted communities.
23 From among the members so appointed, a chairperson and vice chairperson
24 shall be designated by the joint action of the chairpersons of the
25 senate and assembly health committees. Any vacancy that occurs in the
26 commission or in the chairmanship or vice chairmanship shall be filled
27 in the same manner in which the original appointment or designation was
28 made.
29 4. The commission in addition to the above mentioned powers shall have
30 all the powers and privileges of a legislative committee pursuant to
31 this chapter.
32 5. For the accomplishment of its purpose, the commission shall be
33 authorized and empowered to undertake any study, inquiry, survey, or
34 analysis it may deem relevant through its own personnel in cooperation
35 with or by agreement with any other public or private agency.
36 6. The commission may require and shall receive from any department,
37 board, bureau, commission, authority, office, or other instrumentality
38 of the state, and from any county, city, town or village of this state,
39 such facilities, assistance, and data, as it deems necessary or desira-
40 ble for proper execution of its powers and duties.
41 7. The commission may hold public or private hearings and shall have
42 full powers to subpoena witnesses and all records or data it shall deem
43 necessary or desirable pursuant to this chapter.
44 8. The members of the commission shall serve on a voluntary basis and
45 receive no compensation for their services.
46 § 10. Paragraph (f) of subdivision 4 of section 837 of the executive
47 law, as amended by chapter 169 of the laws of 1994, is amended and a new
48 paragraph (g) is added to read as follows:
49 (f) Accomplish all of the functions, powers, and duties set forth in
50 paragraphs (a), (b), (c) and (d) of this subdivision with respect to the
51 processing and disposition of cases involving violent felony offenses
52 specified in subdivision one of section 70.02 of the penal law[.]; and
53 (g) Accomplish all of the functions, powers, and duties set forth in
54 paragraphs (a), (b), (c) and (d) of this subdivision with respect to all
55 chapters of law resulting from legislative bills that have been subject
56 to the provisions of sections forty-nine and eighty-three-n of the
S. 5062--A 6
1 legislative law. The division shall present to the governor, the tempo-
2 rary president of the senate, the minority leader of the senate, the
3 speaker of the assembly and the minority leader of the assembly an annu-
4 al report containing the statistics and other information relevant to
5 this subdivision.
6 § 11. If any provision of this article or the application thereof to
7 any person, circumstances, or political subdivision of this state is
8 adjudged invalid by a court of competent jurisdiction such judgment
9 shall not affect or impair the validity of the other provisions of the
10 article or the application thereof to other political subdivisions of
11 this state, persons, and circumstances.
12 § 12. This act shall take effect on the first of March next succeeding
13 the date on which it shall have become a law; provided, however that the
14 amendments to article 5-A of the legislative law made by section nine of
15 this act shall not affect the repeal of such article and shall be deemed
16 repealed therewith.