NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5399
SPONSOR: Hunter TITLE OF BILL:
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
PURPOSE:
To establish incapacity to consent when a person is a witness to or
victim of an incident under investigation.
SUMMARY OF PROVISIONS:
Section 1: adds a new paragraph k to subdivision 3 of section 130.05 of
the penal law to add persons who are witnesses to or victims of an inci-
dent under investigation by certain officials to establish incapacity to
consent.
Section 2: Amends subdivision 4 of section 130.01 of the panel law to
include individuals who are witness to or subject of an investigation
under the circumstances described in the previous section.
JUSTIFICATION:
While current law prohibits sexual contact between law enforcement offi-
cers and those in their custody, the penal code does not include a simi-
lar provision for law enforcement officers investigating an incident
having sexual contact with a victim or a witness. This bill would amend
the state law to ensure that incidents of sexual contact between a law
enforcement officer and anyone who is a victim or a witness in that
incident would also be prohibited under the penal code.
FISCAL IMPACT:
Minimal.
LEGISLATIVE HISTORY:
2023-24: A692
2021-22: A4484A
2020: A.10720
EFFECTIVE DATE:
30 days after becoming law.
STATE OF NEW YORK
________________________________________________________________________
5399
2025-2026 Regular Sessions
IN ASSEMBLY
February 13, 2025
___________
Introduced by M. of A. HUNTER, EPSTEIN, JACKSON, STIRPE -- read once and
referred 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 (j) and (k) of subdivision 3 of section 130.05
2 of the penal law, paragraph (j) as added by section 1 of part JJ of
3 chapter 55 of the laws of 2018, and paragraph (k) as added by chapter
4 503 of the laws of 2024, are amended and a new paragraph (l) is added to
5 read as follows:
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) under the supervision of a local probation department, pursuant to
13 section two hundred seventy-two of the correction law, or another local
14 department or agency which fulfills a similar function and the actor is
15 an employee who knows or reasonably should know that such person is
16 committed to the supervision of a local probation department. For
17 purposes of this paragraph, "employee" means an employee of such local
18 probation department or agency who, as part of his or her employment,
19 supervises the victim at the time of the offense or has supervised the
20 victim and the victim is still under supervision of a local probation
21 department or agency at the time of the offense[.]; or
22 (l) a witness to or victim of an incident under investigation by a
23 police officer, peace officer or other law enforcement official, or a
24 suspect or person of interest in such an investigation, and the actor is
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08589-01-5
A. 5399 2
1 a police officer, peace officer or other law enforcement official who
2 either: (i) is participating in the investigation of such incident; or
3 (ii) knows, or reasonably should know, that at the time of the offense,
4 such person was a witness, victim, suspect, or person of interest in
5 such investigation. Notwithstanding the provisions of this paragraph, a
6 witness to, victim, suspect, or person of interest in an incident under
7 investigation by a police officer, peace officer, or other law enforce-
8 ment official shall not be deemed incapable of consent where the actor
9 and such witness, victim, suspect, or person of interest had engaged in
10 a sexual relationship prior to the commencement of such investigation.
11 § 2. Subdivision 4 of section 130.10 of the penal law, as amended by
12 section 2 of part JJ of chapter 55 of the laws of 2018, is amended to
13 read as follows:
14 4. In any prosecution under this article in which the victim's lack of
15 consent is based solely on [his or her] their incapacity to consent
16 because [he or she] such victim was less than seventeen years old,
17 mentally disabled, a client or patient and the actor is a health care
18 provider, detained or otherwise in custody of law enforcement under the
19 circumstances described in paragraph (j) of subdivision three of section
20 130.05 of this article, a witness to or subject of an investigation
21 under the circumstances described in paragraph (l) of subdivision three
22 of section 130.05 of this article, or committed to the care and custody
23 or supervision of the state department of corrections and community
24 supervision or a hospital and the actor is an employee, it shall be a
25 defense that the defendant was married to the victim as defined in
26 subdivision four of section 130.00 of this article.
27 § 3. This act shall take effect on the thirtieth day after it shall
28 have become a law; provided however, that if chapter 503 of the laws of
29 2024 shall not have taken effect on or before such date then the amend-
30 ments to paragraph (k) of subdivision 3 of section 130.05 of the penal
31 law made by section one of this act shall take effect on the same date
32 and in the same manner as such chapter of the laws of 2024, takes
33 effect.
