STATE OF NEW YORK
________________________________________________________________________
4936
2021-2022 Regular Sessions
IN SENATE
February 18, 2021
___________
Introduced by Sen. PARKER -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, the criminal procedure law, the family
court act, and the domestic relations law, in relation to sex offenses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 130.00 of the penal law is
2 amended to read as follows:
3 1. "[Sexual intercourse] Vaginal sexual contact" [has its ordinary
4 meaning and occurs upon any penetration, however slight] means conduct
5 between persons consisting of contact between the penis and the vagina
6 or vulva.
7 § 2. Section 130.25 of the penal law, as amended by chapter 1 of the
8 laws of 2000, is amended to read as follows:
9 § 130.25 Rape in the third degree.
10 A person is guilty of rape in the third degree when:
11 1. He or she engages in [sexual intercourse] vaginal sexual contact
12 with another person who is incapable of consent by reason of some factor
13 other than being less than seventeen years old;
14 2. Being twenty-one years old or more, he or she engages in [sexual
15 intercourse] vaginal sexual contact with another person less than seven-
16 teen years old; or
17 3. He or she engages in [sexual intercourse] vaginal sexual contact
18 with another person without such person's consent where such lack of
19 consent is by reason of some factor other than incapacity to consent.
20 Rape in the third degree is a class E felony.
21 § 3. Section 130.30 of the penal law, as amended by chapter 1 of the
22 laws of 2000, is amended to read as follows:
23 § 130.30 Rape in the second degree.
24 A person is guilty of rape in the second degree when:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02448-02-1
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1 1. being eighteen years old or more, he or she engages in [sexual
2 intercourse] vaginal sexual contact with another person less than
3 fifteen years old; or
4 2. he or she engages in [sexual intercourse] vaginal sexual contact
5 with another person who is incapable of consent by reason of being
6 mentally disabled or mentally incapacitated.
7 It shall be an affirmative defense to the crime of rape in the second
8 degree as defined in subdivision one of this section that the defendant
9 was less than four years older than the victim at the time of the act.
10 Rape in the second degree is a class D felony.
11 § 4. Section 130.35 of the penal law, as amended by chapter 1 of the
12 laws of 2000, is amended to read as follows:
13 § 130.35 Rape in the first degree.
14 A person is guilty of rape in the first degree when he or she engages
15 in [sexual intercourse] vaginal sexual contact with another person:
16 1. By forcible compulsion; or
17 2. Who is incapable of consent by reason of being physically helpless;
18 or
19 3. Who is less than eleven years old; or
20 4. Who is less than thirteen years old and the actor is eighteen years
21 old or more.
22 Rape in the first degree is a class B felony.
23 § 5. Subdivision 1 of section 210.16 of the criminal procedure law, as
24 added by chapter 571 of the laws of 2007, is amended to read as follows:
25 1. (a) In a case where an indictment or a superior court information
26 has been filed with a superior court which charges the defendant with a
27 felony offense enumerated in any section of article one hundred thirty
28 of the penal law where an act of "[sexual intercourse] vaginal sexual
29 contact", "oral sexual conduct" or "anal sexual conduct," as those terms
30 are defined in section 130.00 of the penal law, is required as an essen-
31 tial element for the commission thereof, the court shall, upon a request
32 of the victim within six months of the date of the crimes charged, order
33 that the defendant submit to human immunodeficiency virus (HIV) related
34 testing. Testing of a defendant shall be ordered when the result would
35 provide medical benefit to the victim or a psychological benefit to the
36 victim. Medical benefit shall be found when the following elements are
37 satisfied: (i) a decision is pending about beginning, continuing, or
38 discontinuing a medical intervention for the victim; and (ii) the result
39 of an HIV test of the accused could affect that decision, and could
40 provide relevant information beyond that which would be provided by an
41 HIV test of the victim. If testing the defendant would provide medical
42 benefit to the victim or a psychological benefit to the victim, then the
43 testing is to be conducted by a state, county, or local public health
44 officer designated by the order. Test results, which shall not be
45 disclosed to the court, shall be communicated to the defendant and the
46 victim named in the order in accordance with the provisions of section
47 twenty-seven hundred eighty-five-a of the public health law.
48 (b) For the purposes of this section, the terms "victim" and "appli-
49 cant" mean the person with whom the defendant is charged to have engaged
50 in an act of "[sexual intercourse] vaginal sexual contact", "oral sexual
51 conduct" or "anal sexual conduct", as those terms are defined in section
52 130.00 of the penal law, where such conduct with such victim was the
53 basis for charging the defendant with an offense specified in paragraph
54 (a) of this subdivision.
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1 § 6. Subdivision 1 of section 390.15 of the criminal procedure law, as
2 amended by chapter 264 of the laws of 2003, is amended to read as
3 follows:
4 1. (a) In any case where the defendant is convicted of a felony
5 offense enumerated in any section of article one hundred thirty of the
6 penal law, or any subdivision of section 130.20 of such law, where an
7 act of "[sexual intercourse] vaginal sexual contact", "oral sexual
8 conduct" or "anal sexual conduct," as those terms are defined in section
9 130.00 of the penal law, is required as an essential element for the
10 commission thereof, the court must, upon a request of the victim, order
11 that the defendant submit to human immunodeficiency (HIV) related test-
12 ing. The testing is to be conducted by a state, county, or local public
13 health officer designated by the order. Test results, which shall not be
14 disclosed to the court, shall be communicated to the defendant and the
15 victim named in the order in accordance with the provisions of section
16 twenty-seven hundred eighty-five-a of the public health law, but such
17 results and disclosure need not be completed prior to the imposition of
18 sentence.
19 (b) For the purposes of this section, the terms "defendant",
20 "conviction" and "sentence" mean and include, respectively, an "eligible
21 youth," a "youthful offender finding" and a "youthful offender sentence"
22 as those terms are defined in section 720.10 of this chapter. The term
23 "victim" means the person with whom the defendant engaged in an act of
24 "[sexual intercourse] vaginal sexual contact", "oral sexual conduct" or
25 "anal sexual conduct", as those terms are defined in section 130.00 of
26 the penal law, where such conduct with such victim was the basis for the
27 defendant's conviction of an offense specified in paragraph (a) of this
28 subdivision.
29 § 7. Subdivision 1 of section 347.1 of the family court act, as
30 amended by chapter 264 of the laws of 2003, is amended to read as
31 follows:
32 1. (a) In any proceeding where the respondent is found pursuant to
33 section 345.1 or 346.1 of this article, to have committed a felony
34 offense enumerated in any section of article one hundred thirty of the
35 penal law, or any subdivision of section 130.20 of such law, for which
36 an act of "[sexual intercourse] vaginal sexual contact", "oral sexual
37 conduct" or "anal sexual conduct", as those terms are defined in section
38 130.00 of the penal law, is required as an essential element for the
39 commission thereof, the court must, upon a request of the victim, order
40 that the respondent submit to human immunodeficiency (HIV) related test-
41 ing. The testing is to be conducted by a state, county, or local public
42 health officer designated by the order. Test results, which shall not be
43 disclosed to the court, shall be communicated to the respondent and the
44 victim named in the order in accordance with the provisions of section
45 twenty-seven hundred eighty-five-a of the public health law.
46 (b) For the purposes of this section, the term "victim" means the
47 person with whom the respondent engaged in an act of "[sexual inter-
48 course] vaginal sexual contact", "oral sexual conduct" or "anal sexual
49 conduct", as those terms are defined in section 130.00 of the penal law,
50 where such conduct with such victim was the basis for the court's find-
51 ing that the respondent committed acts constituting one or more of the
52 offenses specified in paragraph (a) of this subdivision.
53 § 8. Subdivision (a) of section 130.16 of the penal law, as amended by
54 chapter 264 of the laws of 2003, is amended to read as follows:
55 (a) Establish that an attempt was made to engage the victim in [sexual
56 intercourse] vaginal sexual contact, oral sexual conduct, anal sexual
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1 conduct, or sexual contact, as the case may be, at the time of the
2 occurrence; and
3 § 9. Subdivision 1 of section 130.20 of the penal law, as amended by
4 chapter 1 of the laws of 2000, is amended to read as follows:
5 1. He or she engages in [sexual intercourse] vaginal sexual contact
6 with another person without such person's consent; or
7 § 10. Paragraphs (a) and (b) of subdivision 1 of section 130.75 of the
8 penal law, as amended by chapter 264 of the laws of 2003, are amended to
9 read as follows:
10 (a) he or she engages in two or more acts of sexual conduct, which
11 includes at least one act of [sexual intercourse] vaginal sexual
12 contact, oral sexual conduct, anal sexual conduct or aggravated sexual
13 contact, with a child less than eleven years old; or
14 (b) he or she, being eighteen years old or more, engages in two or
15 more acts of sexual conduct, which include at least one act of [sexual
16 intercourse] vaginal sexual contact, oral sexual conduct, anal sexual
17 conduct or aggravated sexual contact, with a child less than thirteen
18 years old.
19 § 11. Subdivision 1 of section 235.00 of the penal law, as amended by
20 chapter 264 of the laws of 2003, is amended to read as follows:
21 1. "Obscene." Any material or performance is "obscene" if (a) the
22 average person, applying contemporary community standards, would find
23 that considered as a whole, its predominant appeal is to the prurient
24 interest in sex, and (b) it depicts or describes in a patently offensive
25 manner, actual or simulated: [sexual intercourse] vaginal sexual
26 contact, criminal sexual act, sexual bestiality, masturbation, sadism,
27 masochism, excretion or lewd exhibition of the genitals, and (c) consid-
28 ered as a whole, it lacks serious literary, artistic, political, and
29 scientific value. Predominant appeal shall be judged with reference to
30 ordinary adults unless it appears from the character of the material or
31 the circumstances of its dissemination to be designed for children or
32 other [specially] especially susceptible audience.
33 § 12. Subdivision 2 of section 235.22 of the penal law, as amended by
34 chapter 264 of the laws of 2003, is amended to read as follows:
35 2. by means of such communication he importunes, invites or induces a
36 minor to engage in [sexual intercourse] vaginal sexual contact, oral
37 sexual conduct or anal sexual conduct, or sexual contact with him, or to
38 engage in a sexual performance, obscene sexual performance, or sexual
39 conduct for his benefit.
40 § 13. Section 255.25 of the penal law, as amended by chapter 320 of
41 the laws of 2006, is amended to read as follows:
42 § 255.25 Incest in the third degree.
43 A person is guilty of incest in the third degree when he or she
44 marries or engages in [sexual intercourse] vaginal sexual contact, oral
45 sexual conduct or anal sexual conduct with a person whom he or she knows
46 to be related to him or her, whether through marriage or not, as an
47 ancestor, descendant, brother or sister of either the whole or the half
48 blood, uncle, aunt, nephew or niece.
49 Incest in the third degree is a class E felony.
50 § 14. Subdivision 3 of section 263.00 of the penal law, as amended by
51 chapter 264 of the laws of 2003, is amended to read as follows:
52 3. "Sexual conduct" means actual or simulated [sexual intercourse]
53 vaginal sexual contact, oral sexual conduct, anal sexual conduct, sexual
54 bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of
55 the genitals.
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1 § 15. Subdivision 3 of section 60.42 of the criminal procedure law, as
2 amended by section 1 of part R of chapter 55 of the laws of 2019, is
3 amended to read as follows:
4 3. rebuts evidence introduced by the people of the victim's failure to
5 engage in [sexual intercourse] vaginal sexual contact, oral sexual
6 conduct, anal sexual conduct or sexual contact during a given period of
7 time; or
8 § 16. Subdivision 3 of section 344.4 of the family court act, as
9 amended by chapter 264 of the laws of 2003, is amended to read as
10 follows:
11 3. rebuts evidence introduced by the presentment agency of the
12 victim's failure to engage in [sexual intercourse] vaginal sexual
13 contact, oral sexual conduct, anal sexual conduct or sexual contact
14 during a given period of time; or
15 § 17. Subdivision 4 of section 170 of the domestic relations law, as
16 amended by chapter 264 of the laws of 2003, is amended to read as
17 follows:
18 (4) The commission of an act of adultery, provided that adultery for
19 the purposes of articles ten, eleven, and eleven-A of this chapter, is
20 hereby defined as the commission of an act of [sexual intercourse] vagi-
21 nal sexual contact, oral sexual conduct or anal sexual conduct, volun-
22 tarily performed by the defendant, with a person other than the plain-
23 tiff after the marriage of plaintiff and defendant. Oral sexual conduct
24 and anal sexual conduct include, but are not limited to, sexual conduct
25 as defined in subdivision two of section 130.00 and subdivision three of
26 section 130.20 of the penal law.
27 § 18. Subdivision 4 of section 200 of the domestic relations law, as
28 amended by chapter 264 of the laws of 2003, is amended to read as
29 follows:
30 4. The commission of an act of adultery by the defendant; except where
31 such offense is committed by the procurement or with the connivance of
32 the plaintiff or where there is voluntary cohabitation of the parties
33 with the knowledge of the offense or where action was not commenced
34 within five years after the discovery by the plaintiff of the offense
35 charged or where the plaintiff has also been guilty of adultery under
36 such circumstances that the defendant would have been entitled, if inno-
37 cent, to a divorce, provided that adultery for the purposes of this
38 subdivision is hereby defined as the commission of an act of [sexual
39 intercourse] vaginal sexual contact, oral sexual conduct or anal sexual
40 conduct, voluntarily performed by the defendant, with a person other
41 than the plaintiff after the marriage of plaintiff and defendant. Oral
42 sexual conduct and anal sexual conduct include, but are not limited to,
43 sexual conduct as defined in subdivision two of section 130.00 and
44 subdivision three of section 130.20 of the penal law.
45 § 19. This act shall take effect on the ninetieth day after it shall
46 have become a law and shall apply to any offense on or after such effec-
47 tive date.
