STATE OF NEW YORK
________________________________________________________________________
692
2023-2024 Regular Sessions
IN ASSEMBLY
January 11, 2023
___________
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 (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
A. 692 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.
