STATE OF NEW YORK
________________________________________________________________________
2056--B
Cal. No. 27
2019-2020 Regular Sessions
IN ASSEMBLY
January 22, 2019
___________
Introduced by M. of A. BRAUNSTEIN, GUNTHER, WEPRIN, PAULIN, OTIS,
BUTTENSCHON, M. L. MILLER -- read once and referred to the Committee
on Codes -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- reported from committee,
advanced to a third reading, amended and ordered reprinted, retaining
its place on the order of third reading
AN ACT to amend the penal law, the criminal procedure law, the family
court act and the civil rights law, in relation to establishing the
crime of unlawful dissemination or publication of an intimate image
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The penal law is amended by adding a new section 245.15 to
2 read as follows:
3 § 245.15 Unlawful dissemination or publication of an intimate image.
4 1. A person is guilty of unlawful dissemination or publication of an
5 intimate image when:
6 (a) with intent to cause harm to the emotional, financial or physical
7 welfare of another person, he or she intentionally disseminates or
8 publishes a still or video image of such other person, who is identifi-
9 able from the still or video image itself or from information displayed
10 in connection with the still or video image, without such other person's
11 consent, which depicts:
12 (i) an unclothed or exposed intimate part of such other person; or
13 (ii) such other person engaging in sexual conduct as defined in subdi-
14 vision ten of section 130.00 of this chapter with another person; and
15 (b) such still or video image was taken under circumstances when the
16 person depicted had a reasonable expectation of privacy and the defend-
17 ant knew or reasonably should have known the person depicted intended
18 for the still or video image to remain private, regardless of whether
19 the defendant was present when the still or video image was taken.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06276-09-9
A. 2056--B 2
1 2. For purposes of this section "intimate part" means the naked geni-
2 tals, pubic area, anus or female nipple of the person.
3 2-a. For purposes of this section "disseminate" and "publish" shall
4 have the same meaning as defined in section 250.40 of this title.
5 3. This section shall not apply to the following:
6 (a) the reporting of unlawful conduct;
7 (b) dissemination or publication of an intimate image made during
8 lawful and common practices of law enforcement, legal proceedings or
9 medical treatment;
10 (c) images involving voluntary exposure in a public or commercial
11 setting;
12 (d) dissemination or publication of an intimate image made for a
13 legitimate public purpose;
14 (e) providers of an interactive computer service for images provided
15 by another person. For purposes of this subdivision, "interactive
16 computer service" shall mean: any information service, system or access
17 software provider that provides or enables computer access by multiple
18 users to a computer server, including specifically a service or system
19 that provides access to the internet and such systems operated or
20 services offered by libraries or educational institutions.
21 Unlawful dissemination or publication of an intimate image is a class
22 A misdemeanor.
23 § 2. The opening paragraph of subdivision 1 of section 530.11 of the
24 criminal procedure law, as amended by section 4 of part NN of chapter 55
25 of the laws of 2018, is amended to read as follows:
26 The family court and the criminal courts shall have concurrent juris-
27 diction over any proceeding concerning acts which would constitute
28 disorderly conduct, unlawful dissemination or publication of an intimate
29 image, harassment in the first degree, harassment in the second degree,
30 aggravated harassment in the second degree, sexual misconduct, forcible
31 touching, sexual abuse in the third degree, sexual abuse in the second
32 degree as set forth in subdivision one of section 130.60 of the penal
33 law, stalking in the first degree, stalking in the second degree, stalk-
34 ing in the third degree, stalking in the fourth degree, criminal
35 mischief, menacing in the second degree, menacing in the third degree,
36 reckless endangerment, strangulation in the first degree, strangulation
37 in the second degree, criminal obstruction of breathing or blood circu-
38 lation, assault in the second degree, assault in the third degree, an
39 attempted assault, identity theft in the first degree, identity theft in
40 the second degree, identity theft in the third degree, grand larceny in
41 the fourth degree, grand larceny in the third degree, coercion in the
42 second degree or coercion in the third degree as set forth in subdivi-
43 sions one, two and three of section 135.60 of the penal law between
44 spouses or former spouses, or between parent and child or between
45 members of the same family or household except that if the respondent
46 would not be criminally responsible by reason of age pursuant to section
47 30.00 of the penal law, then the family court shall have exclusive
48 jurisdiction over such proceeding. Notwithstanding a complainant's
49 election to proceed in family court, the criminal court shall not be
50 divested of jurisdiction to hear a family offense proceeding pursuant to
51 this section. For purposes of this section, "disorderly conduct"
52 includes disorderly conduct not in a public place. For purposes of this
53 section, "members of the same family or household" with respect to a
54 proceeding in the criminal courts shall mean the following:
A. 2056--B 3
1 § 3. The opening paragraph of subdivision 1 of section 812 of the
2 family court act, as amended by section 5 of part NN of chapter 55 of
3 the laws of 2018, is amended to read as follows:
4 The family court and the criminal courts shall have concurrent juris-
5 diction over any proceeding concerning acts which would constitute
6 disorderly conduct, unlawful dissemination or publication of an intimate
7 image, harassment in the first degree, harassment in the second degree,
8 aggravated harassment in the second degree, sexual misconduct, forcible
9 touching, sexual abuse in the third degree, sexual abuse in the second
10 degree as set forth in subdivision one of section 130.60 of the penal
11 law, stalking in the first degree, stalking in the second degree, stalk-
12 ing in the third degree, stalking in the fourth degree, criminal
13 mischief, menacing in the second degree, menacing in the third degree,
14 reckless endangerment, criminal obstruction of breathing or blood circu-
15 lation, strangulation in the second degree, strangulation in the first
16 degree, assault in the second degree, assault in the third degree, an
17 attempted assault, identity theft in the first degree, identity theft in
18 the second degree, identity theft in the third degree, grand larceny in
19 the fourth degree, grand larceny in the third degree, coercion in the
20 second degree or coercion in the third degree as set forth in subdivi-
21 sions one, two and three of section 135.60 of the penal law between
22 spouses or former spouses, or between parent and child or between
23 members of the same family or household except that if the respondent
24 would not be criminally responsible by reason of age pursuant to section
25 30.00 of the penal law, then the family court shall have exclusive
26 jurisdiction over such proceeding. Notwithstanding a complainant's
27 election to proceed in family court, the criminal court shall not be
28 divested of jurisdiction to hear a family offense proceeding pursuant to
29 this section. In any proceeding pursuant to this article, a court shall
30 not deny an order of protection, or dismiss a petition, solely on the
31 basis that the acts or events alleged are not relatively contemporaneous
32 with the date of the petition, the conclusion of the fact-finding or the
33 conclusion of the dispositional hearing. For purposes of this article,
34 "disorderly conduct" includes disorderly conduct not in a public place.
35 For purposes of this article, "members of the same family or household"
36 shall mean the following:
37 § 4. The civil rights law is amended by adding a new section 52-b to
38 read as follows:
39 § 52-b. Private right of action for unlawful dissemination or publica-
40 tion of an intimate image. 1. Any person depicted in a still or video
41 image, regardless of whether or not the original still or video image
42 was consensually obtained, shall have a cause of action against an indi-
43 vidual who, for the purpose of harassing, annoying or alarming such
44 person, disseminated or published, or threatened to disseminate or
45 publish, such still or video image, where such image:
46 a. was taken when such person had a reasonable expectation of privacy;
47 and
48 b. depicts (i) an unclothed or exposed intimate part of such person;
49 or (ii) such person engaging in sexual conduct, as defined in subdivi-
50 sion ten of section 130.00 of the penal law, with another person; and
51 c. was disseminated or published, or threatened to be disseminated or
52 published, without the consent of such person.
53 2. In any action commenced pursuant to subdivision one of this
54 section, the finder of fact, in its discretion, may award injunctive
55 relief, punitive damages, compensatory damages and reasonable court
56 costs and attorney's fees.
A. 2056--B 4
1 3. This section shall not apply to the following:
2 a. the reporting of unlawful conduct;
3 b. dissemination or publication of an intimate still or video image
4 made during lawful and common practices of law enforcement, legal
5 proceedings or medical treatment;
6 c. images involving voluntary exposure in a public or commercial
7 setting;
8 d. dissemination or publication of an intimate still or video image
9 made for a legitimate public purpose; or
10 e. providers of an interactive computer service for images provided by
11 another person. For purposes of this paragraph, "interactive computer
12 service" shall mean any information service, system or access software
13 provider that enables computer access by multiple users to that computer
14 server, including specifically, a service that provides access to the
15 internet and such systems operated or services offered by libraries or
16 educational institutions.
17 4. Any person depicted in a still or video image that depicts an
18 unclothed or exposed intimate part of such person, or such person engag-
19 ing in sexual conduct as defined in subdivision ten of section 130.00 of
20 the penal law with another person, which is disseminated or published
21 without the consent of such person and where such person had a reason-
22 able expectation of privacy, may maintain an action or special proceed-
23 ing for a court order to require any website that is subject to personal
24 jurisdiction under subdivision five of this section to permanently
25 remove such still or video image; any such court order granted pursuant
26 to this subdivision may direct removal only as to images that are
27 reasonably within such website's control.
28 5. a. Any website that hosts or transmits a still or video image,
29 viewable in this state, taken under circumstances where the person
30 depicted had a reasonable expectation of privacy, which depicts:
31 (i) an unclothed or exposed intimate part, as defined in section
32 245.15 of the penal law, of a resident of this state; or
33 (ii) a resident of this state engaging in sexual conduct as defined in
34 subdivision ten of section 130.00 of the penal law with another person;
35 and
36 b. Such still or video image is hosted or transmitted without the
37 consent of such resident of this state, shall be subject to personal
38 jurisdiction in a civil action in this state to the maximum extent
39 permitted under the United States constitution and federal law.
40 6. A cause of action or special proceeding under this section shall be
41 commenced the later of either:
42 a. three years after the dissemination or publication of an image; or
43 b. one year from the date a person discovers, or reasonably should
44 have discovered, the dissemination or publication of such image.
45 7. Nothing herein shall be read to require a prior criminal complaint,
46 prosecution or conviction to establish the elements of the cause of
47 action provided for by this section.
48 8. The provisions of this section are in addition to, but shall not
49 supersede, any other rights or remedies available in law or equity.
50 9. If any provision of this section or its application to any person
51 or circumstance is held invalid, the invalidity shall not affect other
52 provisions or applications of this section which can be given effect
53 without the invalid provision or application, and to this end the
54 provisions of this section are severable.
55 § 5. This act shall take effect on the sixtieth day after it shall
56 have become a law.
