Rpld §130.35 sub 3, §130.50 sub 3, amd Pen L, generally; amd §168-a, Cor L
Enacts "Kimberly's Law" establishing certain sex offenses, including sex offenses against children; relates to criminal sentencing for defendants convicted of certain sex offenses; repeals certain laws relating to sex offenses against children.
STATE OF NEW YORK
________________________________________________________________________
6491
2023-2024 Regular Sessions
IN ASSEMBLY
April 12, 2023
___________
Introduced by M. of A. BUTTENSCHON -- read once and referred to the
Committee on Codes
AN ACT to amend the penal law and the correction law, in relation to
establishing certain sex offenses and criminal sentencing for defend-
ants convicted of certain sex offenses; to repeal subdivision 3 of
section 130.35 of the penal law, relating to rape of a child less than
11 years old; and to repeal subdivision 3 of section 130.50 of the
penal law, relating to a criminal sexual act with a child less than 11
years old
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 "Kimberly's law".
3 § 2. The penal law is amended by adding a new section 130.36 to read
4 as follows:
5 § 130.36 Aggravated rape.
6 A person is guilty of aggravated rape when he or she engages in sexual
7 intercourse with another person:
8 1. With intent to cause serious physical injury; and
9 2. Such person is armed with a deadly weapon or dangerous instrument,
10 or any object used in a manner to lead the victim to reasonably believe
11 such object to be a deadly weapon or dangerous instrument; and
12 (a) By forcible compulsion; or
13 (b) Such victim is incapable of consent by reason of being physically
14 helpless; or
15 (c) Such victim is less than eleven years old; or
16 (d) Such victim is less than thirteen years old and the actor is eigh-
17 teen years old or more.
18 Aggravated rape is a class A felony.
19 § 3. Section 70.80 of the penal law is amended by adding a new subdi-
20 vision 10 to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10272-01-3
A. 6491 2
1 10. Sentence of imprisonment for an offender of certain felony sex
2 offenses. An offender convicted of rape in the first degree pursuant to
3 section 130.35 of this chapter or an offender convicted of aggravated
4 rape pursuant to section 130.36 of this chapter shall not be released
5 pursuant to section 70.40 of this article until such minimum sentence
6 shall have been served.
7 § 4. Subparagraph (i) of paragraph (a) of subdivision 3 of section
8 70.00 of the penal law, as amended by chapter 107 of the laws of 2006,
9 is amended to read as follows:
10 (i) For a class A-I felony, such minimum period shall not be less than
11 fifteen years nor more than twenty-five years; provided, however, that
12 (A) where a sentence, other than a sentence of death or life imprison-
13 ment without parole, is imposed upon a defendant convicted of murder in
14 the first degree as defined in section 125.27 of this chapter such mini-
15 mum period shall be not less than twenty years nor more than twenty-five
16 years, and, (B) where a sentence is imposed upon a defendant convicted
17 of murder in the second degree as defined in subdivision five of section
18 125.25 of this chapter or convicted of aggravated murder as defined in
19 section 125.26 of this chapter, the sentence shall be life imprisonment
20 without parole, and, (C) where a sentence is imposed upon a defendant
21 convicted of attempted murder in the first degree as defined in article
22 one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of
23 paragraph (a) of subdivision one and paragraph (b) of subdivision one of
24 section 125.27 of this chapter or attempted aggravated murder as defined
25 in article one hundred ten of this chapter and section 125.26 of this
26 chapter such minimum period shall be not less than twenty years nor more
27 than forty years, and, (D) where a sentence is imposed upon a defendant
28 convicted of rape of a child as defined in section 130.37, criminal
29 sexual act against a child as defined in section 130.51, aggravated
30 sexual abuse of a child as defined in section 130.71 or aggravated
31 course of sexual conduct against a child as defined in section 130.81 of
32 this chapter such minimum period shall be twenty years.
33 § 5. Subdivision 5 of section 125.25 of the penal law, as amended by
34 chapter 320 of the laws of 2006, is amended to read as follows:
35 5. Being eighteen years old or more, while in the course of committing
36 rape in the first, second or third degree, criminal sexual act in the
37 first, second or third degree, sexual abuse in the first degree, rape of
38 a child, criminal sexual act against a child, aggravated sexual abuse of
39 a child, aggravated course of sexual conduct against a child, aggravated
40 sexual abuse in the first, second, third or fourth degree, or incest in
41 the first, second or third degree, against a person less than fourteen
42 years old, he or she intentionally causes the death of such person.
43 § 6. Subdivision 3 of section 130.35 of the penal law is REPEALED.
44 § 7. The penal law is amended by adding a new section 130.37 to read
45 as follows:
46 § 130.37 Rape of a child.
47 A person is guilty of rape of a child when:
48 1. he or she engages in sexual intercourse with another person who is
49 less than twelve years old; or
50 2. being twenty-one years old or more, he or she engages in sexual
51 intercourse with another person less than fourteen years old.
52 Rape of a child is a class A-I felony.
53 § 8. Subdivision 3 of section 130.50 of the penal law is REPEALED.
54 § 9. The penal law is amended by adding a new section 130.51 to read
55 as follows:
56 § 130.51 Criminal sexual act against a child.
A. 6491 3
1 A person is guilty of criminal sexual act against a child when:
2 1. he or she engages in oral sexual conduct or anal sexual conduct
3 with another person who is less than twelve years old; or
4 2. being twenty-one years old or more, he or she engages in oral sexu-
5 al conduct or anal sexual conduct with another person who is less than
6 fourteen years old.
7 Criminal sexual act against a child is a class A-I felony.
8 § 10. Subdivision 1 of section 130.70 of the penal law, as amended by
9 chapter 450 of the laws of 1988, the opening paragraph as amended by
10 chapter 485 of the laws of 2009, is amended to read as follows:
11 1. A person is guilty of aggravated sexual abuse in the first degree
12 when he or she inserts a foreign object in the vagina, urethra, penis,
13 rectum or anus of another person causing physical injury to such person:
14 (a) By forcible compulsion; or
15 (b) When the other person is incapable of consent by reason of being
16 physically helpless[; or
17 (c) When the other person is less than eleven years old].
18 § 11. The penal law is amended by adding a new section 130.71 to read
19 as follows:
20 § 130.71 Aggravated sexual abuse of a child.
21 1. A person is guilty of aggravated sexual abuse of a child when:
22 (a) he or she inserts a foreign object in the vagina, urethra, penis,
23 rectum or anus of another person causing physical injury to such person
24 when such other person is less than twelve years old; or
25 (b) being twenty-one years old or more, he or she inserts a foreign
26 object in the vagina, urethra, penis, rectum or anus of another person
27 causing physical injury to such person when such other person is less
28 than fourteen years old.
29 2. Conduct performed for a valid medical purpose does not violate the
30 provisions of this section.
31 Aggravated sexual abuse of a child is a class A-I felony.
32 § 12. Subdivision 1 of section 130.75 of the penal law, as amended by
33 chapter 1 of the laws of 2000, paragraphs (a) and (b) as amended by
34 chapter 264 of the laws of 2003, is amended to read as follows:
35 1. A person is guilty of course of sexual conduct against a child in
36 the first degree when, over a period of time not less than three months
37 in duration[:
38 (a) he or she engages in two or more acts of sexual conduct, which
39 includes at least one act of sexual intercourse, oral sexual conduct,
40 anal sexual conduct or aggravated sexual contact, with a child less than
41 eleven years old; or
42 (b)], he or she, being eighteen years old or more, engages in two or
43 more acts of sexual conduct, which include at least one act of sexual
44 intercourse, oral sexual conduct, anal sexual conduct or aggravated
45 sexual contact, with a child less than thirteen years old.
46 § 13. The penal law is amended by adding a new section 130.81 to read
47 as follows:
48 § 130.81 Aggravated course of sexual conduct against a child.
49 1. A person is guilty of aggravated course of sexual conduct against a
50 child when, over a period of time not less than three months in dura-
51 tion:
52 (a) he or she engages in two or more acts of sexual conduct, which
53 includes at least one act of sexual intercourse, oral sexual conduct,
54 anal sexual conduct or aggravated sexual contact, with a child less than
55 twelve years old; or
A. 6491 4
1 (b) he or she, being twenty-one years old or more, engages in two or
2 more acts of sexual conduct, which includes at least one act of sexual
3 intercourse, oral sexual conduct, anal sexual conduct or aggravated
4 sexual contact, with a child less than fourteen years old.
5 2. A person may not be subsequently prosecuted for any other sexual
6 offense involving the same victim unless the other charged offense
7 occurred outside the time period charged under this section.
8 Aggravated course of sexual conduct against a child is a class A-I
9 felony.
10 § 14. Subparagraph (i) of paragraph (a) of subdivision 3 of section
11 168-a of the correction law, as amended by chapter 107 of the laws of
12 2006, is amended to read as follows:
13 (i) a conviction of or a conviction for an attempt to commit any of
14 the provisions of sections 130.35, 130.36, 130.37, 130.50, 130.51,
15 130.65, 130.66, 130.67, 130.70, 130.71, 130.75, 130.80, 130.81, 130.95
16 and 130.96 of the penal law, or
17 § 15. This act shall take effect on the first of November next
18 succeeding the date upon which it shall have become a law.
