Prohibits disclosure of immigration status for victims of domestic violence; adds enhanced penalties for coercive threats to expose immigration status of victims and witnesses of domestic violence.
STATE OF NEW YORK
________________________________________________________________________
10286
IN ASSEMBLY
May 18, 2012
___________
Introduced by M. of A. MENG -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law, the social services law, the
family court act, the penal law and the executive law, in relation to
maintaining the confidentiality of immigration status for victims of
domestic violence
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 "The New York State Violence Against Women Act".
3 § 2. Subparagraph (ii) of paragraph (b) and paragraph (c) of subdivi-
4 sion 4 of section 140.10 of the criminal procedure law, subparagraph
5 (ii) of paragraph (b) as amended by chapter 107 of the laws of 2004 and
6 paragraph (c) as amended by chapter 4 of the laws of 1997, are amended
7 to read as follows:
8 (ii) The respondent or defendant commits a family offense as defined
9 in subdivision one of section eight hundred twelve of the family court
10 act or subdivision one of section 530.11 of this chapter in violation of
11 such order of protection or special order of conditions. An officer
12 making an arrest under this subparagraph shall not inquire as to the
13 immigration status of the person for whom the order protects. If such
14 status is ascertained and would result in adverse immigration conse-
15 quences to such person, the officer shall not report such information to
16 any local, state or federal law enforcement agency.
17 (c) a misdemeanor constituting a family offense, as described in
18 subdivision one of section 530.11 of this chapter and section eight
19 hundred twelve of the family court act, has been committed by such
20 person against such family or household member, unless the victim
21 requests otherwise. The officer shall neither inquire as to whether the
22 victim seeks an arrest of such person nor threaten the arrest of any
23 person for the purpose of discouraging requests for police intervention.
24 The officer shall also not inquire as to the immigration status of the
25 victim; nor shall such officer, if informed of such status, report such
26 information to any local, state or federal law enforcement agency.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15779-02-2
A. 10286 2
1 Notwithstanding the foregoing, when an officer has reasonable cause to
2 believe that more than one family or household member has committed such
3 a misdemeanor, the officer is not required to arrest each such person.
4 In such circumstances, the officer shall attempt to identify and arrest
5 the primary physical aggressor after considering: (i) the comparative
6 extent of any injuries inflicted by and between the parties; (ii) wheth-
7 er any such person is threatening or has threatened future harm against
8 another party or another family or household member; (iii) whether any
9 such person has a prior history of domestic violence that the officer
10 can reasonably ascertain; and (iv) whether any such person acted defen-
11 sively to protect himself or herself from injury. The officer shall
12 evaluate each complaint separately to determine who is the primary phys-
13 ical aggressor and shall not base the decision to arrest or not to
14 arrest on the willingness of a person to testify or otherwise partic-
15 ipate in a judicial proceeding.
16 § 3. Subdivision 2 of section 530.11 of the criminal procedure law is
17 amended by adding a new paragraph (j) to read as follows:
18 (j) That any information regarding the petitioner's immigration status
19 shall be kept confidential and will not be referred or reported to any
20 local, state or federal law enforcement agency.
21 § 4. The criminal procedure law is amended by adding a new section
22 2.25 to read as follows:
23 § 2.25 Prohibitions on law enforcement agencies and peace officers.
24 A law enforcement agency of the state or a political subdivision of
25 the state or a peace officer may not inquire as to the nationality or
26 immigration status of a victim of or witness to domestic violence, as
27 such terms are defined by section four hundred fifty-nine-a of the
28 social services law, except as necessary to investigate the offense, nor
29 shall such officer report or refer such status to any local, state or
30 federal law enforcement agency.
31 § 5. Section 459-h of the social services law is amended by adding a
32 new subdivision 3 to read as follows:
33 3. All information related to a victim of domestic violence's immi-
34 gration status shall be kept confidential and shall not be disclosed for
35 any purpose, including such investigations that may be conducted by any
36 local, state or federal law enforcement agency relating to said individ-
37 ual's immigration status.
38 § 6. Subdivision 2 of section 812 of the family court act is amended
39 by adding a new paragraph (h) to read as follows:
40 (h) That any information regarding the petitioner's immigration status
41 shall be kept confidential and will not be referred or reported to any
42 local, state or federal law enforcement agency.
43 § 7. The penal law is amended by adding a new section 70.11 to read as
44 follows:
45 § 70.11 Sentences of imprisonment for domestic violence; aggravating
46 factors.
47 In matters divested to a criminal court under section eight hundred
48 twelve of the family court act, or where such court exercises concurrent
49 jurisdiction under such section and in matters referred to a criminal
50 court under article six-A of the social services law, where the respond-
51 ent threatens to expose a witness or a victim's immigration status in
52 order to coerce such victim or witness or conceal such offense, shall
53 result in the following enhancement of such sentence:
54 (a) For offenses committed under section 120.00 of this chapter, the
55 sentence shall reflect a class E felony;
A. 10286 3
1 (b) For offenses committed under section 120.05 of this chapter, the
2 sentence shall reflect a class C felony;
3 (c) For offenses committed under section 120.10 of this chapter, the
4 sentence shall reflect a class A felony;
5 (d) For offenses committed under section 120.13 of this chapter, the
6 sentence shall reflect a class D felony;
7 (e) For offenses committed under section 120.14 of this chapter, the
8 sentence shall reflect a class E felony;
9 (f) For offenses committed under section 120.15 of this chapter, the
10 sentence shall reflect a class A misdemeanor;
11 (g) For offenses committed under section 120.20 of this chapter, the
12 sentence shall reflect a class E felony;
13 (h) For offenses committed under section 120.25 of this chapter, the
14 sentence shall reflect a class C felony;
15 (i) For offenses committed under section 120.45 of this chapter, the
16 sentence shall reflect a class A misdemeanor;
17 (j) For offenses committed under section 120.50 of this chapter, the
18 sentence shall reflect a class E felony;
19 (k) For offenses committed under section 120.55 of this chapter, the
20 sentence shall reflect a class D felony;
21 (l) For offenses committed under section 120.60 of this chapter, the
22 sentence shall reflect a class C felony;
23 (m) For offenses committed under section 121.11 of this chapter, the
24 sentence shall reflect a class E felony;
25 (n) For offenses committed under section 121.12 of this chapter, the
26 sentence shall reflect a class C felony;
27 (o) For offenses committed under section 121.13 of this chapter, the
28 sentence shall reflect a class B felony;
29 (p) For offenses committed under section 130.25 of this chapter, the
30 sentence shall reflect a class D felony;
31 (q) For offenses committed under section 130.30 of this chapter, the
32 sentence shall reflect a class C felony;
33 (r) For offenses committed under section 130.35 of this chapter, the
34 sentence shall reflect a class A felony;
35 (s) For offenses committed under section 130.40 of this chapter, the
36 sentence shall reflect a class D felony;
37 (t) For offenses committed under section 130.45 of this chapter, the
38 sentence shall reflect a class C felony;
39 (u) For offenses committed under section 130.50 of this chapter, the
40 sentence shall reflect a class A felony;
41 (v) For offenses committed under section 130.55 of this chapter, the
42 sentence shall reflect a class A misdemeanor;
43 (w) For offenses committed under section 130.60 of this chapter, the
44 sentence shall reflect a class E felony;
45 (x) For offenses committed under section 130.65 of this chapter, the
46 sentence shall reflect a class C felony;
47 (y) For offenses committed under section 130.65-a of this chapter, the
48 sentence shall reflect a class D felony;
49 (z) For offenses committed under section 130.66 of this chapter, the
50 sentence shall reflect a class C felony;
51 (aa) For offenses committed under section 130.67 of this chapter, the
52 sentence shall reflect a class B felony;
53 (bb) For offenses committed under section 130.70 of this chapter, the
54 sentence shall reflect a class A felony;
55 (cc) For offenses committed under section 135.05 of this chapter, the
56 sentence shall reflect a class E felony;
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1 (dd) For offenses committed under section 135.10 of this chapter, the
2 sentence shall reflect a class D felony;
3 (ee) For offenses committed under section 135.20 of this chapter, the
4 sentence shall reflect a class A felony;
5 (ff) For offenses committed under section 135.45 of this chapter, the
6 sentence shall reflect a class E felony;
7 (gg) For offenses committed under section 135.50 of this chapter, the
8 sentence shall reflect a class D felony.
9 § 8. The executive law is amended by adding a new section 844 to read
10 as follows:
11 § 844. Inquiry into immigration status prohibited in certain circum-
12 stances. In conducting an investigatory activity, including an inter-
13 view, into any incident of domestic violence, as such term is defined in
14 article six-A of the social services law, a law enforcement agency or a
15 law enforcement official shall not inquire about or seek proof of a
16 person's immigration status, nor shall such officer, if informed of such
17 status, refer or report any findings regarding such status to any local,
18 state or federal law enforcement agency. Any information obtained in
19 such investigatory activity regarding a person's immigration status
20 shall be kept confidential.
21 § 9. This act shall take effect immediately, provided that the amend-
22 ments to subdivision 4 of section 140.10 of the criminal procedure law
23 made by section two of this act shall not affect the repeal of such
24 subdivision and shall be deemed repealed therewith.
