STATE OF NEW YORK
________________________________________________________________________
409
2017-2018 Regular Sessions
IN SENATE(Prefiled)
January 4, 2017
___________
Introduced by Sen. ROBACH -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to elder abuse through social
media
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 260.40 to
2 read as follows:
3 § 260.40 Unlawful posting of a vulnerable elderly person on social
4 media.
5 A person is guilty of unlawful posting of a vulnerable elderly person
6 on social media when, being a caregiver while performing their duty of
7 care for a vulnerable elderly person, he or she posts an image or video
8 of such person on social media including, but not limited to Facebook,
9 YouTube, Twitter, Instagram, Snapchat, Tumblr, Flickr and Vine, without
10 such person's consent.
11 1. The following definitions are applicable to this section:
12 (a) "Forcible compulsion" means to compel by either:
13 (i) use of physical force; or
14 (ii) a threat, express or implied, which places a person in fear of
15 immediate death or physical injury to himself, herself or another
16 person, or in fear that he, she or another person will immediately be
17 kidnapped.
18 (b) "Physical helplessness" means that a person is unconscious or for
19 any other reason is physically unable to communicate unwillingness to an
20 act.
21 (c) "Mental incapacity" means an individual does not comprehend the
22 nature and consequences of what he or she consents to.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03048-01-7
S. 409 2
1 (d) "Mental disability" means that a person suffers from a mental
2 disease or defect which renders him or her incapable of informed
3 consent.
4 (e) "Caregiver" means a person who (i) assumes responsibility for the
5 care of a vulnerable elderly person pursuant to a court order; (ii)
6 receives monetary or other valuable consideration for providing care for
7 a vulnerable elderly person; (iii) is identified as a caregiver by a
8 patient under the public health law who provides after-care assistance
9 to a patient living in his or her residence including, but not limited
10 to, a relative, partner, friend or neighbor who has a significant
11 relationship with the patient; or (iv) is an informal caregiver such as
12 a family member, friend, neighbor, or other natural person who normally
13 provides the daily care or supervision of a vulnerable elderly person
14 who may, but need not reside in the same household as the vulnerable
15 elderly person.
16 (f) "Vulnerable elderly person" means a person sixty years of age or
17 older who is suffering from a disease or infirmity associated with
18 advanced age and manifested by demonstrable physical, mental or
19 emotional dysfunction to the extent that the person is incapable of
20 adequately providing for his or her own health or personal care.
21 2. Lack of consent under this section results from:
22 (a) forcible compulsion;
23 (b) physical helplessness;
24 (c) mental incapacity;
25 (d) mental disability; or
26 (e) any circumstance in which the victim does not expressly or
27 impliedly acquiesce in the actor's conduct.
28 Unlawful posting of a vulnerable elderly person on social media is a
29 class A misdemeanor.
30 § 2. This act shall take effect on the first of November next succeed-
31 ing the date on which it shall have become a law.
