Prohibits the use of intoxication of the victim as a defense in sex crimes; creates an affirmative defense where the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such lack of consent.
STATE OF NEW YORK
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452--A
Cal. No. 100
2021-2022 Regular Sessions
IN SENATE(Prefiled)
January 6, 2021
___________
Introduced by Sens. BIAGGI, BROUK, COMRIE, COONEY, GOUNARDES, HARCKHAM,
HINCHEY, HOYLMAN, JACKSON, KAVANAGH, LIU, MANNION, MAY, MYRIE, PARKER,
REICHLIN-MELNICK, RIVERA, SALAZAR, SEPULVEDA, SERRANO, SKOUFIS -- read
twice and ordered printed, and when printed to be committed to the
Committee on Codes -- reported favorably from said committee, ordered
to first and second report, ordered to a third reading, amended and
ordered reprinted, retaining its place in the order of third reading
AN ACT to amend the penal law, in relation to prohibiting the use of the
intoxication of a victim as a defense to a criminal charge for sex
crimes and creating an affirmative defense for such criminal charges
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (d) of subdivision 2 of section 130.05 of the
2 penal law, as amended by chapter 40 of the laws of 2004, is amended and
3 a new paragraph (e) is added to read as follows:
4 (d) Where the offense charged is sexual misconduct as defined in
5 subdivisions one and two of section 130.20, rape in the third degree as
6 defined in subdivision three of section 130.25, or criminal sexual act
7 in the third degree as defined in subdivision three of section 130.40,
8 in addition to forcible compulsion, circumstances under which, at the
9 time of the act of intercourse, oral sexual conduct or anal sexual
10 conduct, the victim clearly expressed that he or she did not consent to
11 engage in such act, and a reasonable person in the actor's situation
12 would have understood such person's words and acts as an expression of
13 lack of consent to such act under all the circumstances[.]; or
14 (e) Where the offense charged is sexual misconduct as defined in
15 subdivisions one and two of section 130.20, rape in the third degree as
16 defined in subdivision three of section 130.25, or criminal sexual act
17 in the third degree as defined in subdivision three of section 130.40,
18 in addition to forcible compulsion, circumstances under which, at the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02954-04-1
S. 452--A 2
1 time of the act of intercourse, oral sexual conduct or anal sexual
2 conduct, the victim is under the influence of any drug, intoxicant, or
3 other substance to a degree which renders such person temporarily inca-
4 pable of appraising or controlling his or her conduct and such condi-
5 tion is known or reasonably should be known to a person in the actor's
6 situation.
7 § 2. Section 130.10 of the penal law is amended by adding a new subdi-
8 vision 5 to read as follows:
9 5. In any prosecution for the crime of sexual misconduct as defined in
10 subdivisions one and two of section 130.20, rape in the third degree as
11 defined in subdivision three of section 130.25, or criminal sexual act
12 in the third degree as defined in subdivision three of section 130.40 in
13 which lack of consent is based on the circumstances set forth in para-
14 graph (e) of subdivision three of section 130.05 of this article, it
15 shall be an affirmative defense that the defendant, at the time he or
16 she engaged in the conduct constituting the offense, did not know of the
17 facts or conditions responsible for such lack of consent.
18 § 3. This act shall take effect immediately.
