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A00281 Summary:

BILL NOA00281
 
SAME ASNo Same As
 
SPONSORWalker (MS)
 
COSPNSRBronson, Cruz, Epstein, Glick, Gonzalez-Rojas, Lavine, Reyes
 
MLTSPNSR
 
Add §4519-b, CPLR; amd §60.47, CP L; amd §§841 & 837, Exec L; add §§49 & 83-o, Leg L
 
Relates to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices.
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A00281 Actions:

BILL NOA00281
 
01/04/2023referred to codes
01/03/2024referred to codes
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A00281 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A281
 
SPONSOR: Walker (MS)
  TITLE OF BILL: An act to amend the civil practice law and rules, the criminal procedure law, the executive law, and the legislative law, in relation to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices   PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to codify the commitment to public health enshrined in the New York State Constitution, by prohibiting the use in criminal, civil or administrative proceedings of the fact of possession or presence of condoms and other reproductive and sexual health devices as evidence of prostitution or trafficking-related offenses, and to assess and reduce the disparate impacts of this practice upon members of vulnerable populations, such as survivors of trafficking and people who are or are profiled as engaging in the sex trades.   SUMMARY OF PROVISIONS: Section 1 states that this act shall be known as the "End Criminaliza- tion of Condoms. Act". Section 2 states certain legislative findings. Section 3 adds a new section 4519-a to the civil practice law and rules to prohibit introduction of the fact of possession or presence of condoms and other reproductive and sexual health devices as evidence of prostitution, patronizing a prostitute, promoting prostitution, permit- ting prostitution, maintaining a premises for prostitution, lewdness or assignation, or maintaining a bawdy house, in any trial, hearing or proceeding pursuant to section 12 and article 18 of the multiple dwell- ing law (liens on premises used for unlawful purposes), sections 12-a and title 2 of article 23 of the public health law (hearings and equita- ble proceedings regarding premises used for prostitution), section 231 of the real property law (voiding of lease on premises used for unlawful purposes), or sections 711 and 715 of the real property actions and proceedings law (summary eviction proceedings). Section 4 adds a new section 60.47 to the criminal procedure law to prohibit introduction of the fact of possession or presence of condoms and other reproductive and sexual health devices as evidence of prosti- tution or traffic-related activity in any trial, hearing or proceeding pursuant to article 230 or section 240.37 of the penal law (prostitution and trafficking-related offenses), or section 6512 of the education law (unlicensed practice of a profession), or by any related local or munic- ipal law or regulation, for the purpose of establishing probable cause for an arrest or proving any person's commission or attempted commission of such offense. Section 5 amends section 260.10(1) of the criminal procedure law to remove subdivision two of section 240.37 of the penal law (loitering for the purpose of engaging in a prostitution offense) to provide that this violation .shall no longer be an offense requiring fingerprinting. Section 6 amends section 160.55 of the criminal procedure law to remove subdivision two of section 240.37 of the penal law (loitering for the purpose of engaging in a prostitution offense) to provide that sealing of convictions appropriate to violation-level offenses shall be avail- able for this violation. It also deletes references to former section 240.35 of the penal law, as repealed by chapter 232 of the laws of 2010. Section 7 adds a new subdivision 7-b to section 841 of the executive law to authorize the Commissioner of Criminal Justice Services to take such steps as necessary to ensure that police and peace officers receive appropriate instruction regarding the evidentiary prohibition set forth in section 60.47 of the criminal prodedure law. Section 8 adds a new section 49 to the legislative law to create guide- lines for the implementation and use of health and human rights impact statements to accompany certain legislation. Section 9 adds a new section 83-n to the legislative law to establish Section 10 amends paragraph f of subdivision 4 of section 837 of the executive law to require that the Division of Criminal justice Services conduct research and analysis necessary to complete health and human rights impact statements and present an annual report containing statis- tics and other information relevant to such statements. Section 11 sets forth a severability provision. Section 12 establishes the effective date.   JUSTIFICATION: Currently, for purposes of prosecuting certain criminal, civil and administrative offenses, reproductive and sexual health tools, and Particularly condoms and lubricants, are being confiscated and destroyed by law enforcement officers and introduced by prosecution as evidence in trials, hearings, and proceedings. This practice deters those most vulnerable to the HIV epidemic, other sexually transmitted infections, and unwanted pregnancies from using condoms by sending the message that possession or presence of condoms provides a legal basis for being stopped, questioned, and arrested by-police. This message undermines public health efforts to promote safer sex practices, and creates a perverse incentive for exploiters to deny access to critical reproduc- tive and sexual health tools to victims of trafficking, which are essen- tial to enabling them to protect themselves from unwanted pregnancies, HIV and other sexually transmitted infections. Promoting and protecting health, and respecting and fulfilling human rights are necessarily linked, and health-oriented and rights-based law enforcement efforts are central to the effective provision of ,government services for the bene- fit of the people of the State. By adopting a comprehensive ban on using the possession or presence of condoms as evidence in all prostitution related cases, this bill will help to encourage, instead of discourage, safer sex practices. Article 17, section 3 of the New York State Consti- tution reguires.that the legislature protect and promote the health of the inhabitants of this state as a matter of public concern. It is pursuant to this principle that the New York City Department of Health and Mental Hygiene spends upward to $30 million annually on distributing more than 38 million condoms per year at approximately 3,500 locations throughout New York City. However, with one hand the government distributes these condoms and with the other it destroys, confiscates and introduces them as evidence of criminal offenses. The same New York City branded condoms distributed by the City are thrown in City trash- cans, or listed as arrest evidence on police property vouchers and on supporting depositions filed in criminal cases as evidence of intent.to engage in prostitution in the prosecution of the o ffenses covered by this bill. Governor Andrew M. Cuomo recently announced a bold commitment to end the AIDS epidemic in New York by 2028. The first-ever statewide initiative to reduce new transmissions to 750 or fewer per year, improve access to care for people living with HIV/AIDS (PLWHA), and work to ensure that PLWHA have undetectable viral loads at a rate that outpaces new infections. Under current law, the very same prevention tools that are centerpieces, of this plan - condoms - may be lawfully confiscated and introduced as evidence in a criminal prosecution for a prostitution or trafficking-related offense. New York simply cannot end AIDS by 2020 without lifting barriers to access and use of these critical sexual health tools. The practice of using condoms as evidence in prostitution cases has come under criticism across the country. In 2012, Congresswom- an Kathleen Rice as former Nassau County District Attorney implemented a comprehensive ban on the use of condoms as evidence in all prostitution and trafficking-related prosecutions in her jurisdiction. Congresswoman Rice concluded that any potential benefits of using condoms as evidence do not'outweigh the public health impact. She also noted that more seri- ous trafficking c ases are made out on witness and other evidence, and that "condom evidence was rarely of any value to a prosecution." Accord- ing to Rice, "If you need that condom so badly in the case against a trafficker, then you don't have a good case." Similarly, in 2013, former Brooklyn District Attorney, Charles Hynes wrote a scathing letter to then-NYC Police Commissioner Ray Kelly condemning the police depart- ment's practice of using condoms as evidence in prostitution cases.   PRIOR LEGISLATIVE HISTORY: 2015-2016:A7671 - Referred to Codes 2017-2018:A7061A - Referred to Codes 2019-2020:A5177 - Referred to Codes 2021-2022:A4273 - Referred to Codes   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: Take effect on the first of March next succeeding the date in which it shall have become a law.
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A00281 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           281
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                     January 4, 2023
                                       ___________
 
        Introduced by M. of A. WALKER -- Multi-Sponsored by -- M. of A. BRONSON,
          CRUZ,  EPSTEIN,  GLICK, GONZALEZ-ROJAS, LAVINE, REYES -- read once and
          referred to the Committee on Codes
 
        AN ACT to amend the civil practice law and rules, the criminal procedure
          law, the executive law, and the legislative law, in  relation  to  the
          use  in evidence of the fact of possession or presence on the premises
          of condoms and other sexual and reproductive health devices
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. This act shall be known and may be cited as the "End crimi-
     2  nalization of condoms act".
     3    § 2. Legislative findings. The legislature hereby finds that promoting
     4  and  protecting  health  and  respecting and fulfilling human rights are
     5  necessarily  linked,  and  that  health-oriented  and  rights-based  law
     6  enforcement efforts are central to the effective provision of government
     7  services for the benefit of the people of the State. Article 17, section
     8  3 of the New York constitution requires that the legislature protect and
     9  promote  the  health  of  the  inhabitants  of this state as a matter of
    10  public concern. Despite these provisions, for  purposes  of  prosecuting
    11  certain  criminal,  civil  and administrative offenses, reproductive and
    12  sexual health tools, including condoms, are currently  being  destroyed,
    13  confiscated,  or  used  as  evidence  by  law enforcement officers. This
    14  legislation is intended to strengthen the public health of all New York-
    15  ers, including the most vulnerable, while preserving the ability of  law
    16  enforcement  to  prosecute  other crimes such as felony sexual offenses.
    17  The purpose of this bill is to avoid the disparate impact of  the  prac-
    18  tice of citing condoms and other reproductive and sexual health tools as
    19  evidence  upon  survivors  of  trafficking  and  people  who  are or are
    20  profiled as being engaged in the sex trades.
    21    § 3. The civil practice law and rules  is  amended  by  adding  a  new
    22  section 4519-b to read as follows:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00997-01-3

        A. 281                              2
 
     1    § 4519-b. Possession of reproductive or sexual health devices; receipt
     2  into evidence.  1. The fact of possession of a condom or other reproduc-
     3  tive  or  sexual  health  device  may not be received in evidence in any
     4  trial, hearing or proceeding pursuant  to  subdivision  one  of  section
     5  twelve  and  article ten of the multiple dwelling law, sections twelve-a
     6  and twenty-three hundred twenty of the public health  law,  section  two
     7  hundred  thirty-one  of  the  real  property  law or subdivision five of
     8  section seven hundred eleven and section seven hundred  fifteen  of  the
     9  real  property  actions and proceedings law, or by any law, local law or
    10  ordinance of a political subdivision of this state, or by any word, rule
    11  or regulation of any governmental instrumentality authorized by  law  to
    12  adopt  the  same  as evidence of prostitution, patronizing a prostitute,
    13  promoting prostitution, permitting prostitution, maintaining a  premises
    14  for  prostitution,  lewdness  or assignation, maintaining a bawdy house,
    15  compelling prostitution, or sex trafficking.
    16    2. "Reproductive or sexual health device" shall include any contracep-
    17  tive or other tool used to prevent  unwanted  pregnancy  or  the  trans-
    18  mission of HIV or other sexually transmitted diseases, including but not
    19  limited  to  male  condoms,  female  condoms,  lubricants,  pre-exposure
    20  prophylaxis ("PrEP"), post-exposure prophylaxis ("PEP"), HIV anti-retro-
    21  viral medication, spermicide, hormonal methods, emergency contraception,
    22  diaphragm, cervical cap, or sponge.
    23    § 4. Section 60.47 of the criminal procedure law, as amended by  chap-
    24  ter 23 of the laws of 2021, is amended to read as follows:
    25  § 60.47 Possession  of  condoms  or  other reproductive or sexual health
    26             device; receipt into evidence.
    27    1. Evidence that a person was in possession of one or more condoms  or
    28  other  reproductive  or  sexual health device may not be admitted at any
    29  trial, hearing, or  other  proceeding  in  a  prosecution  for  [section
    30  230.00]  any  offense,  or  an attempt to commit any offense, defined in
    31  article two hundred thirty of  the  penal  law,  or  section  sixty-five
    32  hundred twelve of the  education  law,  or  any law, local  law or ordi-
    33  nance  of  a  political  subdivision of this state, or any word, rule or
    34  regulation of any governmental  instrumentality  authorized  by  law  to
    35  adopt  the  same,  for the purpose of establishing probable cause for an
    36  arrest or proving any person's commission  or  attempted  commission  of
    37  such  offense, as evidence of prostitution or trafficking-related activ-
    38  ity.
    39    2. "Reproductive or sexual health device" shall include any contracep-
    40  tive or other tool used to prevent  unwanted  pregnancy  or  the  trans-
    41  mission of HIV or other sexually transmitted diseases, including but not
    42  limited to male condoms, female condoms, lubricant, pre-exposure prophy-
    43  laxis  ("PrEP"),  post-exposure prophylaxis ("PEP"), HIV anti-retroviral
    44  medication,   spermicide,   hormonal  methods,  emergency contraception,
    45  diaphragm, cervical cap, or sponge.
    46    § 5. Section 841 of the executive law  is  amended  by  adding  a  new
    47  subdivision 7-c to read as follows:
    48    7-c.  Take  such  steps  as may be necessary to ensure that all police
    49  officers and peace officers certified pursuant to subdivision  three  of
    50  this  section  receive appropriate instruction regarding the evidentiary
    51  prohibition set forth in section 60.47 of the criminal procedure law and
    52  section forty-five hundred nineteen-b of  the  civil  practice  law  and
    53  rules  relating  to  the use of condoms and other reproductive or sexual
    54  health devices as evidence in certain trials, hearings  or  proceedings,
    55  or as a basis for probable cause for arrest, including that unauthorized

        A. 281                              3
 
     1  seizure  or  confiscation  of  condoms  and other reproductive or sexual
     2  health devices is a breach of public policy.
     3    § 6. The legislative law is amended by adding a new section 49 to read
     4  as follows:
     5    §  49.  Requirement  with respect to bills amending certain laws which
     6  affect health and human rights. Whenever a committee favorably reports a
     7  bill to amend article two hundred thirty of the penal law,  or,  at  the
     8  discretion  of  the voting majority of the committee, any bill which, if
     9  passed, would increase or decrease the number of arrestees  or  pretrial
    10  or  sentenced  population  of  correctional  facilities in this state, a
    11  majority of the committee members voting may request that a  health  and
    12  human  rights  impact  statement be prepared.   The legislature shall by
    13  concurrent resolution of the senate and assembly prescribe rules requir-
    14  ing health and human rights impact statements to accompany, on  a  sepa-
    15  rate  form,  bills  and  amendments  to bills after such bills have been
    16  reported from committee.   Health and  human  rights  impact  statements
    17  shall  be  prepared before the bill is considered for final passage. The
    18  statement shall indicate whether the bill would have a disparate  impact
    19  by   race,   ethnicity,   religion,  age,  gender,  gender  identity  or
    20  expression, sexual orientation, immigration status, disability, or hous-
    21  ing status composition of the arrestee and correctional  facility  popu-
    22  lation  and  an explanation of that impact. Any impact statement printed
    23  with or prepared for a bill is solely for the  purpose  of  information,
    24  summarization  and  explanation for members of the legislature and shall
    25  not be construed to represent the intent of the  legislature  or  either
    26  chamber  thereof  for  any purpose. Each impact statement shall bear the
    27  following disclaimer: "The following  health  and  human  rights  impact
    28  statement is prepared for the benefit of the members of the legislature,
    29  solely  for  purposes  of information, summarization and explanation and
    30  does not represent the intent of the legislature or either chamber ther-
    31  eof for any purpose."
    32    § 7. The legislative law is amended by adding a new  section  83-o  to
    33  read as follows:
    34    §  83-o.  Legislative  commission  on health and human rights.  1. The
    35  legislature hereby  finds  that  promoting  and  protecting  health  and
    36  respecting  and fulfilling human rights are necessarily linked, and that
    37  coordination between health and law enforcement efforts  is  central  to
    38  the  effective  provision  of government services for the benefit of the
    39  people of the state.
    40    2. A legislative commission on  health  and  human  rights  is  hereby
    41  established  to  examine,  evaluate  and make recommendations concerning
    42  rights-based approaches to health  and  law  enforcement  interventions.
    43  The  commission  shall  act  as  a  mechanism for ongoing and meaningful
    44  involvement of those who are or potentially could be  affected  by  this
    45  law, including, but not limited to, survivors of trafficking, people who
    46  are  or are profiled as being involved in the sex trades, communities of
    47  color, lesbian, gay, bisexual and  transgender  people,  and  people  in
    48  custodial  settings.  The commission shall provide monitoring and expert
    49  perspective to the legislature, promoting awareness of problems in  real
    50  time  as they emerge, increase cooperation and collaboration between the
    51  individuals and communities directly impacted and their legislators, and
    52  allow legislators to share responsibility for successes and failures  of
    53  these  initiatives. The commission shall make such recommendations as it
    54  may deem necessary as to regulations, policies, programs,  and  proposed
    55  legislation  to  provide an equitable system of providing for the public
    56  safety while also protecting public health, to encourage the most effec-

        A. 281                              4
 
     1  tive use of state and local resources, to preserve the fiscal  integrity
     2  of  both  state  and  local  government  health systems and otherwise to
     3  strengthen the fundamental human right to health.
     4    3.  The commission shall consist of ten representatives from organiza-
     5  tions that promote advocacy by and for  directly  impacted  communities.
     6  From  among the members so appointed, a chairperson and vice chairperson
     7  shall be designated by the joint  action  of  the  chairpersons  of  the
     8  senate  and  assembly  health committees. Any vacancy that occurs in the
     9  commission or in the chairmanship or vice chairmanship shall  be  filled
    10  in  the same manner in which the original appointment or designation was
    11  made.
    12    4. The commission in addition to the above mentioned powers shall have
    13  all the powers and privileges of a  legislative  committee  pursuant  to
    14  this chapter.
    15    5.  For  the  accomplishment  of  its purpose, the commission shall be
    16  authorized and empowered to undertake any  study,  inquiry,  survey,  or
    17  analysis  it  may deem relevant through its own personnel in cooperation
    18  with or by agreement with any other public or private agency.
    19    6. The commission may require and shall receive from  any  department,
    20  board,  bureau,  commission, authority, office, or other instrumentality
    21  of the state, and from any county, city, town or village of this  state,
    22  such  facilities, assistance, and data, as it deems necessary or desira-
    23  ble for proper execution of its powers and duties.
    24    7. The commission may hold public or private hearings and  shall  have
    25  full  powers to subpoena witnesses and all records or data it shall deem
    26  necessary or desirable pursuant to this chapter.
    27    8. The members of the commission shall serve on a voluntary basis  and
    28  receive no compensation for their services.
    29    §  8.  Paragraph  (f) of subdivision 4 of section 837 of the executive
    30  law, as amended by chapter 169 of the laws of 1994, is amended and a new
    31  paragraph (g) is added to read as follows:
    32    (f) Accomplish all of the functions, powers, and duties set  forth  in
    33  paragraphs (a), (b), (c) and (d) of this subdivision with respect to the
    34  processing  and  disposition  of cases involving violent felony offenses
    35  specified in subdivision one of section 70.02 of the penal law[.]; and
    36    (g) Accomplish all of the functions, powers, and duties set  forth  in
    37  paragraphs (a), (b), (c) and (d) of this subdivision with respect to all
    38  chapters  of law resulting from legislative bills that have been subject
    39  to the provisions of  sections  forty-nine  and  eighty-three-o  of  the
    40  legislative  law. The division shall present to the governor, the tempo-
    41  rary president of the senate, the minority leader  of  the  senate,  the
    42  speaker of the assembly and the minority leader of the assembly an annu-
    43  al  report  containing  the statistics and other information relevant to
    44  this subdivision.
    45    § 9. If any provision of this article or the  application  thereof  to
    46  any  person,  circumstances,  or  political subdivision of this state is
    47  adjudged invalid by a court  of  competent  jurisdiction  such  judgment
    48  shall  not  affect or impair the validity of the other provisions of the
    49  article or the application thereof to other  political  subdivisions  of
    50  this state, persons, and circumstances.
    51    § 10. This act shall take effect on the first of March next succeeding
    52  the date on which it shall have become a law; provided, however that the
    53  amendments  to  article 5-A of the legislative law made by section seven
    54  of this act shall not affect the repeal of such  article  and  shall  be
    55  deemed repealed therewith.
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