Provides that a full time elementary or secondary student shall not have capacity to consent to sexual conduct with a school employee at his or her school or a co-located school, including volunteers, when the employee is 18 or older and more than 4 years older than such student at the time of the act and knows or should reasonably have known that the student was a student at the school or a co-located school, and such employee is not a full time student at such school, nor married to such student.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1482
SPONSOR: Gunther TITLE OF BILL:
An act to amend the penal law, in relation to providing that an elemen-
tary or secondary school student shall be incapable of consenting to
sexual conduct with a school employee
PURPOSE:
To criminalize school employees for sexual conduct with full time
students of elementary and secondary schools.
SUMMARY OF PROVISIONS:
Section one amends section 130.00 of the penal law by defining "school
employee."
Section two amends paragraph (i) of subdivision 3 of section 130.05 of
the penal law and adds a new paragraph (k) to include school employees,
being eighteen years of age or older, at the same school such student
attends to be charged with a crime if sexual conduct occurs.
Section three contains the effective date.
EXISTING LAW:
Section 130.05 provides for the definition of sex offense with lack of
consent as rape in the third degree, which is a class E felony and
carries a sentence of 1 1/3 - 4 years imprisonment.
JUSTIFICATION:
This legislation has been introduced at the request of the New York
State District Attorneys Association's Legislative Committee in order to
criminalize sexual conduct between school employees or volunteers and
students. This legislation seeks to assign a criminal penalty to these
persons who engage in sexual conduct with a person that he or she knows
or reasonably should know is a student at the school that they are
employed.
Children need to be protected from those in positions of power who may
try and manipulate them into engaging in sexual activities, even if they
are at the age of consent. There have been far too many instances of
inappropriate sexual conduct between students. This legislation also
defines the term school employee to mean any person defined as an
employee or volunteer pursuant to section 1125 of the education law. Any
person receiving compensation from a school district where services
performed involve direct student contact and any person, other than an
employee, who provide services to a school or school district, which
involve direct student contact would be considered a school employee.
This legislation addresses any possible adult that is in a position of
trust in a school.
Twenty-two other states have recognized the seriousness of the issue and
criminalize this conduct under their current statutes.
LEGISLATIVE HISTORY:
2021-22: A45 referred to Codes/S5350 referred to Codes
2019-20: A2043 referred to Codes/S2025 referred to Codes
2017-18: A1849 referred to Codes/S2582 Passed Senate
2015-16: A1828 referred to Codes
2013-14: A1504 referred to Codes
2011-12: A470 referred to Codes/56714 Passed Senate
2009-10: A736 referred to Codes/5299 referred to Codes
2007-08: A7671 referred to Codes/S1116 Passed Senate
2005-06: S.8098 Passed Senate
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding the
date on which it shall have become a law.
STATE OF NEW YORK
________________________________________________________________________
1482
2023-2024 Regular Sessions
IN ASSEMBLY
January 17, 2023
___________
Introduced by M. of A. GUNTHER, BENEDETTO, LEMONDES -- read once and
referred to the Committee on Codes
AN ACT to amend the penal law, in relation to providing that an elemen-
tary or secondary school student shall be incapable of consenting to
sexual conduct with a school employee
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 130.00 of the penal law is amended by adding a new
2 subdivision 14 to read as follows:
3 14. "School employee" shall mean any person defined as an "employee"
4 or "volunteer" pursuant to section eleven hundred twenty-five of the
5 education law.
6 § 2. Paragraphs (i) and (j) of subdivision 3 of section 130.05 of the
7 penal law, paragraph (i) as amended and paragraph (j) as added by
8 section 1 of part JJ of chapter 55 of the laws of 2018, are amended and
9 a new paragraph (k) is added to read as follows:
10 (i) a resident or inpatient of a residential facility operated,
11 licensed or certified by (i) the office of mental health; (ii) the
12 office for people with developmental disabilities; or (iii) the office
13 of alcoholism and substance abuse services, and the actor is an employee
14 of the facility not married to such resident or inpatient. For purposes
15 of this paragraph, "employee" means either: an employee of the agency
16 operating the residential facility, who knows or reasonably should know
17 that such person is a resident or inpatient of such facility and who
18 provides direct care services, case management services, medical or
19 other clinical services, habilitative services or direct supervision of
20 the residents in the facility in which the resident resides; or an offi-
21 cer or other employee, consultant, contractor or volunteer of the resi-
22 dential facility, who knows or reasonably should know that the person is
23 a resident of such facility and who is in direct contact with residents
24 or inpatients; provided, however, that the provisions of this paragraph
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01165-01-3
A. 1482 2
1 shall only apply to a consultant, contractor or volunteer providing
2 services pursuant to a contractual arrangement with the agency operating
3 the residential facility or, in the case of a volunteer, a written
4 agreement with such facility, provided that the person received written
5 notice concerning the provisions of this paragraph; provided further,
6 however, "employee" shall not include a person with a developmental
7 disability who is or was receiving services and is also an employee of a
8 service provider and who has sexual contact with another service recipi-
9 ent who is a consenting adult who has consented to such contact; [or]
10 (j) detained or otherwise in the custody of a police officer, peace
11 officer, or other law enforcement official and the actor is a police
12 officer, peace officer or other law enforcement official who either: (i)
13 is detaining or maintaining custody of such person; or (ii) knows, or
14 reasonably should know, that at the time of the offense, such person was
15 detained or in custody[.]; or
16 (k) a student at an elementary or secondary school, and the actor:
17 (i) is a school employee at the same school or co-located school such
18 student attends, and
19 (ii) is eighteen years of age or older and more than four years older
20 than such student at the time of the act, and
21 (iii) is not married to such student, and
22 (iv) knows or reasonably should know that such person is a student at
23 such school or co-located school, and
24 (v) he or she is not a student at the same school.
25 § 3. This act shall take effect on the first of November next succeed-
26 ing the date on which it shall have become a law.
