NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3226
SPONSOR: Gonzalez-Rojas TITLE OF BILL:
An act to amend the civil practice law and rules, the penal law and the
criminal procedure law, in relation to anti-stalking orders
PURPOSE OR GENERAL IDEA OF BILL:
To follow the precedent of 44 other states in allowing for civil orders
of protection for certain stalking or harassing forms of behavior that
may not be easily or quickly prosecuted through the criminal court
system.
SUMMARY OF PROVISIONS:
Section one of this bill names it the Ceasing Repeated, Extremely Egre-
gious, and Predatory (CREEP) Behavior Act.
Section two of this bill creates a new Article 63-B in the Civil Prac-
tice Law and Rules (CPLR) to create a new type of order of protection,
called an anti-stalking order, for anyone subject to a series of enumer-
ated penal offenses including stalking, menacing, assault or attempted
assault, harassment, unlawful dissemination or publication of an inti-
mate image, reckless endangerment, identity theft, and coercion. There
is existing precedent for orders of protection for this subset of
crimes, as they are also some of the qualifying offenses for which
victims may petition for an order of protection in Family Court, if they
occur between family members or intimate partners.
Petitioners may be granted a temporary anti-stalking order ex parte for
certain limited forms of relief, such as the removal of texts, images,
or videos, cessation of all contact with the petitioner, and a severing
of connected devices, until the date of a hearing .during which a final
anti-stalking order may be issued. Such final anti-stalking order, which
may also include compensatory damages such as but not limited to attor-
neys fees, loss of earnings, medical care and treatment arising from the
incident forming the basis of the anti-stalking order, or the cost of a
new lock or telephone number, upon a judicial finding of fact, judicial
acceptance of an admission by the respondent, or knowing, intelligent,
and voluntary consent to the anti-stalking order by the respondent. The
court shall have discretion in determining the duration of the final
anti-stalking order.
Anti-stalking orders may be served by local law enforcement or through a
third party, such as a service processor, and may be transmitted elec-
tronically for expedited service. An anti-stalking order may be modified
or vacated upon the request of the petitioner. Violations for breaking
an anti-stalking order are subject to the same penalties that apply to
violations of other orders of protection, which may range from a Class A
misdemeanor, if the violation fits the definition of menacing in the
second degree or criminal contempt in the second degree, to a Class E
felony, if the violation occurs as part of criminal contempt in the
first degree, to a Class D felony, if the violation occurs as part of
aggravated criminal contempt. The bill ensures that prosecutors would
effectively have the same menu of options available to them for
infringements of an anti-stalking order as exist for other orders of
protection and could charge the defendant accordingly depending on the
circumstances of the case.
Courts would also be required to provide full faith and credit to orders
of protection from other states and territories that are substantially
similar to the anti-stalking orders created in this bill.
Section three of the bill make a conforming change to the allow the
offense of menacing in the second degree in section 120.14 of Penal Law
to incorporate violations of the new civil order of protection created
by this bill alongside violations of existing orders of protection
issued under section 530.12 of the Criminal Procedure Law, Article 8 of
Family Court Act, or by a court of competent jurisdiction in another
state.
Section four makes a similar conforming change to section 215.51 of the
Penal Law to allow the offense of criminal contempt in the first degree
to incorporate violations of the new civil order of protection created
by the bill alongside violations of existing orders of protection issued
under Domestic Relations Law, various articles in Family Court Act,
section 530.12 of the Criminal Procedure Law, or by a court of competent
jurisdiction in another state.
Section five makes a conforming change to allow police officers to
arrest a person where they have reasonable cause to believe that such
person has violated a duly served anti-stalking order, the same as they
can for violations of existing orders of protection.
Section six sets the effective date.
JUSTIFICATION:
Currently, victims of predatory stalking and harassing behaviors who
wish to secure an order of protection (OOP), commonly known as a
restraining order, against their perpetrators may do so via one of three
routes in the state of New York.
Firstly, a victim can secure a restraining order through criminal court,
where a judge may issue the order against a defendant as a condition of
their release and/or bail in a criminal case. This means that a
restraining order may only be issued during a criminal arraignment,
after a formal police investigation, arrest, and decision by a district
attorney to file charges. While a critical means of relief for victims
wishing to pursue charges, this method of securing an OOP is simply too
slow-moving for many victims of harassment in the 21st century, who may
find themselves on the receiving end of certain Internet-enabled
offenses like cyberstalking, revenge porn, rapidly spreading defamatory
material, doxxing, or deep fakes in a way that was simply inconceivable
three decades ago. This method of obtaining an OOP through the criminal
justice system, which involves methodical and thorough investigations
that are frequently dependent on local resources and in-person inter-
actions, is simply impractical for an individual who may have gone viral
on TikTok, for example, and thus found themselves besieged by a digital
stalker within the span of a couple days - particularly if said stalker
lives hundreds of miles away and would thus need to be extradited from
other state.
A second means of obtaining an OOP in New York is through family court,
which hears cases involving children and families as well as persons who
have been in an "intimate relationship," defined by factors such as the
nature and duration of the relationship and frequency of interactions.
"Casual acquaintance" and "ordinary fraternization" between two individ-
uals is explicitly placed outside of the jurisdiction of family court
under Section 812 of the Family Court Act (FCA). While Section 812 of
the FCA establishes a list of crimes for which family court and criminal
courts share jurisdiction, such as unlawful dissemination or publication
of an intimate image, harassment, identity theft, coercion, stalking,
and a range of other offenses, the act fails to account for the ways in
which technology has anonymized our relationships, such that many
victims of the crimes that Section 812 seeks to protect no longer meet
the definition of having had an "intimate relationship" with their
offender. Nowadays a victim may be just as likely to be harmed by a
jealous ex with whom they cohabitated, for example, as someone they've
met through an online chat room or went on one date with via an app.
The third and final means of obtaining an OOP in New York is through
general Supreme Court, but only as part of an ongoing divorce proceeding
between separating spouses. As outlined above, none of these three
forms of recourse provide an easy remedy for victims of harassment in
the modern age. Not only has the digital revolution enabled an entirely
new type of criminal behavior, such as revenge porn, "upskirting," or
taking sexually intrusive photographs or videos without permission,
online stalking, and more, but it has also altered the way we discover
and define new relationships. Many victims of Internet-enabled crimes
need immediate relief from their offenders in a way that simply can't be
delivered through the criminal justice system, and which may not fit the
definition of intimate partner violence that falls under the jurisdic-
tion of family court.
This bill, called the Ceasing Repeated, Extremely Egregious, and Preda-
tory (CREEP) Behavior Act, follows the lead of 44 other states in enabl-
ing orders of protection called "anti-stalking orders" through civil
courts of general jurisdiction rather than solely through criminal
courts or specialized family courts. It draws upon many of the same
protocols that define the existing methods by which victims can obtain
OOPs, such as the issuance of an initial, more limited anti-stalking
order that may be granted ex parte to provide immediate relief to a
victim, pending a more complete hearing after which a judge could issue
a final anti-stalking order to provide broader measures of protection.
It conforms the penalties for noncompliance with this new anti-stalking
order into the existing penalties for noncompliance for other OOPs,
which range from criminal contempt in the second degree, a Class A
misdemeanor, for a straightforward violation, to aggravated criminal
contempt, a Class E felony, if the noncompliance also involves a previ-
ous conviction of criminal contempt in the first degree which may
require various acts that would reasonably cause the victim to fear for
their physical safety. It also creates a mechanism by which the state
must recognize out of state OOPs that are substantially similar to the
anti-stalking orders created by the bill.
In creating a new, more easily obtained order of protection through the
civil court system, the CREEP Behavior Act modernizes New York's orders
of protection to account for the broader, digitized landscape in which
harassment now occurs. It will provide immediate relief to victims of
harassing behavior without a prerequisite arrest, better protecting
victims for whom the existing methods of obtaining an OOP are out of
reach.
PRIOR LEGISLATIVE HISTORY:
None
FISCAL IMPLICATIONS:
TBD
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law.
