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A05981 Summary:

BILL NOA05981
 
SAME ASSAME AS S01719-C
 
SPONSORBraunstein
 
COSPNSRGunther, Weprin, Paulin, Otis, Buttenschon, Miller ML, Zebrowski, Fernandez, Lupardo, Colton, Fall, Rosenthal L
 
MLTSPNSRPalmesano
 
Add §245.15, Pen L; amd §530.11, CP L; amd §812, Fam Ct Act; add §52-b, Civ Rts L
 
Establishes the crime of unlawful dissemination or publication of an intimate image and creates a private right of action for such crime.
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A05981 Actions:

BILL NOA05981
 
02/25/2019referred to codes
02/27/2019reported referred to rules
02/27/2019reported
02/27/2019rules report cal.34
02/27/2019ordered to third reading rules cal.34
02/28/2019passed assembly
02/28/2019delivered to senate
02/28/2019REFERRED TO CODES
02/28/2019SUBSTITUTED FOR S1719C
02/28/20193RD READING CAL.61
02/28/2019PASSED SENATE
02/28/2019RETURNED TO ASSEMBLY
07/22/2019delivered to governor
07/23/2019signed chap.109
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A05981 Committee Votes:

CODES Chair:Lentol DATE:02/27/2019AYE/NAY:21/0 Action: Favorable refer to committee Rules
LentolAyeRaAye
SchimmingerAyeGiglioAye
PretlowAyeMontesanoAye
CookAyeMorinelloAye
CymbrowitzAyePalumboAye
O'DonnellAbsentGarbarinoAye
LavineAye
PerryAye
ZebrowskiAye
AbinantiAye
WeprinAye
MosleyAye
HevesiAye
FahyAye
SeawrightAye
RosenthalAye

RULES Chair:Heastie DATE:02/27/2019AYE/NAY:27/0 Action: Favorable
HeastieAyeKolbAye
GottfriedAyeCrouchAye
LentolAyeFinchAye
GanttExcusedBarclayAye
NolanAyeRaiaAye
WeinsteinAyeHawleyExcused
OrtizAyeGiglioAye
PretlowAyeMalliotakisAye
CookAye
GlickAye
AubryAye
EnglebrightAye
DinowitzAye
ColtonAye
MagnarelliAye
PerryAye
PaulinAye
TitusExcused
Peoples-StokesAye
BenedettoAye
LavineAye
LupardoAye
ZebrowskiExcused

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A05981 Floor Votes:

DATE:02/28/2019Assembly Vote  YEA/NAY: 138/0
AbbateYCrespoYGanttERLiPetriYPerryYSimonY
AbinantiYCrouchYGarbarinoERLupardoYPheffer AmatoYSimotasY
ArroyoYCruzYGiglioYMagnarelliYPichardoYSmithY
AshbyYCusickYGlickYMalliotakisYPretlowYSmullenY
AubryYCymbrowitzYGoodellYManktelowYQuartYSolagesY
BarclayYDavilaYGottfriedYMcDonaldYRaYStecY
BarnwellYDe La RosaYGriffinYMcDonoughYRaiaYSteckY
BarrettYDenDekkerYGuntherYMcMahonYRamosYSternY
BarronYDeStefanoYHawleyERMikulinYRaynorYStirpeY
BenedettoYDickensERHevesiYMill B YReillyYTagueER
BichotteERDilanYHunterYMill MGYReyesYTaylorY
BlakeERDinowitzYHyndmanYMill MLYRichardsonYThieleY
BlankenbushYDiPietroERJacobsonYMontesanoYRiveraYTitusER
BrabenecYD'UrsoERJaffeeYMorinelloYRodriguezYVanelY
BraunsteinYEichensteinYJean-PierreYMosleyYRomeoYWalczykY
BronsonYEnglebrightYJohnsYNiouYRose D YWalkerY
BuchwaldYEpsteinYJonesYNolanYRose L YWallaceY
BurkeYFahyYJoynerYNorrisYRozicYWalshY
ButtenschonYFallYKimYO'DonnellERRyanYWeinsteinY
ByrneYFernandezYKolbEROrtizYSalkaYWeprinY
ByrnesYFinchYLalorYOtisYSantabarbaraYWilliamsY
CahillYFitzpatrickYLavineYPalmesanoYSayeghYWoernerY
CarrollYFriendYLawrenceYPalumboYSchimmingerYWrightY
ColtonYFrontusYLentolYPaulinYSchmittYZebrowskiY
CookYGalefYLiftonYPeoples-StokesYSeawrightYMr SpkrY

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A05981 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5981          REVISED 04/09/19
 
SPONSOR: Braunstein
  TITLE OF BILL: An act to amend the penal law, the criminal procedure law, the family court act and the civil rights law, in relation to establishing the crime of unlawful dissemination or publication of an intimate image   PURPOSE OR GENERAL IDEA OF BILL: Establishes the crime of unlawful dissemination or publication of an intimate image and creates a private right of action for such crime.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 of the bill creates the crime of unlawful dissemination or publication of an intimate image. A person is guilty of this crime when, with intent to cause harm to the emotional, financial or physical welfare of another person, he or she intentionally disseminates or publishes an intimate still or video image of such other person, without such person's consent. An intimate image is a still or video image which shows the intimate parts of such person, or depicts such person engaging in sexual conduct as defined in the penal law. Unlawful dissemination or publication of an intimate image is a class A misdemeanor. Sections 2 and 3 of the bill provide the family court with concurrent jurisdiction over proceedings that would constitute unlawful dissem- ination or publication of an intimate image between spouses or former spouses, parents and children or members of the same family or house- hold. Section 4 of the bill creates a private right of action for an individ- ual to pursue damages and injunctive relief against someone who unlaw- fully disseminates or publishes an intimate image. The private right of action is designed to work in conjunction with the criminal law, and does not require that a criminal conviction or charge be obtained in order to proceed. An individual can also commence a special proceeding to obtain a court order to have an intimate image permanently removed from the internet.   JUSTIFICATION: In an era of increased text messaging, social networking, and emailing, people in intimate relationships sometimes share pictures with each other, some of which may be sexually explicit in nature. However, recip- ients of these images do not always keep the images within the confines of an intimate relationship, and have the ability to widely disseminate the photos on the Internet. The unlawful dissemination and publication of such intimate images, also known as "revenge porn" is often provided to Internet websites, and features photos sometimes accompanied by disparaging descriptions and identifying details, such as where the victims live and work, as well as links to their social network pages. Posting these photographs online is damaging to the reputations of the victims. These photographs have extensive negative effects, including destroying future intimate relationships and educational and employment opportunities. Victims are routinely threatened with sexual assault, stalked, harassed, or fired from jobs. This legislation adds a private right of action for unlawful dissem- ination and publication images that would provide recourse to victims. The private right of action is designed to work in conjunction with the criminal law, and does not require that a criminal conviction or charge be obtained in order to proceed. The victim will have a choice whether to pursue a criminal or civil case, or both.   PRIOR LEGISLATIVE HISTORY: 2018 - A.11188-A/S.9019-A - Passed Assembly.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect on the sixtieth day after it shall have become a law.
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A05981 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5981
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 25, 2019
                                       ___________
 
        Introduced  by  M.  of  A.  BRAUNSTEIN,  GUNTHER,  WEPRIN, PAULIN, OTIS,
          BUTTENSCHON, M. L. MILLER -- read once and referred to  the  Committee
          on Codes
 
        AN  ACT  to  amend the penal law, the criminal procedure law, the family
          court act and the civil rights law, in relation  to  establishing  the
          crime of unlawful dissemination or publication of an intimate image
 
          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 245.15  to
     2  read as follows:
     3  § 245.15 Unlawful dissemination or publication of an intimate image.
     4    1.  A  person is guilty of unlawful dissemination or publication of an
     5  intimate image when:
     6    (a) with intent to cause harm to the emotional, financial or  physical
     7  welfare  of  another  person,  he  or  she intentionally disseminates or
     8  publishes a still or video image of such other person, who is  identifi-
     9  able  from the still or video image itself or from information displayed
    10  in connection with the still or video image, without such other person's
    11  consent, which depicts:
    12    (i) an unclothed or exposed intimate part of such other person; or
    13    (ii) such other person engaging in sexual conduct as defined in subdi-
    14  vision ten of section 130.00 of this chapter with another person; and
    15    (b) such still or video image was taken under circumstances  when  the
    16  person depicted had a reasonable expectation that the image would remain
    17  private  and  the  actor knew or reasonably should have known the person
    18  depicted intended for the  still  or  video  image  to  remain  private,
    19  regardless  of  whether  the  actor  was present when the still or video
    20  image was taken.
    21    2. For purposes of this section "intimate part" means the naked  geni-
    22  tals, pubic area, anus or female nipple of the person.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06276-14-9

        A. 5981                             2
 
     1    2-a.  For  purposes  of this section "disseminate" and "publish" shall
     2  have the same meaning as defined in section 250.40 of this title.
     3    3. This section shall not apply to the following:
     4    (a) the reporting of unlawful conduct;
     5    (b)  dissemination  or  publication  of  an intimate image made during
     6  lawful and common practices of law  enforcement,  legal  proceedings  or
     7  medical treatment;
     8    (c)  images  involving  voluntary  exposure  in a public or commercial
     9  setting; or
    10    (d) dissemination or publication of  an  intimate  image  made  for  a
    11  legitimate public purpose.
    12    4. Nothing in this section shall be construed to limit, or to enlarge,
    13  the  protections  that 47 U.S.C § 230 confers on an interactive computer
    14  service for content provided by another information content provider, as
    15  such terms are defined in 47 U.S.C. § 230.
    16    Unlawful dissemination or publication of an intimate image is a  class
    17  A misdemeanor.
    18    §  2.  The opening paragraph of subdivision 1 of section 530.11 of the
    19  criminal procedure law, as amended by section 4 of part NN of chapter 55
    20  of the laws of 2018, is amended to read as follows:
    21    The family court and the criminal courts shall have concurrent  juris-
    22  diction  over  any  proceeding  concerning  acts  which would constitute
    23  disorderly conduct, unlawful dissemination or publication of an intimate
    24  image, harassment in the first degree, harassment in the second  degree,
    25  aggravated  harassment in the second degree, sexual misconduct, forcible
    26  touching, sexual abuse in the third degree, sexual abuse in  the  second
    27  degree  as  set  forth in subdivision one of section 130.60 of the penal
    28  law, stalking in the first degree, stalking in the second degree, stalk-
    29  ing in the  third  degree,  stalking  in  the  fourth  degree,  criminal
    30  mischief,  menacing  in the second degree, menacing in the third degree,
    31  reckless endangerment, strangulation in the first degree,  strangulation
    32  in  the second degree, criminal obstruction of breathing or blood circu-
    33  lation, assault in the second degree, assault in the  third  degree,  an
    34  attempted assault, identity theft in the first degree, identity theft in
    35  the  second degree, identity theft in the third degree, grand larceny in
    36  the fourth degree, grand larceny in the third degree,  coercion  in  the
    37  second  degree  or coercion in the third degree as set forth in subdivi-
    38  sions one, two and three of section 135.60  of  the  penal  law  between
    39  spouses  or  former  spouses,  or  between  parent  and child or between
    40  members of the same family or household except that  if  the  respondent
    41  would not be criminally responsible by reason of age pursuant to section
    42  30.00  of  the  penal  law,  then  the family court shall have exclusive
    43  jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
    44  election  to  proceed  in  family court, the criminal court shall not be
    45  divested of jurisdiction to hear a family offense proceeding pursuant to
    46  this  section.  For  purposes  of  this  section,  "disorderly  conduct"
    47  includes disorderly conduct not in a public place.  For purposes of this
    48  section,  "members  of  the  same family or household" with respect to a
    49  proceeding in the criminal courts shall mean the following:
    50    § 3. The opening paragraph of subdivision 1  of  section  812  of  the
    51  family  court  act,  as amended by section 5 of part NN of chapter 55 of
    52  the laws of 2018, is amended to read as follows:
    53    The family court and the criminal courts shall have concurrent  juris-
    54  diction  over  any  proceeding  concerning  acts  which would constitute
    55  disorderly conduct, unlawful dissemination or publication of an intimate
    56  image, harassment in the first degree, harassment in the second  degree,

        A. 5981                             3
 
     1  aggravated  harassment in the second degree, sexual misconduct, forcible
     2  touching, sexual abuse in the third degree, sexual abuse in  the  second
     3  degree  as  set  forth in subdivision one of section 130.60 of the penal
     4  law, stalking in the first degree, stalking in the second degree, stalk-
     5  ing  in  the  third  degree,  stalking  in  the  fourth degree, criminal
     6  mischief, menacing in the second degree, menacing in the  third  degree,
     7  reckless endangerment, criminal obstruction of breathing or blood circu-
     8  lation,  strangulation  in the second degree, strangulation in the first
     9  degree, assault in the second degree, assault in the  third  degree,  an
    10  attempted assault, identity theft in the first degree, identity theft in
    11  the  second degree, identity theft in the third degree, grand larceny in
    12  the fourth degree, grand larceny in the third degree,  coercion  in  the
    13  second  degree  or coercion in the third degree as set forth in subdivi-
    14  sions one, two and three of section 135.60  of  the  penal  law  between
    15  spouses  or  former  spouses,  or  between  parent  and child or between
    16  members of the same family or household except that  if  the  respondent
    17  would not be criminally responsible by reason of age pursuant to section
    18  30.00  of  the  penal  law,  then  the family court shall have exclusive
    19  jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
    20  election  to  proceed  in  family court, the criminal court shall not be
    21  divested of jurisdiction to hear a family offense proceeding pursuant to
    22  this section. In any proceeding pursuant to this article, a court  shall
    23  not  deny  an  order of protection, or dismiss a petition, solely on the
    24  basis that the acts or events alleged are not relatively contemporaneous
    25  with the date of the petition, the conclusion of the fact-finding or the
    26  conclusion of the dispositional hearing. For purposes of  this  article,
    27  "disorderly  conduct" includes disorderly conduct not in a public place.
    28  For purposes of this article, "members of the same family or  household"
    29  shall mean the following:
    30    §  4.  The civil rights law is amended by adding a new section 52-b to
    31  read as follows:
    32    § 52-b. Private right of action for unlawful dissemination or publica-
    33  tion of an intimate image. 1.  Any person depicted in a still  or  video
    34  image,  regardless  of  whether or not the original still or video image
    35  was consensually obtained, shall have a cause of action against an indi-
    36  vidual who, for the purpose of  harassing,  annoying  or  alarming  such
    37  person,  disseminated  or  published,  or  threatened  to disseminate or
    38  publish, such still or video image, where such image:
    39    a. was taken when such person had a reasonable  expectation  that  the
    40  image would remain private; and
    41    b.  depicts  (i) an unclothed or exposed intimate part of such person;
    42  or (ii) such person engaging in sexual conduct, as defined  in  subdivi-
    43  sion ten of section 130.00 of the penal law, with another person; and
    44    c.  was disseminated or published, or threatened to be disseminated or
    45  published, without the consent of such person.
    46    2. In any  action  commenced  pursuant  to  subdivision  one  of  this
    47  section,  the  finder  of  fact, in its discretion, may award injunctive
    48  relief, punitive damages,  compensatory  damages  and  reasonable  court
    49  costs and attorney's fees.
    50    3. This section shall not apply to the following:
    51    a. the reporting of unlawful conduct;
    52    b.  dissemination  or  publication of an intimate still or video image
    53  made during lawful  and  common  practices  of  law  enforcement,  legal
    54  proceedings or medical treatment;
    55    c.  images  involving  voluntary  exposure  in  a public or commercial
    56  setting; or

        A. 5981                             4

     1    d. dissemination or publication of an intimate still  or  video  image
     2  made for a legitimate public purpose.
     3    4.  Any  person  depicted  in  a  still or video image that depicts an
     4  unclothed or exposed intimate part of such person, or such person engag-
     5  ing in sexual conduct as defined in subdivision ten of section 130.00 of
     6  the penal law with another person, which is  disseminated  or  published
     7  without  the  consent of such person and where such person had a reason-
     8  able expectation that the image would remain private,  may  maintain  an
     9  action  or  special  proceeding for a court order to require any website
    10  that is subject to personal jurisdiction under subdivision five of  this
    11  section  to permanently remove such still or video image; any such court
    12  order granted pursuant to this subdivision may direct removal only as to
    13  images that are reasonably within such website's control.
    14    5. a. Any website that hosts or transmits  a  still  or  video  image,
    15  viewable  in  this  state,  taken  under  circumstances where the person
    16  depicted had a  reasonable  expectation  that  the  image  would  remain
    17  private, which depicts:
    18    (i)  an  unclothed  or  exposed  intimate  part, as defined in section
    19  245.15 of the penal law, of a resident of this state; or
    20    (ii) a resident of this state engaging in sexual conduct as defined in
    21  subdivision ten of section 130.00 of the penal law with another  person;
    22  and
    23    b.  Such  still  or  video  image is hosted or transmitted without the
    24  consent of such resident of this state, shall  be  subject  to  personal
    25  jurisdiction  in  a  civil  action  in  this state to the maximum extent
    26  permitted under the United States constitution and federal law.
    27    6. A cause of action or special proceeding under this section shall be
    28  commenced the later of either:
    29    a. three years after the dissemination or publication of an image; or
    30    b. one year from the date a person  discovers,  or  reasonably  should
    31  have discovered, the dissemination or publication of such image.
    32    7. Nothing herein shall be read to require a prior criminal complaint,
    33  prosecution  or  conviction  to  establish  the elements of the cause of
    34  action provided for by this section.
    35    8. The provisions of this section are in addition to,  but  shall  not
    36  supersede, any other rights or remedies available in law or equity.
    37    9.  If  any provision of this section or its application to any person
    38  or circumstance is held invalid, the invalidity shall not  affect  other
    39  provisions  or  applications  of  this section which can be given effect
    40  without the invalid provision  or  application,  and  to  this  end  the
    41  provisions of this section are severable.
    42    10.  Nothing  in  this  section  shall  be  construed  to limit, or to
    43  enlarge, the protections that 47 U.S.C § 230 confers on  an  interactive
    44  computer  service  for  content  provided by another information content
    45  provider, as such terms are defined in 47 U.S.C. § 230.
    46    § 5. This act shall take effect on the sixtieth  day  after  it  shall
    47  have become a law.
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