Relates to establishing lack of consent for sex offenses where a person intentionally removes or damages a sexually protective device without permission; establishes that there is a lack of consent for sexual offenses where a person freely agrees to have sexual intercourse or sexual contact with another person on the condition that a sexually protective device is used, and that other person intentionally removes or damages the sexually protective device without permission; defines sexually protective device.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8069
SPONSOR: Moya TITLE OF BILL: An act to amend the penal law, in relation to estab-
lishing lack of consent for sex offenses where a person intentionally
removes or damages a sexually protective device without permission
PURPOSE OR GENERAL IDEA OF BILL:
This bill amends the penal law pertaining to sexual assault by modifying
the definition of consent. It would consider the removal of a sexually
protective device before or during intercourse without a partner's
consent as rape in the third degree, identical to sexual contact without
consent.
SUMMARY OF PROVISIONS:
Section 1. Amends paragraph (d) of subdivision 2 of section 130.05 of
the penal law, as amended by chapter 40 of the laws of 2004, and adds a
new paragraph (e), to consider the intentional removal of a sexually
protective device during sexual contact as rape in the third degree.
Section 2. Enacts the act immediately.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
JUSTIFICATION:
Stealthing is a form of sexual assault in which a person chooses to
remove a sexually protective device during or before intercourse without
their partner's knowledge or consent. Although "Stealthing" is not a
new phenomenon, a lack of awareness or understanding has caused the
sexual assault to go underreported.
Recently, more women have come out to speak about their experience with
stealthing after a study published in toe Columbia law journal garnered
attention. Women have written in blogs describing the experience, equat-
ing the violation to a form of rape. Not only is the act emotionally
traumatizing and a violation of consensus to use protection, it also
exposes women to the risk of sexually contracted diseases and pregnancy.
The United States and most countries, There is a lacks clear legis-
lation, and even less legal precedent. Currently, both the California
and Wisconsin have introduced legislation to expand the definition of
rape to consider stealthing as a sexual act lacking consent.
This bill's legislation would explicitly consider stealthing rape in the
third degree, akin to sexual intercourse or contact without consent. It
would also contribute to better understanding and recognition of the
crime.
PRIOR LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
Not available.
EFFECTIVE DATE:
Immediately.
STATE OF NEW YORK
________________________________________________________________________
8069
2017-2018 Regular Sessions
IN ASSEMBLY
May 25, 2017
___________
Introduced by M. of A. MOYA -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law, in relation to establishing lack of
consent for sex offenses where a person intentionally removes or
damages a sexually protective device without permission
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 rape in the third degree as defined
5 in subdivision three of section 130.25, or criminal sexual act in the
6 third degree as defined in subdivision three of section 130.40, in addi-
7 tion to forcible compulsion, circumstances under which, at the time of
8 the act of intercourse, oral sexual conduct or anal sexual conduct, the
9 victim clearly expressed that he or she did not consent to engage in
10 such act, and a reasonable person in the actor's situation would have
11 understood such person's words and acts as an expression of lack of
12 consent to such act under all the circumstances[.];or
13 (e) Where a person freely agrees to have sexual intercourse or sexual
14 contact with another person on the condition that a sexually protective
15 device is used, and that other person intentionally removes or damages
16 the sexually protective device without permission before or during sexu-
17 al intercourse or sexual contact. For the purposes of this paragraph,
18 "sexually protective device" means a male or female condom, spermicide,
19 diaphragm, cervical cap, contraceptive sponge, dental dam, or any other
20 physical device intended to prevent pregnancy or sexually transmitted
21 infection.
22 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11885-01-7
