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A08823 Summary:

BILL NOA08823A
 
SAME ASSAME AS S07708
 
SPONSORBraunstein (MS)
 
COSPNSRGalef, Glick, Jaffee, Miller MG, Mosley, Zebrowski, Dinowitz, Skartados, Gottfried, Paulin, Lifton, Pellegrino, O'Donnell, Quart, Rozic, Hunter
 
MLTSPNSRCrouch
 
Amd 130.05 & 130.10, Pen L
 
Relates to establishing incapacity to consent when a person is under arrest, detention or otherwise in actual custody.
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A08823 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8823A
 
SPONSOR: Braunstein (MS)
  TITLE OF BILL: An act to amend the penal law, in relation to estab- lishing incapacity to consent when a person is under arrest, in detention or otherwise in actual custody   TITLE OF BILL: An act to amend the penal law, in relation to estab- lishing incapacity to consent when a person is under arrest, in detention or otherwise in actual custody   PURPOSE OR GENERAL IDEA OF BILL: Relates to establishing incapacity to consent when a person is under arrest, detention or otherwise in actual custody.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 of the bill amends Subdivision 3 of Section 130.05 of the Penal Law by adding a new paragraph (j) to establish an incapacity to consent when a person is under arrest, detention or otherwise in the actual custody of a police officer, peace officer or other law enforce- ment official and the actor is a police officer, peace officer or other law enforcement official who is responsible for effecting the arrest of such person or maintaining such person in detention or actual custody; or knows or reasonably should know, that such person is under such arrest, detention or actual custody. Section 2 of the bill amends Subdivision 4 of Section 130.10 of the Penal Law to establish a similar incapacity to consent when the victim is under seventeen years of age, mentally disabled, or is a client or patient and the actor is a health care provider.   JUSTIFICATION: On September 15, 2017, two Brooklyn detectives allegedly forced an 18year-old woman to perform sex acts in exchange for being released without being charged. The officers, attempting to use a loophole in the state penal code, have claimed that the sex was consensual. While state law prohibits sexual contact between corrections officers and parole officers and those in their custody, the penal code does not include a similar provision for police officers. This bill would amend state law to ensure that incidents of sexual contact between a police officer and someone under arrest, temporarily detained, or otherwise subject to law enforcement activity would also be prohibited under the penal code.   PRIOR LEGISLATIVE HISTORY: This is a new bill.   FISCAL IMPACT: None.   EFFECTIVE DATE: This act shall take effect on the thirtieth day after it shall become a law.
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A08823 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8823--A
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    December 6, 2017
                                       ___________
 
        Introduced  by  M. of A. BRAUNSTEIN, GALEF, GLICK, JAFFEE, M. G. MILLER,
          MOSLEY, ZEBROWSKI, DINOWITZ, SKARTADOS, GOTTFRIED  --  Multi-Sponsored
          by  --  M.  of A. CROUCH -- read once and referred to the Committee on
          Codes -- recommitted to the Committee  on  Codes  in  accordance  with
          Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee
 
        AN ACT to amend the penal law, in relation to establishing incapacity to
          consent  when  a  person is under arrest, in detention or otherwise in
          actual custody
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivision 3 of section 130.05 of the penal law is amended
     2  by adding a new paragraph (j) to read as follows:
     3    (j) under arrest, in detention or otherwise in the actual custody of a
     4  police  officer, peace officer or other law enforcement official and the
     5  actor is a police officer, peace officer or other law enforcement  offi-
     6  cial  who  either:  (i)  is responsible for effecting the arrest of such
     7  person or maintaining such person in detention  or  actual  custody;  or
     8  (ii)  knows,  or  reasonably should know, that such person is under such
     9  arrest, detention or actual custody.
    10    § 2. Subdivision 4 of section 130.10 of the penal law, as  amended  by
    11  chapter 205 of the laws of 2011, is amended to read as follows:
    12    4. In any prosecution under this article in which the victim's lack of
    13  consent  is  based solely on his or her incapacity to consent because he
    14  or she was less than seventeen years old, mentally disabled, a client or
    15  patient and the actor is  a  health  care  provider,  under  arrest,  in
    16  detention  or  otherwise  in actual custody of law enforcement under the
    17  circumstances described in paragraph (j) of subdivision three of section
    18  130.05 of this article, or committed to the care and custody  or  super-
    19  vision  of the state department of corrections and community supervision
    20  or a hospital and the actor is an employee, it shall be a  defense  that
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13726-03-8

        A. 8823--A                          2
 
     1  the  defendant  was married to the victim as defined in subdivision four
     2  of section 130.00 of this article.
     3    §  3.  This  act shall take effect on the thirtieth day after it shall
     4  have become a law.
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