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.
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.
