senate Bill S753

Establishes the crimes of aggravated rape, aggravated criminal sexual act and aggravated sexual abuse

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 05 / Jan / 2011
    • REFERRED TO CODES
  • 04 / Jan / 2012
    • REFERRED TO CODES

Summary

Increases the penalties for the violent sex offenses of rape, criminal sexual act and aggravated sexual abuse when committed in a forcible manner where an actor or accomplice is armed with or displays a deadly weapon, uses or threatens the use of a dangerous instrument or inflicts physical injury upon the victim.

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Bill Details

Versions:
S753
Legislative Cycle:
2011-2012
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd §§70.02, 130.65-a, 130.66, 130.67 & 130.70, add §§130.36, 130.51 & 130.71, Pen L; amd §720.10, CP L
Versions Introduced in 2009-2010 Legislative Cycle:
S3412

Sponsor Memo

BILL NUMBER:S753

TITLE OF BILL:

An act
to amend the penal law, in relation
to aggravated sexual offenses;
and to amend the criminal procedure law, in relation to youthful
offender status

PURPOSE:

To provide a higher felony classification for certain forcible sex
crimes when such crimes are further aggravated by the presence or use
of a deadly weapon or dangerous instrument or by the infliction of
physical injury.

SUMMARY OF PROVISIONS:

The Penal Law is amended by adding three new sections, 130.36,
130.51 and 130.71, which establish the crimes of aggravated rape,
aggravated sodomy and aggravated sexual abuse. The Penal Law and
Criminal Procedure Law are amended to reflect a higher felony
classification for certain forcible sex crimes.

JUSTIFICATION:

"Forcible compulsion" describes a type of criminal conduct by which a
person who engages in sexual activity with another person is guilty
of the Class B felonies of first degree rape, first degree sodomy and
aggravated sexual abuse. The current definition of forcible
compulsion is the result of a number of amendments within the last
decade which have eliminated the requirement that the victim of a
sexual attack must offer "earnest resistance" or else lose all chance
to successfully prosecute the attacker. Submission to a sexual attack
to preserve one's life or safety is no longer considered as consent
to a sex crime. However, an unintentional consequence of this desired
reform is that "forcible compulsion" now encompasses a very broad
range of criminal behavior. The concept of forcible compulsion, for
example, has been extended to include an implied threat which places
the victim in fear that a third person will be kidnapped.
Furthermore, even if forcible compulsion is accomplished in a minimal
manner, current law does not differentiate between such conduct and
that which is accompanied by a serious aggravating factor such as the
use of a deadly weapon.

This bill does not seek to undo the progress made in the forcible
compulsion area. But it is clear that an attacker who possesses or
uses a deadly weapon or who inflicts physical injury either to compel
submission or as concomitant to the crime presents a higher disregard
for, and danger to, human life than that presented in the case of an
implied weaponless threat. The law should not continue to give equal
weight to vastly divergent criminal activities. Thus it is
appropriate that these forcible sex crimes when further aggravated by
the use of weapons or by the infliction of physical injury reflect


that increased seriousness by being classified at the A-II felony
level.

LEGISLATIVE HISTORY:

2009-2010: S.3412 Referred to Codes
2007-2008: S.388 Referred to Codes
2006: S.6400 Referred to Codes
2003-2004: S.3316 Referred to Codes
2001-2002: S.3007 Referred to Codes
1999-2000: S.3336/A.732 Referred to Codes

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

The first day of November next succeeding the date of
enactment into law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   753

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sens.  YOUNG,  BONACIC, JOHNSON, MAZIARZ, RANZENHOFER --
  read twice and ordered printed, and when printed to  be  committed  to
  the Committee on Codes

AN  ACT  to  amend  the  penal  law,  in  relation  to aggravated sexual
  offenses; and to amend the criminal  procedure  law,  in  relation  to
  youthful offender status

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraphs (a), (b) and (c) of  subdivision  1  of  section
70.02  of  the penal law, paragraph (a) as amended by chapter 320 of the
laws of 2006, and paragraphs (b) and (c) as amended by  chapter  405  of
the laws of 2010, are amended to read as follows:
  (a)  Class  B  violent felony offenses: an attempt to commit the class
A-I felonies of murder in  the  second  degree  as  defined  in  section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson  in the first degree as defined in section 150.20; manslaughter in
the first degree as defined in section 125.20,  aggravated  manslaughter
in  the  first  degree  as  defined in section 125.22, rape in the first
degree as defined in section 130.35, criminal sexual act  in  the  first
degree  as  defined  in  section  130.50, aggravated sexual abuse in the
[first] SECOND degree as defined in section  130.70,  course  of  sexual
conduct  against  a  child  in  the  first  degree as defined in section
130.75; assault in the  first  degree  as  defined  in  section  120.10,
kidnapping  in  the second degree as defined in section 135.20, burglary
in the first degree as defined in section 140.30, arson  in  the  second
degree  as  defined  in  section  150.15, robbery in the first degree as
defined in section 160.15, incest in the  first  degree  as  defined  in
section  255.27,  criminal possession of a weapon in the first degree as
defined in section 265.04, criminal use of a firearm in the first degree
as defined in section 265.09, criminal sale of a firearm  in  the  first

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02703-01-1

S. 753                              2

degree  as  defined  in section 265.13, aggravated assault upon a police
officer or a peace officer as defined in section 120.11, gang assault in
the first degree as defined in section 120.07, intimidating a victim  or
witness  in  the  first  degree  as defined in section 215.17, hindering
prosecution of terrorism in the  first  degree  as  defined  in  section
490.35, criminal possession of a chemical weapon or biological weapon in
the  second  degree  as defined in section 490.40, and criminal use of a
chemical weapon or biological weapon in the third degree as  defined  in
section 490.47.
  (b)  Class  C violent felony offenses: an attempt to commit any of the
class B felonies set forth in paragraph (a) of this subdivision;  aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated  manslaughter  in  the second degree as defined in section 125.21,
aggravated sexual abuse in the  [second]  THIRD  degree  as  defined  in
section  130.67,  assault on a peace officer, police officer, fireman or
emergency medical services professional as defined  in  section  120.08,
gang assault in the second degree as defined in section 120.06, strangu-
lation in the first degree as defined in section 121.13, burglary in the
second degree as defined in section 140.25, robbery in the second degree
as  defined  in  section  160.10, criminal possession of a weapon in the
second degree as defined in section 265.03, criminal use of a firearm in
the second degree as defined in  section  265.08,  criminal  sale  of  a
firearm in the second degree as defined in section 265.12, criminal sale
of  a  firearm  with  the  aid  of a minor as defined in section 265.14,
soliciting or providing support for an act of  terrorism  in  the  first
degree  as defined in section 490.15, hindering prosecution of terrorism
in the  second  degree  as  defined  in  section  490.30,  and  criminal
possession of a chemical weapon or biological weapon in the third degree
as defined in section 490.37.
  (c)  Class  D violent felony offenses: an attempt to commit any of the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section 120.18, stalking in the first degree, as defined in  subdivision
one  of section 120.60, strangulation in the second degree as defined in
section 121.12, rape in the second degree as defined in section  130.30,
criminal  sexual  act in the second degree as defined in section 130.45,
sexual abuse in the first degree as defined in section 130.65, course of
sexual conduct against a child  in  the  second  degree  as  defined  in
section  130.80, aggravated sexual abuse in the [third] FOURTH degree as
defined in section 130.66, facilitating a sex offense with a  controlled
substance  as defined in section 130.90, criminal possession of a weapon
in the third degree as defined in subdivision five, six, seven or  eight
of  section  265.02,  criminal  sale of a firearm in the third degree as
defined in section 265.11, intimidating  a  victim  or  witness  in  the
second  degree  as  defined  in  section 215.16, soliciting or providing
support for an act of terrorism in  the  second  degree  as  defined  in
section  490.10,  and  making a terroristic threat as defined in section
490.20, falsely reporting an incident in the first degree as defined  in
section 240.60, placing a false bomb or hazardous substance in the first
degree  as  defined in section 240.62, placing a false bomb or hazardous
substance in a sports stadium or arena, mass transportation facility  or
enclosed  shopping  mall  as  defined  in section 240.63, and aggravated
unpermitted use of indoor pyrotechnics in the first degree as defined in
section 405.18.

S. 753                              3

  S 2. The penal law is amended by adding  three  new  sections  130.36,
130.51 and 130.71 to read as follows:
S 130.36 AGGRAVATED RAPE.
  A  MALE  IS GUILTY OF AGGRAVATED RAPE WHEN HE ENGAGES IN SEXUAL INTER-
COURSE WITH A FEMALE BY FORCIBLE COMPULSION AND WHEN, IN THE  COURSE  OF
THE  COMMISSION  OF  THE  CRIME  OR OF IMMEDIATE FLIGHT THEREFROM, HE OR
ANOTHER PARTICIPANT IN THE CRIME:
  1. IS ARMED WITH A DEADLY WEAPON; OR
  2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  3. CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT  A  PARTICIPANT  IN
THE CRIME; OR
  4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
  AGGRAVATED RAPE IS A CLASS A-II FELONY.
S 130.51 AGGRAVATED CRIMINAL SEXUAL ACT.
  A  PERSON  IS  GUILTY OF AGGRAVATED CRIMINAL SEXUAL ACT WHEN HE OR SHE
ENGAGES IN ORAL SEXUAL CONDUCT  OR  ANAL  SEXUAL  CONDUCT  WITH  ANOTHER
PERSON  BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF THE COMMISSION
OF THE CRIME OR OF  IMMEDIATE  FLIGHT  THEREFROM,  HE,  SHE  OR  ANOTHER
PARTICIPANT IN THE CRIME:
  1. IS ARMED WITH A DEADLY WEAPON; OR
  2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  3.  CAUSES  PHYSICAL  INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
THE CRIME; OR
  4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
  AGGRAVATED CRIMINAL SEXUAL ACT IS A CLASS A-II FELONY.
S 130.71 AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE.
  1. A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE IN THE  FIRST  DEGREE
WHEN  HE OR SHE INSERTS A FINGER OR FOREIGN OBJECT IN THE VAGINA, URETH-
RA, PENIS OR RECTUM OF ANOTHER PERSON  BY  FORCIBLE  COMPULSION  CAUSING
PHYSICAL INJURY TO SUCH PERSON AND WHEN, IN THE COURSE OF THE COMMISSION
OF  THE  CRIME  OR  OF  IMMEDIATE  FLIGHT  THEREFROM, HE, SHE OR ANOTHER
PARTICIPANT IN THE CRIME:
  (A) IS ARMED WITH A DEADLY WEAPON; OR
  (B) USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  (C) CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT A  PARTICIPANT  IN
THE CRIME; OR
  (D) DISPLAYS WHAT APPEARS TO BE A FIREARM.
  2.  CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE THE
PROVISIONS OF THIS SECTION.
  AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE IS A CLASS A-II FELONY.
  S 3. Section 130.65-a of the penal law, as added by chapter 1  of  the
laws  of  2000,  subdivision  1 as amended by chapter 485 of the laws of
2009, is amended to read as follows:
S 130.65-a Aggravated sexual abuse in the [fourth] FIFTH degree.
  1. A person is guilty of aggravated sexual abuse in the [fourth] FIFTH
degree when:
  (a) He or she inserts a foreign object in the vagina, urethra,  penis,
rectum  or  anus  of another person and the other person is incapable of
consent by reason of some factor other than being  less  than  seventeen
years old; or
  (b)  He  or she inserts a finger in the vagina, urethra, penis, rectum
or anus of another person causing physical injury  to  such  person  and
such  person is incapable of consent by reason of some factor other than
being less than seventeen years old.
  2. Conduct performed for a valid medical purpose does not violate  the
provisions of this section.

S. 753                              4

  Aggravated  sexual  abuse  in  the  [fourth] FIFTH degree is a class E
felony.
  S  4.  Section 130.66 of the penal law, as added by chapter 181 of the
laws of 1996, subdivisions 1 and 2 as amended by chapter 485 of the laws
of 2009, subdivision 3 as renumbered by chapter 1 of the laws  of  2000,
is amended to read as follows:
S 130.66 Aggravated sexual abuse in the [third] FOURTH degree.
  1. A person is guilty of aggravated sexual abuse in the [third] FOURTH
degree  when  he or she inserts a foreign object in the vagina, urethra,
penis, rectum or anus of another person:
  (a) By forcible compulsion; or
  (b) When the other person is incapable of consent by reason  of  being
physically helpless; or
  (c) When the other person is less than eleven years old.
  2. A person is guilty of aggravated sexual abuse in the [third] FOURTH
degree  when  he or she inserts a foreign object in the vagina, urethra,
penis, rectum or anus of another person causing physical injury to  such
person  and  such  person  is  incapable  of  consent by reason of being
mentally disabled or mentally incapacitated.
  3. Conduct performed for a valid medical purpose does not violate  the
provisions of this section.
  Aggravated  sexual  abuse  in  the  [third] FOURTH degree is a class D
felony.
  S 5. Section 130.67 of the penal law, as added by chapter 450  of  the
laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
ter 485 of the laws of 2009, is amended to read as follows:
S 130.67  Aggravated sexual abuse in the [second] THIRD degree.
  1.    A  person  is  guilty of aggravated sexual abuse in the [second]
THIRD degree when he or she inserts a finger  in  the  vagina,  urethra,
penis,  rectum or anus of another person causing physical injury to such
person:
  (a) By forcible compulsion; or
  (b) When the other person is incapable of consent by reason  of  being
physically helpless; or
  (c) When the other person is less than eleven years old.
  2.  Conduct performed for a valid medical purpose does not violate the
provisions of this section.
  Aggravated sexual abuse in the [second] THIRD  degree  is  a  class  C
felony.
  S 6. Section 130.70 of the penal law, as amended by chapter 450 of the
laws of 1988, the opening paragraph of subdivision 1 as amended by chap-
ter 485 of the laws of 2009, is amended to read as follows:
S 130.70 Aggravated sexual abuse in the [first] SECOND degree.
  1.    A  person  is  guilty  of aggravated sexual abuse in the [first]
SECOND degree when he or she inserts a foreign  object  in  the  vagina,
urethra, penis, rectum or anus of another person causing physical injury
to such person:
  (a) By forcible compulsion; or
  (b)  When  the other person is incapable of consent by reason of being
physically helpless; or
  (c) When the other person is less than eleven years old.
  2. Conduct performed for a valid medical purpose does not violate  the
provisions of this section.
  Aggravated  sexual  abuse  in  the  [first] SECOND degree is a class B
felony.

S. 753                              5

  S 7. Subdivisions 2 and 3 of section 720.10 of the criminal  procedure
law,  subdivision 2 as amended by chapter 416 of the laws of 1986, para-
graph (a) of subdivision 2 as amended by chapter 316 of the laws of 2006
and subdivision 3 as amended by chapter 264 of the  laws  of  2003,  are
amended to read as follows:
  2.    "Eligible  youth"  means  a  youth who is eligible to be found a
youthful offender.  Every youth is so eligible unless:
  (a) the conviction to be replaced by a youthful  offender  finding  is
for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
defined in subdivision forty-one of section 1.20, except as provided  in
subdivision  three,  or  (iii) rape in the first degree, criminal sexual
act in the first degree,  or  aggravated  sexual  abuse  IN  THE  SECOND
DEGREE, except as provided in subdivision three, or
  (b) such youth has previously been convicted and sentenced for a felo-
ny, or
  (c)    such  youth has previously been adjudicated a youthful offender
following conviction of a felony or has been  adjudicated  on  or  after
September  first,  nineteen  hundred seventy-eight a juvenile delinquent
who committed a designated felony act as defined  in  the  family  court
act.
  3.  Notwithstanding the provisions of subdivision two, a youth who has
been  convicted  of  an  armed  felony  offense  or of rape in the first
degree, criminal sexual act in the first degree,  or  aggravated  sexual
abuse  IN THE SECOND DEGREE is an eligible youth if the court determines
that one or more of the following factors exist: (i)  mitigating circum-
stances that bear directly upon  the  manner  in  which  the  crime  was
committed;  or  (ii) where the defendant was not the sole participant in
the crime, the defendant's participation was relatively  minor  although
not  so  minor as to constitute a defense to the prosecution.  Where the
court determines that the eligible youth is  a  youthful  offender,  the
court shall make a statement on the record of the reasons for its deter-
mination, a transcript of which shall be forwarded to the state division
of  criminal  justice  services,  to  be  kept  in  accordance  with the
provisions of subdivision three of section eight hundred  thirty-seven-a
of the executive law.
  S 8. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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