NY State Senate Bill 2019-S1045

Senate Bill S1045

2019-2020 Legislative Session

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

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Archive: Last Bill Status - Stricken

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 19, 2019	recommit, enacting clause stricken
Jan 10, 2019	referred to codes

co-Sponsors

2019-S1045 (ACTIVE) - Details

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 Other Legislative Sessions:: 2009-2010: S3412
2011-2012: S753
2013-2014: S2240
2015-2016: S2994
2017-2018: S830

2019-S1045 (ACTIVE) - 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.

2019-S1045 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S1045

SPONSOR: YOUNG
 
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 youth-
ful 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
criminal sexual act and aggravated sexual abuse in the first degree.

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 pros-
ecute 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 aggra-
vating 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:

2018: S.830 Committed to Rules
2017: S.830 Passed Senate
2016: S.2994-A Referred to Codes
2015: S.2994 Referred to Codes
2013, 2014: S.2240-A Referred to Codes
2011, 2012: S.753 Referred to Codes
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.

2019-S1045 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1045
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 10, 2019
                                ___________
 
 Introduced  by  Sens.  YOUNG,  FUNKE,  O'MARA, ORTT, 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 189 of the
 laws of 2018, paragraph (b) as amended by chapter 476  of  the  laws  of
 2018  and  paragraph  (c) as amended by chapter 368 of the laws of 2015,
 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, sex trafficking as defined in paragraphs (a)
 and (b) of subdivision five of section  230.34,  sex  trafficking  of  a
 child  as  defined  in  section  230.34-a, incest in the first degree as
 defined in section 255.27, criminal possession of a weapon in the  first
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD03937-02-9

 S. 1045                             2
 
 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 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, firefighter
 or emergency medical services professional as defined in section 120.08,
 assault on a judge as defined in section 120.09,  gang  assault  in  the
 second  degree  as defined in section 120.06, strangulation 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, aggravated  crimi-
 nal  possession  of a weapon as defined in section 265.19, 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 chemi-
 cal  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, labor trafficking as defined  in
 paragraphs  (a) and (b) of subdivision three of section 135.35, criminal
 possession of a weapon in the third degree  as  defined  in  subdivision
 five, six, seven, eight, nine or ten 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

 S. 1045                             3

 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.
   §  2.  The  penal  law is amended by adding three new sections 130.36,
 130.51 and 130.71 to read as follows:
 § 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.
 § 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.
 § 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.
   §  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:
 § 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

 S. 1045                             4
 
 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.
   Aggravated sexual abuse in the [fourth] FIFTH  degree  is  a  class  E
 felony.
   §  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:
 § 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.
   § 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:
 § 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.
   § 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:
 § 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.

 S. 1045                             5
 
   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.
   § 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.
   § 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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Senate Bill S1045

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Sponsored By

Catharine Young

Archive: Last Bill Status - Stricken

co-Sponsors

Rich Funke

Thomas F. O'Mara

Robert G. Ortt

Michael H. Ranzenhofer

2019-S1045 (ACTIVE) - Details

2019-S1045 (ACTIVE) - Summary

2019-S1045 (ACTIVE) - Sponsor Memo

2019-S1045 (ACTIVE) - Bill Text download pdf

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