Senate Bill S4892

                                 BILL NUMBER:  S4892

 TITLE OF BILL :  An act to amend the correction law, in relation to
the duty to report sexual conduct by an employee with an inmate

 SUMMARY OF PROVISIONS :  A new Section 22-b would be added to the
Correction Law creating an affirmative duty for employees of local
correction departments to report any and all sexual conduct or
suspected sexual conduct they have knowledge of between a department
employee and an inmate. The failure to report the conduct would be a
Class A misdemeanor.

The definition of employee would include persons permitted entry to a
correctional facility pursuant to their duties as an employee of any
governmental agency, as a volunteer or under a contractual arrangement
with any governmental agency.

 REASONS FOR SUPPORT :  Current law does not impose an affirmative
duty on a department employee to report his or her knowledge or
reasonable suspicion of any sexual conduct between an inmate and a
local correction department employee.

This new section is similar to ones contained in "duty to report"
statutes throughout the country holding pediatricians and teachers,
among other professionals, responsible for any knowledge they have
regarding abuses against children.
              

Local correction departments are under a duty to protect and ensure
the welfare of all inmates under their care and custody. Inmates are
dependent upon the departments for the fulfillment of every basic
human need, including but not limited to, the provision of food,
clothing, shelter, exercise, medical care, and religious needs and
practices.  Inmates are under a legal duty to obey all lawful orders
given by a department employee.

Because of the authority that department employees wield, the
Legislature in 1996 changed penal law Section 130 to provide that an
inmate is incapable of consenting to sexual conduct with most
Department employees. Although instances of sexual relationships
between an employee and an inmate are infrequent, when they do occur,
they: (1) compromise the safety and security of the institution; (2)
are a potential source of grievous harm to the inmate; and (3)
discredit and demoralize the overwhelming majority of department
employees who are hard-working and perform their duties in a
professional manner.  Therefore, it is crucial that the department
have the necessary means to eliminate completely all such conduct.

While DNA technology has been an important tool in the departments'
arsenal to eradicate such behavior, it is not available in every
instance where sexual conduct may have taken place. Therefore the
departments must attempt to conduct investigations through other
means, i.e., interviews with inmates and employees. The placement of
an affirmative duty on all employees to report sexual conduct between
an inmate and an employee of which they have knowledge, or reason to
suspect, will further enhance the departments' efforts.

Furthermore, volunteers, contractors and employees of other
governmental agencies are routinely permitted access to correction
facilities pursuant to their duties and are given regular access to
inmates. For this reason, the definition of "employee" in this statute
includes them among those having a duty to report, and as persons
about whom a report may be issued.

Accordingly, the Mayor urges the earliest possible favorable
consideration of this proposal by the Legislature.

 LEGISLATIVE HISTORY :  S.5640 of 2005/2006, S.335 of 2007/2008

 EFFECTIVE DATE :  Sixtieth day after becoming law.