Assembly Bill A10932

                                BILL NUMBER:A10932

TITLE  OF BILL:  An act to amend the penal law, in relation to the defi-
nition of sexual contact for the purposes of sex offenses and  endanger-
ing the welfare of a vulnerable elderly person

PURPOSE  OF BILL:   This measure eliminates the marital exception in the
penal law provisions relating to certain sex offenses  including  sexual
abuse in the second and third degrees and endangering the welfare of the
elderly.

SUMMARY  OF  PROVISIONS  OF  BILL:    Removes the exemptions for married
persons from the definition of the commission  of  "sexual  contact"  in
subdivision  3  of  section  130  of  the penal law and subdivision 2 of
section 260.31 of the penal law.

JUSTIFICATION:  The penal law offenses of sexual abuse in the second and
third degrees criminalize subjecting  another  to  nonconsensual  sexual
contact.  However, the current definition of sexual contact in PL 130.50
exempts  such  nonconsensual  contact  between  married persons, thereby
exempting married persons from the crime, even  where  there  is  forced
compulsion or non-consensual contact. See PL section 130.65 and 130.55.

In  2009,  New  York  enacted L. 2009 c.476, to add the crimes of sexual
abuse in the third and second degrees to those family offenses for which
a victim may obtain an order "of protection in family court.   This  law
              

was  passed  recognizing  that sexual violence crimes are perpetrated by
abusers against their intimate partners as part of the dynamic of  power
and control, and that such crimes constitute domestic violence. However,
the  marital  exception  in  the penal law would preclude the ability of
victims of domestic violence who are married to their abuser from avail-
ing themselves of the full protections of our domestic violence laws.

Furthermore, PL section 260.32 and 260.34 penalize non-consensual sexual
contact by a caregiver against a vulnerable elderly person. A  caregiver
may  be  a spouse. However, subdivision 2 of section 260.31 of the penal
law exempts such non-consensual sexual contact between married couples.

In 1984, the Court of Appeals held that there was no rational basis  for
distinguishing  between marital rape and non-marital rape, and therefore
declared the marital exception for rape in the first degree  and  sodomy
in  the first degree unconstitutional. See People v.  Liberta, 64 N.Y.2d
152, 485 N.Y.S.2d 207, 474 N.E.2d  567(1984).  In  1992,  the  Appellate
Division  for  the  Second Department extended the holding in Liberta to
sexual abuse in the first degree. The court ruled that sexual  abuse  in
the  first  degree  is  a  criminal  act  regardless of the relationship
between the actor and the victim. See People v. Orvath, 183 A.D.2d  915,
584 N.Y.S.2d 148 (1992).

It  is  well  established that spouses have no right to commit crimes in
the name of conjugal visits or familial relations.  This  measure  would
remove  the marital exception in our current penal law, thereby enabling

married couples to avail equal and full protection of New  York's  penal
and domestic violence laws,

LEGISLATIVE  HISTORY:  New bill, 2010 but similar to A.9938 '10 - Passed
Assembly.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  None.

EFFECTIVE DATE: Immediately.