Senate Bill S5455A

                                BILL NUMBER:S5455

TITLE OF BILL:

An act
to amend the penal law, in relation to sexual conduct between an
employee and an inmate

PURPOSE OF BILL:

This bill would amend Penal Law (PL) § 130.05 to impose criminal
liability on any employee of the Department of Corrections and
Community Supervision (DOCCS) who (i) works in a State correctional
facility and engages in sexual conduct with an inmate confined in
such facility, or (ii) supervises a person released on community
supervision, and engages in sexual conduct with such person, as well
as any Office of Mental Health (OMH) employee who works in a State
correctional facility and engages in sexual conduct with an inmate.
The bill would also impose criminal liability on any employee of the
Office of Children and Family Services (OCFS) who works in an OCFS
residential facility, and engages in sexual conduct with a person
committed to the care and custody of OCFS and in residential care. In
addition, the bill would amend PL § 130.10(4) to make marriage to the
victim a defense to such crime. Finally, the bill would make
technical amendments to reflect the merger of the Department of
Correctional Services and the Division of Parole into the Department
              

of Corrections and Community Supervision.

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend PL § 130.05(3)(e) to expand the
definition of "employee" to include any employee of DOCCS or the
Office of Mental Health (OMH) who works in a state correctional
facility in which the victim is an inmate at the time of the
offense, any employee of DOCCS who supervises persons released on
community supervision, and supervises the victim at the time of the
offense.

Section 2 of the bill would amend PL § 130.05(g) to expand the
definition of employee to impose criminal liability upon any employee
of OCFS who works in an OCFS operated residential facility and engages
in a sexual relationship with a person committed to or placed with
OCFS and in residential care.

Section 3 of the bill would amend PL § 130.10(4) to make marriage a
defense for any prosecution under Article 130 of the Penal Law in
which the victim's lack of consent is based solely on the fact that
the defendant is an employee and the victim is an inmate, supervise,
or a resident of an OCFS-operated residential facility.

Section 4 of the bill would provide that the bill would become
effective on the first day of November after the bill becomes law,
and would apply to offenses occurring on or after that date.

EXISTING LAW:


Under current PL § 130.05, it is an element of every sex offense
defined in Article 130 of the Penal Law that the sexual act was
committed without the consent of the victim. PL § 130.05(3) lists
groups of persons who are incapable of consent The list includes
persons committed to the care and custody of DOCCS, where the
perpetrator is an employee, not married to the victim, who knows or
reasonably should know that the victim is committed to the custody
and care of DOCS. The term "employee" is defined in § PL 130.05(3)(e)
as a DOCCS employee who performs professional duties in a state
correctional facility consisting of providing custody, medical or
mental health services, counseling services, education programs, or
vocational training for inmates. For volunteers, outside contractors
and other persons providing direct services to inmates pursuant to a
written agreement, the inability of an inmate to consent to a sexual
relationship is limited to those persons who provide direct services
to inmates in the correctional facility in which the victim is
confined at the time of the offense. See PL § 130(3)(e)(iv). For the
Office of Children and Family Services, including residential
facilities, the tern1 "employee" is defined in the same
manner as a DOCCS employee who provides professional duties.
PL § 130(3)(g).

At least one court has held that PL § 130.05(3)(e) does not cover all
DOCCS employees working in correctional facilities, but only those
with a certain level of authority and responsibility over inmate
security.

PRIOR LEGISLATIVE HISTORY:

A similar bill was submitted to the Legislature in 2010, but not
introduced.

A similar bill was introduced in the Senate in 2003-2004 (S.6441) and
referred to Codes. The same bill was again introduced in the
2005-2006 session (S.4032), was passed by the Senate, delivered to
the Assembly, and referred to Assembly Codes.

In the 2007-2008 session, a related bill (A.4332-A) adding volunteers
and contract employees to the definition of "employee" was introduced
at the request of the City of New York, substituted by S.5012-A, and
signed into law as Chapter 335 of the Laws of2007.

STATEMENT IN SUPPORT:

DOCCS has for many years sought to send a clear message to its
employees that it will not tolerate any employee engaging in sexual
activity with an inmate, and has made several efforts to enact
legislation in the area. The existing statute contains ambiguities
and some employees of both DOCCS and other State agencies have
escaped criminal responsibility for conduct that included a sexual
relationship with an inmate. For example, multiple charges were
recently dismissed by the court in three cases in St. Lawrence County
after the court found that evidence had not been presented to the
Grand Jury that the defendants met the statutory definition of
"employee." In one of the decisions, the court wrote that the
prosecution had not shown that the defendant, who had been indicted
for rape in the third degree, criminal sexual act in the third


degree, promoting prison contraband in the first degree for giving
the inmate a folding knife, and two counts of official misconduct,
had the "level of authority or responsibility with respect to
inmate security that is contemplated by the statue defining
situations in which an inmate is helpless." In another decision, the
court wrote "[i]t is axiomatic that the Penal Law is to be read
according to the fair meaning of its terms. The statute does not
declare that sexual conduct between any employee of the department of
corrections [sic] and an inmate is illegal."

This bill would amend the current lack of consent provisions and
clarify that criminal liability is imposed on any DOCCS employee who
works in a State correctional facility and engages in sexual conduct
with an inmate confined in the facility, any employee who supervises
a person released on community supervision who engages in sexual
conduct with a person they supervise, and any employee of OMH who
works in a State correctional facility, and engages in sexual conduct
with an inmate confined there. Under this bill, criminal liability
would attach regardless of an individual employee's job title. The
amendment is necessary because the potential for abuse is not just
limited to those employees who provide custody, medical and mental
health services to the inmate. Any DOCCS employee or outside employee
assigned to a facility has the potential to misuse his or her
official position to demand sexual favors. For example, such a person
could attempt to smuggle into the institution drugs or other
contraband that are highly valued by the inmate population, to induce
an inmate to enter into a sexual relationship with the transgressing
employee. The same reasoning applies to DOCCS employees who supervise
persons released to community supervision
with respect to their supervises, and to employees of OCFS with
respect to individuals committed to OCFS care and custody and in
residential care. Many OCFS residents were victims of child abuse,
including sexual abuse, prior to being placed or committed to OCFS
custody. This bill sends the message that further victimization of
these youth by any OCFS employee is absolutely unacceptable.

This bill also recognizes that marriage between the defendant and the
victim at the time of the act is an appropriate defense to such
crimes. Current PL, 130.05( e) and (f) make lack of marriage to the
victim an element of a crime that must be proved by a prosecutor. The
bill would remove this language from those sections, and instead make
marriage a defense to be raised by the defendant. This change is
appropriate for several reasons. Under PL, § 130.10(4), marriage is a
defense in cases based solely on lack of consent to the sexual
conduct where the victim is a client or a patient and the defendant
is a health care provider. There is no reason to treat DOCCS or OCFS
employees differently from health care providers.
Moreover, it is the defendant, not DOCCS or OCFS, who is most likely to
have evidence of his or her own marriage and should be the one
obligated to raise the defense. Final1y, because DOCCS policy
requires disclosure by employees of any relationships or dealings
with current or former inmates, it is extremely unlikely that a
DOCCS employee would be supervising his or her spouse in the
community, or working in the same correctional facility housing his
or her Spouse. It is, therefore, unduly burdensome to require
prosecutors to prove that a


defendant is not married to the victim where the defense has not even
been raised.

BUDGET IMPLICATIONS:

This bill has no budget implications.

EFFECTIVE DATE:

The bill would become effective on the first day of November after the
bill becomes law, and would apply to offenses occurring on or after
that date.

                                BILL NUMBER:S5455B

TITLE OF BILL:

An act
to amend the penal law, in relation to sexual conduct between an
employee and an inmate

PURPOSE OF BILL:

This bill would amend Penal Law (PL) § 130.05 to impose criminal
liability on any employee of the Department of Corrections and
Community Supervision (DOCCS) who (i) works in a State correctional
facility and engages in sexual conduct with an inmate confined in
such facility, or (ii) supervises a person released on community
supervision, and engages in sexual conduct with such person, as well
as any Office of Mental Health (OMH) employee who works in a State
correctional facility and engages in sexual conduct with an inmate.
The bill would also impose criminal liability on any employee of the
Office of Children and Family Services (OCFS) who works in an OCFS
residential facility, and engages in sexual conduct with a person
committed to the care and custody of OCFS and in residential care. In
addition, the bill would amend PL § 130.10(4) to make marriage to the
victim a defense to such crime. Finally, the bill would make
technical amendments to reflect the merger of the Department of
Correctional Services and the Division of Parole into the Department
              

of Corrections and Community Supervision.

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend PL § 130.05(3)(e) to expand the
definition of "employee" to include any employee of DOCCS or the
Office of Mental Health (OMH) who works in a state correctional
facility in which the victim is an inmate at the time of the
offense, any employee of DOCCS who supervises persons released on
community supervision, and supervises the victim at the time of the
offense.

Section 2 of the bill would amend PL § 130.05(g) to expand the
definition of employee to impose criminal liability upon any employee
of OCFS who works in an OCFS operated residential facility and engages
in a sexual relationship with a person committed to or placed with
OCFS and in residential care.

Section 3 of the bill would amend PL § 130.10(4) to make marriage a
defense for any prosecution under Article 130 of the Penal Law in
which the victim's lack of consent is based solely on the fact that
the defendant is an employee and the victim is an inmate, supervisee,
or a resident of an OCFS-operated residential facility.

Section 4 of the bill would provide that the bill would become
effective on the first day of November after the bill becomes law,
and would apply to offenses occurring on or after that date.

EXISTING LAW:


Under current PL § 130.05, it is an element of every sex offense
defined in Article 130 of the Penal Law that the sexual act was
committed without the consent of the victim. PL § 130.05(3) lists
groups of persons who are incapable of consent. The list includes
persons committed to the care and custody of DOCCS, where the
perpetrator is an employee, not married to the victim, who knows or
reasonably should know that the victim is committed to the custody
and care of DOCCS. The term "employee" is defined in § PL 130.05(3)(e)
as a DOCCS employee who performs professional duties in a state
correctional facility consisting of providing custody, medical or
mental health services, counseling services, education programs, or
vocational training for inmates. For volunteers, outside contractors
and other persons providing direct services to inmates pursuant to a
written agreement, the inability of an inmate to consent to a sexual
relationship is limited to those persons who provide direct services
to inmates in the correctional facility in which the victim is
confined at the time of the offense. See PL § 130(3)(e)(iv). For the
Office of Children and Family Services, including residential
facilities, the term "employee" is defined in the same
manner as a DOCCS employee who provides professional duties.
PL § 130(3)(g).

At least one court has held that PL § 130.05(3)(e) does not cover all
DOCCS employees working in correctional facilities, but only those
with a certain level of authority and responsibility over inmate
security.

PRIOR LEGISLATIVE HISTORY:

A similar bill was submitted to the Legislature in 2010, but not
introduced.

A similar bill was introduced in the Senate in 2003-2004 (S.6441) and
referred to Codes. The same bill was again introduced in the
2005-2006 session (S.4032), was passed by the Senate, delivered to
the Assembly, and referred to Assembly Codes.

In the 2007-2008 session, a related bill (A.4332-A) adding volunteers
and contract employees to the definition of "employee" was introduced
at the request of the City of New York, substituted by S.5012-A, and
signed into law as Chapter 335 of the Laws of 2007.

STATEMENT IN SUPPORT:

DOCCS has for many years sought to send a clear message to its
employees that it will not tolerate any employee engaging in sexual
activity with an inmate, and has made several efforts to enact
legislation in the area. The existing statute contains ambiguities
and some employees of both DOCCS and other State agencies have
escaped criminal responsibility for conduct that included a sexual
relationship with an inmate. For example, multiple charges were
recently dismissed by the court in three cases in St. Lawrence County
after the court found that evidence had not been presented to the
Grand Jury that the defendants met the statutory definition of
"employee." In one of the decisions, the court wrote that the
prosecution had not shown that the defendant, who had been indicted
for rape in the third degree, criminal sexual act in the third


degree, promoting prison contraband in the first degree for giving
the inmate a folding knife, and two counts of official misconduct,
had the "level of authority or responsibility with respect to
inmate security that is contemplated by the statute defining
situations in which an inmate is helpless." In another decision, the
court wrote "it is axiomatic that the Penal Law is to be read
according to the fair meaning of its terms. The statute does not
declare that sexual conduct between any employee of the department of
corrections sic and an inmate is illegal."

This bill would amend the current lack of consent provisions and
clarify that criminal liability is imposed on any DOCCS employee who
works in a State correctional facility and engages in sexual conduct
with an inmate confined in the facility, any employee who supervises
a person released on community supervision who engages in sexual
conduct with a person they supervise, and any employee of OMH who
works in a State correctional facility, and engages in sexual conduct
with an inmate confined there. Under this bill, criminal liability
would attach regardless of an individual employee's job title. The
amendment is necessary because the potential for abuse is not just
limited to those employees who provide custody, medical and mental
health services to the inmate. Any DOCCS employee or outside employee
assigned to a facility has the potential to misuse his or her
official position to demand sexual favors. For example, such a person
could attempt to smuggle into the institution drugs or other
contraband that are highly valued by the inmate population, to induce
an inmate to enter into a sexual relationship with the transgressing
employee. The same reasoning applies to DOCCS employees who supervise
persons released to community supervision
with respect to their supervisees, and to employees of OCFS with
respect to individuals committed to OCFS care and custody and in
residential care. Many OCFS residents were victims of child abuse,
including sexual abuse, prior to being placed or committed to OCFS
custody. This bill sends the message that further victimization of
these youth by any OCFS employee is absolutely unacceptable.

This bill also recognizes that marriage between the defendant and the
victim at the time of the act is an appropriate defense to such
crimes. Current PL, 130.05(e) and (f) make lack of marriage to the
victim an element of a crime that must be proved by a prosecutor. The
bill would remove this language from those sections, and instead make
marriage a defense to be raised by the defendant. This change is
appropriate for several reasons. Under PL, § 130.10(4), marriage is a
defense in cases based solely on lack of consent to the sexual
conduct where the victim is a client or a patient and the defendant
is a health care provider. There is no reason to treat DOCCS or OCFS
employees differently from health care providers.
Moreover, it is the defendant, not DOCCS or OCFS, who is most likely to
have evidence of his or her own marriage and should be the one
obligated to raise the defense. Final1y, because DOCCS policy
requires disclosure by employees of any relationships or dealings
with current or former inmates, it is extremely unlikely that a
DOCCS employee would be supervising his or her spouse in the
community, or working in the same correctional facility housing his
or her spouse. It is, therefore, unduly burdensome to require
prosecutors to prove that a


defendant is not married to the victim where the defense has not even
been raised.

BUDGET IMPLICATIONS:

This bill has no budget implications.

EFFECTIVE DATE:

The bill would become effective on the first day of November after the
bill becomes law, and would apply to offenses occurring on or after
that date.