S T A T E   O F   N E W   Y O R K
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                                  8449

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              June 15, 2011
                               ___________

Introduced  by  M.  of  A.  AUBRY  --  (at  request of the Department of
  Corrections and Community Supervision) -- read once  and  referred  to
  the Committee on Codes

AN  ACT to amend the penal law, in relation to sexual conduct between an
  employee and an inmate

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

  Section  1.  Paragraph  (e)  of subdivision 3 of section 130.05 of the
penal law, as amended by section 127-q of subpart B of part C of chapter
62 of the laws of 2011, is amended to read as follows:
  (e) committed to the care and custody  OR  SUPERVISION  of  the  state
department  of  corrections  and community supervision or a hospital, as
such term is defined in subdivision two of section four hundred  of  the
correction  law,  and  the  actor  is  an employee[, not married to such
person,] who knows or reasonably should know that such person is commit-
ted to the care and custody OR SUPERVISION of such department or  hospi-
tal. For purposes of this paragraph, "employee" means (i) an employee of
the  state  department  of corrections and community supervision who, AS
PART OF HIS OR HER EMPLOYMENT, performs [professional] duties: (A) in  a
state  correctional facility IN WHICH THE VICTIM IS CONFINED AT THE TIME
OF THE OFFENSE consisting of providing custody, medical or mental health
services, counseling services,  educational  programs,  [or]  vocational
training  [for],  INSTITUTIONAL PAROLE SERVICES OR DIRECT SUPERVISION TO
inmates; or
  (B) [in a state correctional facility and who  provides  institutional
parole  services]  OF  SUPERVISING  PERSONS RELEASED ON COMMUNITY SUPER-
VISION AND SUPERVISES THE VICTIM AT THE  TIME  OF  THE  OFFENSE  OR  HAS
SUPERVISED  THE  VICTIM  AND  THE VICTIM IS STILL UNDER COMMUNITY SUPER-
VISION AT THE TIME OF THE OFFENSE; or
  (ii) an employee of the office of mental health who, AS PART OF HIS OR
HER EMPLOYMENT, performs [professional] duties in a  state  correctional

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09356-09-1
              

A. 8449                             2

facility  or  hospital,  as  such  term is defined in subdivision two of
section four hundred of the  correction  law  IN  WHICH  THE  INMATE  IS
CONFINED  AT  THE  TIME OF THE OFFENSE, consisting of providing custody,
[or]  medical  or mental health services [for], OR DIRECT SUPERVISION TO
such inmates; or
  (iii) a person, including a volunteer, providing  direct  services  to
inmates  in  [the]  A state correctional facility in which the victim is
confined at the time of the offense pursuant to a  contractual  arrange-
ment  with  the  state department of [correctional services] CORRECTIONS
AND COMMUNITY SUPERVISION or, in the case  of  a  volunteer,  a  written
agreement  with such department, provided that the person received writ-
ten notice concerning the provisions of this paragraph; or
  S 2. Paragraph (g) of subdivision 3 of section  130.05  of  the  penal
law,  as amended by chapter 1 of the laws of 2000, is amended to read as
follows:
  (g) committed to or placed with the  office  of  children  and  family
services  and  in  residential  care,  and the actor is an employee, not
married to such person, who knows or reasonably should  know  that  such
person is committed to or placed with such office of children and family
services  and  in  residential  care.  For  purposes  of this paragraph,
"employee" means an employee  of  the  office  of  children  and  family
services  or of a residential facility IN WHICH SUCH PERSON IS COMMITTED
TO OR PLACED AT THE TIME OF THE OFFENSE who,  AS  PART  OF  HIS  OR  HER
EMPLOYMENT,  performs duties consisting of providing custody, medical or
mental health services, counseling services, educational services,  [or]
vocational training [for], OR DIRECT SUPERVISION TO persons committed to
or  placed  [with]  IN  A RESIDENTIAL FACILITY OPERATED BY the office of
children and family services [and in residential care]; or
  S 3. Subdivision 4 of section 130.10 of the penal  law,  as  added  by
chapter 264 of the laws of 2003, is amended to read as follows:
  4. In any prosecution under this article in which the victim's lack of
consent  is  based solely on his or her incapacity to consent because he
or she was less than seventeen years  old,  mentally  disabled,  [or]  a
client  or patient and the actor is a health care provider, OR COMMITTED
TO THE CARE AND CUSTODY  OR  SUPERVISION  OF  THE  STATE  DEPARTMENT  OF
CORRECTIONS  AND COMMUNITY SUPERVISION OR A HOSPITAL AND THE ACTOR IS AN
EMPLOYEE, it shall be a defense that the defendant was  married  to  the
victim as defined in subdivision four of section 130.00 of this article.
  S 4. This act shall take effect on the first of November next succeed-
ing  the  date  on  which  it shall have become a law and shall apply to
offenses committed on or after such date.