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

                                   571

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2015
                               ___________

Introduced by M. of A. BRAUNSTEIN, BRINDISI, PAULIN, SCHIMEL, McDONOUGH,
  DUPREY,  MONTESANO,  SIMOTAS,  MORELLE,  BARRETT,  BENEDETTO, BORELLI,
  BLANKENBUSH, TENNEY, RAIA, BROOK-KRASNY, OTIS, FINCH, QUART, SALADINO,
  ORTIZ, SKOUFIS, CLARK -- Multi-Sponsored by -- M. of A. CROUCH, GALEF,
  MARKEY, McKEVITT, PALMESANO, RODRIGUEZ, SKARTADOS  --  read  once  and
  referred to the Committee on Codes

AN  ACT to amend the penal law, in relation to establishing the crime of
  non-consensual disclosure of sexually explicit images

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

  Section  1. The penal law is amended by adding a new section 250.70 to
read as follows:
S 250.70 NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES.
  A PERSON IS GUILTY OF NON-CONSENSUAL DISCLOSURE OF  SEXUALLY  EXPLICIT
IMAGES  WHEN  HE OR SHE  INTENTIONALLY  AND KNOWINGLY DISCLOSES A PHOTO-
GRAPH, FILM, VIDEOTAPE, RECORDING, OR  ANY  OTHER  REPRODUCTION  OF  THE
IMAGE  OF  ANOTHER  PERSON  WHOSE  INTIMATE  PARTS ARE EXPOSED OR WHO IS
ENGAGED IN AN ACT OF SEXUAL CONTACT WITHOUT SUCH PERSON'S CONSENT,  WHEN
A  REASONABLE PERSON WOULD HAVE KNOWN THAT THE PERSON DEPICTED WOULD NOT
HAVE CONSENTED TO SUCH DISCLOSURE, AND UNDER CIRCUMSTANCES IN WHICH  THE
PERSON  HAS  A  REASONABLE  EXPECTATION  OF  PRIVACY.   A PERSON WHO HAS
CONSENTED TO THE CAPTURE OR POSSESSION OF AN IMAGE WITHIN THE CONTEXT OF
A PRIVATE OR CONFIDENTIAL RELATIONSHIP RETAINS A REASONABLE  EXPECTATION
OF PRIVACY WITH REGARD TO DISCLOSURE BEYOND THAT RELATIONSHIP.
  1. FOR THE PURPOSES OF THIS SECTION:
  (A) "DISCLOSE" MEANS TO SELL, MANUFACTURE, GIVE, PROVIDE, LEND, TRADE,
MAIL, DELIVER, TRANSFER, PUBLISH, DISTRIBUTE, CIRCULATE, DISCLOSE, PRES-
ENT, EXHIBIT, ADVERTISE OR OFFER.
  (B)  "INTIMATE  PARTS" MEANS THE NAKED GENITALS, PUBIC AREA, BUTTOCKS,
OR FEMALE ADULT NIPPLE OF THE PERSON.

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

                                                           LBD02341-01-5

A. 571                              2

  (C) "SEXUAL CONTACT" MEANS SEXUAL INTERCOURSE, INCLUDING GENITAL-GENI-
TAL, ORAL-GENITAL, ANAL-GENITAL, OR ORAL-ANAL, WHETHER  BETWEEN  PERSONS
OF THE SAME OR OPPOSITE SEX.
  2. THIS SECTION SHALL NOT APPLY TO:
  (A)  LAWFUL  AND COMMON PRACTICES OF LAW ENFORCEMENT, CRIMINAL REPORT-
ING, OR LEGAL PROCEEDINGS, OR  DISCLOSURES  MADE  IN  THE  REPORTING  OF
UNLAWFUL ACTIVITY; OR
  (B)  SITUATIONS  INVOLVING  VOLUNTARY EXPOSURE IN PUBLIC OR COMMERCIAL
SETTINGS, OR DISCLOSURES MADE FOR A LEGITIMATE PUBLIC PURPOSE.
  NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES  IS  A  CLASS  A
MISDEMEANOR.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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

                                 571--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2015
                               ___________

Introduced by M. of A. BRAUNSTEIN, BRINDISI, PAULIN, SCHIMEL, McDONOUGH,
  DUPREY,  MONTESANO, SIMOTAS, MORELLE, BARRETT, BENEDETTO, BLANKENBUSH,
  TENNEY, RAIA, OTIS, FINCH, QUART,  SALADINO,  ORTIZ,  SKOUFIS,  CLARK,
  BRABENEC,  FRIEND  --  Multi-Sponsored  by  -- M. of A. CROUCH, GALEF,
  MARKEY, McKEVITT, PALMESANO, RODRIGUEZ, SKARTADOS  --  read  once  and
  referred  to the Committee on Codes -- recommitted to the Committee on
  Codes in  accordance  with  Assembly  Rule  3,  sec.  2  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT to amend the penal law, in relation to establishing the crime of
  non-consensual disclosure of sexually explicit images

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

  Section  1. The penal law is amended by adding two new sections 250.70
and 250.75 to read as follows:
S 250.70 NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES.
  A PERSON IS GUILTY OF NON-CONSENSUAL DISCLOSURE OF  SEXUALLY  EXPLICIT
IMAGES  WHEN  HE OR SHE  INTENTIONALLY  AND KNOWINGLY DISCLOSES A PHOTO-
GRAPH, FILM, VIDEOTAPE, RECORDING, OR  ANY  OTHER  REPRODUCTION  OF  THE
IMAGE  OF  ANOTHER  PERSON  WHOSE  INTIMATE  PARTS ARE EXPOSED OR WHO IS
ENGAGED IN AN ACT OF SEXUAL CONTACT WITHOUT SUCH PERSON'S CONSENT,  WHEN
A  REASONABLE PERSON WOULD HAVE KNOWN THAT THE PERSON DEPICTED WOULD NOT
HAVE CONSENTED TO SUCH DISCLOSURE, AND UNDER CIRCUMSTANCES IN WHICH  THE
PERSON  HAS  A  REASONABLE  EXPECTATION  OF  PRIVACY.   A PERSON WHO HAS
CONSENTED TO THE CAPTURE OR POSSESSION OF AN IMAGE WITHIN THE CONTEXT OF
A PRIVATE OR CONFIDENTIAL RELATIONSHIP RETAINS A REASONABLE  EXPECTATION
OF PRIVACY WITH REGARD TO DISCLOSURE BEYOND THAT RELATIONSHIP.
  1. FOR THE PURPOSES OF THIS SECTION:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02341-08-6

              

A. 571--A                           2

  (A) "DISCLOSE" MEANS TO SELL, MANUFACTURE, GIVE, PROVIDE, LEND, TRADE,
MAIL, DELIVER, TRANSFER, PUBLISH, DISTRIBUTE, CIRCULATE, DISCLOSE, PRES-
ENT, EXHIBIT, ADVERTISE OR OFFER.
  (B)  "INTIMATE  PARTS" MEANS THE NAKED GENITALS, PUBIC AREA, BUTTOCKS,
OR FEMALE ADULT NIPPLE OF THE PERSON.
  (C) "SEXUAL CONTACT" MEANS SEXUAL INTERCOURSE, INCLUDING GENITAL-GENI-
TAL, ORAL-GENITAL, ANAL-GENITAL, OR ORAL-ANAL, WHETHER  BETWEEN  PERSONS
OF THE SAME OR OPPOSITE SEX.
  2. THIS SECTION SHALL NOT APPLY TO:
  (A)  LAWFUL  AND COMMON PRACTICES OF LAW ENFORCEMENT, CRIMINAL REPORT-
ING, OR LEGAL PROCEEDINGS, OR  DISCLOSURES  MADE  IN  THE  REPORTING  OF
UNLAWFUL ACTIVITY; OR
  (B)  SITUATIONS  INVOLVING  VOLUNTARY EXPOSURE IN PUBLIC OR COMMERCIAL
SETTINGS, OR DISCLOSURES MADE FOR A LEGITIMATE PUBLIC PURPOSE.
  NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES  IS  A  CLASS  A
MISDEMEANOR.
S 250.75 CIVIL CAUSE OF ACTION FOR NON-CONSENSUAL DISCLOSURE OF SEXUALLY
           EXPLICIT IMAGES.
  1.  A  CIVIL  CAUSE  OF  ACTION  LIES  AGAINST A PERSON WHO DISCLOSES,
THREATENS TO DISCLOSE AN IMAGE OF ANOTHER PERSON IDENTIFIABLE  FROM  THE
IMAGE  ITSELF  OR INFORMATION DISPLAYED IN CONNECTION WITH THE IMAGE AND
WHOSE INTIMATE PARTS ARE EXPOSED OR IS ENGAGED IN SEXUAL CONDUCT WITHOUT
THAT OTHER PERSON'S CONSENT, IF THE ACTOR:
  (A) OBTAINED THE IMAGE  OR  IMAGES  UNDER  CIRCUMSTANCES  IN  WHICH  A
REASONABLE  PERSON WOULD KNOW OR UNDERSTAND THAT THE IMAGE WAS TO REMAIN
PRIVATE, INCLUDING BUT NOT LIMITED TO IMAGES SHARED WITHIN  THE  CONTEXT
OF  A  CONFIDENTIAL  RELATIONSHIP  THAT  WERE THEN DISCLOSED BEYOND SUCH
RELATIONSHIP; OR
  (B) KNOWINGLY OBTAINED THE IMAGE OR IMAGES UNDER  FALSE  PRETENSES  OR
WITHOUT  AUTHORIZATION  OR  BY  EXCEEDING AUTHORIZED ACCESS TO PROPERTY,
ACCOUNTS, MESSAGES, FILES, DEVICES, OR RESOURCES.
  2. THE FOLLOWING AFFIRMATIVE DEFENSE SHALL APPLY IF:
  (A) THE DISTRIBUTED MATERIAL  WAS  CREATED  OR  DISTRIBUTED  UNDER  AN
AGREEMENT BY THE PERSON APPEARING IN THE MATERIAL FOR ITS PUBLIC USE AND
DISTRIBUTION; OR
  (B)  THE  DISTRIBUTED MATERIAL CONSTITUTES A MATTER OF PUBLIC CONCERN,
LAWFUL AND COMMON PRACTICES  OF  LAW  ENFORCEMENT,  CRIMINAL  REPORTING,
LEGAL  PROCEEDINGS,  MEDICAL  TREATMENT,  OR  SCIENTIFIC  OR EDUCATIONAL
ACTIVITIES; OR
  (C) THE DISTRIBUTED MATERIAL  WAS  PHOTOGRAPHED,  FILMED,  VIDEOTAPED,
RECORDED,  OR  OTHERWISE  REPRODUCED IN A PUBLIC PLACE AND UNDER CIRCUM-
STANCES IN WHICH THE PERSON DEPICTED HAD NO  REASONABLE  EXPECTATION  OF
PRIVACY.
  3. IN ADDITION TO OTHER RELIEF AVAILABLE AT LAW, INCLUDING AN ORDER BY
THE  COURT  TO  DESTROY  ANY IMAGE OBTAINED OR DISCLOSED IN VIOLATION OF
THIS SECTION, AND TO PRESERVE DISCOVERABLE INFORMATION, AND  PRELIMINARY
AND PERMANENT INJUNCTIVE RELIEF, THE ACTOR SHALL BE LIABLE TO THE PLAIN-
TIFF FOR:
  (A)  ACTUAL  DAMAGES,  BUT  NOT  LESS  THAN  LIQUIDATED DAMAGES, TO BE
COMPUTED AT THE RATE OF ONE THOUSAND DOLLARS PER DAY FOR  EACH  DAY  THE
IMAGE  OR  IMAGES  WERE VIEWABLE OR EACH INSTANCE A THREAT TO DISTRIBUTE
WAS MADE OR AN IMAGE FRAUDULENTLY OBTAINED UP TO  THIRTY  DAYS,  OR  TEN
THOUSAND DOLLARS, WHICHEVER IS HIGHER; AND
  (B) PUNITIVE DAMAGES; AND
  (C) REASONABLE COURT COSTS AND ATTORNEYS' FEES.

A. 571--A                           3

  4.  IN  AN ACTION BROUGHT UNDER THIS SECTION, ALL IDENTIFYING INFORMA-
TION ABOUT THE PLAINTIFF  MAY  BE  REDACTED  FROM  PLEADINGS  AND  COURT
FILINGS  AND  THE PLAINTIFF MAY PROCEED UNDER PSEUDONYM; THE COURT SHALL
INFORM THE PLAINTIFF OF THE OPTION TO PROCEED  UNDER  PSEUDONYM  AT  THE
EARLIEST  POSSIBLE POINT AND SHALL MAINTAIN THE RECORDS IN A MANNER THAT
PROTECTS THE PLAINTIFF'S CONFIDENTIALITY.
  5. THE FOLLOWING DEFINITIONS SHALL APPLY:  (A) "PERSONAL  INFORMATION"
INCLUDES,  BUT  IS  NOT LIMITED TO, NAME OR ANY PART THEREOF, ADDRESS OR
ANY  PART  THEREOF,  AGE,  NAMES  OF  FAMILY  MEMBERS,  MARITAL  STATUS,
RELATIONSHIP  TO DEFENDANT, RACE OR ETHNIC BACKGROUND, EMPLOYER, SCHOOL,
OR URLS, SOCIAL MEDIA ACCOUNT USERNAMES, AND SCREENSHOTS RELATED TO  THE
CAUSE OF ACTION;
  (B) "ACTUAL DAMAGES" INCLUDES, BUT IS NOT LIMITED TO, PAIN AND SUFFER-
ING, EMOTIONAL DISTRESS, ECONOMIC DAMAGES, AND LOST EARNINGS.
  6. A CAUSE OF ACTION BROUGHT UNDER THIS SECTION MAY BE BROUGHT NO MORE
THAN FIVE YEARS AFTER THE LAST DISCLOSURE OR INCIDENT.
  7. THE ACTOR'S CLAIM THAT THE DEPICTED PERSON IS A PUBLIC FIGURE SHALL
NOT BE SUFFICIENT TO ESTABLISH THE AFFIRMATIVE DEFENSE THAT DISTRIBUTION
CONSTITUTES A MATTER OF PUBLIC CONCERN.
  8. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE THAT A CRIMI-
NAL  CHARGE  BE BROUGHT OR A CRIMINAL CONVICTION BE OBTAINED AS A CONDI-
TION OF BRINGING A CIVIL CAUSE OF ACTION OR RECEIVING A  CIVIL  JUDGMENT
PURSUANT  TO  THIS  SECTION  OR  BE CONSTRUED TO REQUIRE THAT ANY OF THE
RULES GOVERNING A CRIMINAL PROCEEDING BE APPLICABLE TO  ANY  SUCH  CIVIL
ACTION.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.