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

                                  8202

                            I N  S E N A T E

                           September 30, 2016
                               ___________

Introduced  by  Sen.  ROBACH -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the penal law, in relation to elder abuse through social
  media

  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 260.40 to
read as follows:
S 260.40 UNLAWFUL POSTING OF  A  VULNERABLE  ELDERLY  PERSON  ON  SOCIAL
           MEDIA.
  A  PERSON IS GUILTY OF UNLAWFUL POSTING OF A VULNERABLE ELDERLY PERSON
ON SOCIAL MEDIA WHEN, BEING A CAREGIVER WHILE PERFORMING THEIR  DUTY  OF
CARE  FOR A VULNERABLE ELDERLY PERSON, HE OR SHE POSTS AN IMAGE OR VIDEO
OF SUCH PERSON ON SOCIAL MEDIA INCLUDING, BUT NOT LIMITED  TO  FACEBOOK,
YOUTUBE,  TWITTER, INSTAGRAM, SNAPCHAT, TUMBLR, FLICKR AND VINE, WITHOUT
SUCH PERSON'S CONSENT.
  1. THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS SECTION:
  (A) "FORCIBLE COMPULSION" MEANS TO COMPEL BY EITHER:
  (I) USE OF PHYSICAL FORCE; OR
  (II) A THREAT, EXPRESS OR IMPLIED, WHICH PLACES A PERSON  IN  FEAR  OF
IMMEDIATE  DEATH  OR  PHYSICAL  INJURY  TO  HIMSELF,  HERSELF OR ANOTHER
PERSON, OR IN FEAR THAT HE, SHE OR ANOTHER PERSON  WILL  IMMEDIATELY  BE
KIDNAPPED.
  (B)  "PHYSICAL HELPLESSNESS" MEANS THAT A PERSON IS UNCONSCIOUS OR FOR
ANY OTHER REASON IS PHYSICALLY UNABLE TO COMMUNICATE UNWILLINGNESS TO AN
ACT.
  (C) "MENTAL INCAPACITY" MEANS AN INDIVIDUAL DOES  NOT  COMPREHEND  THE
NATURE AND CONSEQUENCES OF WHAT HE OR SHE CONSENTS TO.
  (D)  "MENTAL  DISABILITY"  MEANS  THAT  A PERSON SUFFERS FROM A MENTAL
DISEASE OR DEFECT  WHICH  RENDERS  HIM  OR  HER  INCAPABLE  OF  INFORMED
CONSENT.
  (E)  "CAREGIVER" MEANS A PERSON WHO (I) ASSUMES RESPONSIBILITY FOR THE
CARE OF A VULNERABLE ELDERLY PERSON PURSUANT  TO  A  COURT  ORDER;  (II)
RECEIVES MONETARY OR OTHER VALUABLE CONSIDERATION FOR PROVIDING CARE FOR

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

                                                           LBD16097-03-6

S. 8202                             2

A  VULNERABLE  ELDERLY  PERSON;  (III) IS IDENTIFIED AS A CAREGIVER BY A
PATIENT UNDER THE PUBLIC HEALTH LAW WHO PROVIDES  AFTER-CARE  ASSISTANCE
TO  A  PATIENT LIVING IN HIS OR HER RESIDENCE INCLUDING, BUT NOT LIMITED
TO,  A  RELATIVE,  PARTNER,  FRIEND  OR  NEIGHBOR  WHO HAS A SIGNIFICANT
RELATIONSHIP WITH THE PATIENT; OR (IV) IS AN INFORMAL CAREGIVER SUCH  AS
A  FAMILY MEMBER, FRIEND, NEIGHBOR, OR OTHER NATURAL PERSON WHO NORMALLY
PROVIDES THE DAILY CARE OR SUPERVISION OF A  VULNERABLE  ELDERLY  PERSON
WHO  MAY,  BUT  NEED  NOT RESIDE IN THE SAME HOUSEHOLD AS THE VULNERABLE
ELDERLY PERSON.
  (F) "VULNERABLE ELDERLY PERSON" MEANS A PERSON SIXTY YEARS OF  AGE  OR
OLDER  WHO  IS  SUFFERING  FROM  A  DISEASE OR INFIRMITY ASSOCIATED WITH
ADVANCED  AGE  AND  MANIFESTED  BY  DEMONSTRABLE  PHYSICAL,  MENTAL   OR
EMOTIONAL  DYSFUNCTION  TO  THE  EXTENT  THAT THE PERSON IS INCAPABLE OF
ADEQUATELY PROVIDING FOR HIS OR HER OWN HEALTH OR PERSONAL CARE.
  2. LACK OF CONSENT UNDER THIS SECTION RESULTS FROM:
  (A) FORCIBLE COMPULSION;
  (B) PHYSICAL HELPLESSNESS;
  (C) MENTAL INCAPACITY;
  (D) MENTAL DISABILITY; OR
  (E) ANY CIRCUMSTANCE  IN  WHICH  THE  VICTIM  DOES  NOT  EXPRESSLY  OR
IMPLIEDLY ACQUIESCE IN THE ACTOR'S CONDUCT.
  UNLAWFUL  POSTING  OF A VULNERABLE ELDERLY PERSON ON SOCIAL MEDIA 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.