S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                 11188--A
 
                           I N  A S S E M B L Y
 
                               June 13, 2018
                                ___________
 
 Introduced  by COMMITTEE ON RULES -- (at request of M. of A. Braunstein,
   Gunther) -- read once and  referred  to  the  Committee  on  Codes  --
   reported  and  referred  to  the Committee on Rules -- Rules Committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to the Committee on Rules
 
 AN ACT to amend the penal law, the criminal procedure  law,  the  family
   court  act  and  the civil rights law, in relation to establishing the
   crime of unlawful dissemination or publication of an intimate image
 
   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 245.15 to
 read as follows:
 § 245.15 UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE.
   1. A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OR PUBLICATION  OF  AN
 INTIMATE IMAGE WHEN:
   (A)  WITH INTENT TO CAUSE MATERIAL HARM TO THE EMOTIONAL, FINANCIAL OR
 PHYSICAL WELFARE OF ANOTHER PERSON, HE OR SHE INTENTIONALLY DISSEMINATES
 OR PUBLISHES A STILL OR VIDEO IMAGE OF SUCH OTHER PERSON, WHO  IS  IDEN-
 TIFIABLE  FROM  THE  STILL  OR  VIDEO  IMAGE  ITSELF OR FROM INFORMATION
 DISPLAYED IN CONNECTION WITH THE STILL  OR  VIDEO  IMAGE,  WITHOUT  SUCH
 OTHER PERSON'S CONSENT, WHICH DEPICTS:
   (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH OTHER PERSON; OR
   (II) SUCH OTHER PERSON ENGAGING IN SEXUAL CONDUCT AS DEFINED IN SUBDI-
 VISION TEN OF SECTION 130.00 OF THIS CHAPTER WITH ANOTHER PERSON; AND
   (B)  SUCH  STILL OR VIDEO IMAGE WAS TAKEN UNDER CIRCUMSTANCES WHEN THE
 PERSON DEPICTED HAD A REASONABLE EXPECTATION OF PRIVACY  AND  THE  ACTOR
 KNEW  OR  REASONABLY  SHOULD HAVE KNOWN THE PERSON DEPICTED INTENDED FOR
 THE STILL OR VIDEO IMAGE TO REMAIN PRIVATE INDEFINITELY,  REGARDLESS  OF
 WHETHER THE ACTOR WAS PRESENT WHEN THE STILL OR VIDEO IMAGE WAS TAKEN.
   2.  FOR PURPOSES OF THIS SECTION "INTIMATE PART" MEANS THE NAKED GENI-
 TALS, PUBIC AREA, ANUS OR FEMALE NIPPLE OF THE PERSON.
   2-A. FOR PURPOSES OF THIS SECTION "DISSEMINATE"  AND  "PUBLISH"  SHALL
 HAVE THE SAME MEANING AS DEFINED IN SECTION 250.40 OF THIS TITLE.
   3. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD16264-08-8

 A. 11188--A                         2
 
   (A) THE REPORTING OF UNLAWFUL CONDUCT;
   (B)  DISSEMINATION  OR  PUBLICATION  OF  AN INTIMATE IMAGE MADE DURING
 LAWFUL AND COMMON PRACTICES OF LAW  ENFORCEMENT,  LEGAL  PROCEEDINGS  OR
 MEDICAL TREATMENT;
   (C) IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING;
   (D)  DISSEMINATION  OR  PUBLICATION  OF  AN  INTIMATE IMAGE MADE FOR A
 LEGITIMATE PUBLIC PURPOSE;
   (E) PROVIDERS OF AN INTERACTIVE COMPUTER SERVICE FOR  IMAGES  PROVIDED
 BY  ANOTHER  PERSON.    FOR  PURPOSES  OF THIS SUBDIVISION, "INTERACTIVE
 COMPUTER SERVICE" SHALL MEAN: ANY INFORMATION SERVICE, SYSTEM OR  ACCESS
 SOFTWARE  PROVIDER  THAT PROVIDES OR ENABLES COMPUTER ACCESS BY MULTIPLE
 USERS TO A COMPUTER SERVER, INCLUDING SPECIFICALLY A SERVICE  OR  SYSTEM
 THAT  PROVIDES  ACCESS  TO  THE  INTERNET  AND  SUCH SYSTEMS OPERATED OR
 SERVICES OFFERED BY LIBRARIES OR EDUCATIONAL INSTITUTIONS.
   UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE IS A  CLASS
 A MISDEMEANOR.
   §  2.  The opening paragraph of subdivision 1 of section 530.11 of the
 criminal procedure law, as amended by section 4 of part NN of chapter 55
 of the laws of 2018, is amended to read as follows:
   The family court and the criminal courts shall have concurrent  juris-
 diction  over  any  proceeding  concerning  acts  which would constitute
 disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
 IMAGE, harassment in the first degree, harassment in the second  degree,
 aggravated  harassment in the second degree, sexual misconduct, forcible
 touching, sexual abuse in the third degree, sexual abuse in  the  second
 degree  as  set  forth in subdivision one of section 130.60 of the penal
 law, stalking in the first degree, stalking in the second degree, stalk-
 ing in the  third  degree,  stalking  in  the  fourth  degree,  criminal
 mischief,  menacing  in the second degree, menacing in the third degree,
 reckless endangerment, strangulation in the first degree,  strangulation
 in  the second degree, criminal obstruction of breathing or blood circu-
 lation, assault in the second degree, assault in the  third  degree,  an
 attempted assault, identity theft in the first degree, identity theft in
 the  second degree, identity theft in the third degree, grand larceny in
 the fourth degree, grand larceny in the third degree,  coercion  in  the
 second  degree  or coercion in the third degree as set forth in subdivi-
 sions one, two and three of section 135.60  of  the  penal  law  between
 spouses  or  former  spouses,  or  between  parent  and child or between
 members of the same family or household except that  if  the  respondent
 would not be criminally responsible by reason of age pursuant to section
 30.00  of  the  penal  law,  then  the family court shall have exclusive
 jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
 election  to  proceed  in  family court, the criminal court shall not be
 divested of jurisdiction to hear a family offense proceeding pursuant to
 this  section.  For  purposes  of  this  section,  "disorderly  conduct"
 includes disorderly conduct not in a public place.  For purposes of this
 section,  "members  of  the  same family or household" with respect to a
 proceeding in the criminal courts shall mean the following:
   § 3. The opening paragraph of subdivision 1  of  section  812  of  the
 family  court  act,  as amended by section 5 of part NN of chapter 55 of
 the laws of 2018, is amended to read as follows:
   The family court and the criminal courts shall have concurrent  juris-
 diction  over  any  proceeding  concerning  acts  which would constitute
 disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
 IMAGE, harassment in the first degree, harassment in the second  degree,
 aggravated  harassment in the second degree, sexual misconduct, forcible

 A. 11188--A                         3
 
 touching, sexual abuse in the third degree, sexual abuse in  the  second
 degree  as  set  forth in subdivision one of section 130.60 of the penal
 law, stalking in the first degree, stalking in the second degree, stalk-
 ing  in  the  third  degree,  stalking  in  the  fourth degree, criminal
 mischief, menacing in the second degree, menacing in the  third  degree,
 reckless endangerment, criminal obstruction of breathing or blood circu-
 lation,  strangulation  in the second degree, strangulation in the first
 degree, assault in the second degree, assault in the  third  degree,  an
 attempted assault, identity theft in the first degree, identity theft in
 the  second degree, identity theft in the third degree, grand larceny in
 the fourth degree, grand larceny in the third degree,  coercion  in  the
 second  degree  or coercion in the third degree as set forth in subdivi-
 sions one, two and three of section 135.60  of  the  penal  law  between
 spouses  or  former  spouses,  or  between  parent  and child or between
 members of the same family or household except that  if  the  respondent
 would not be criminally responsible by reason of age pursuant to section
 30.00  of  the  penal  law,  then  the family court shall have exclusive
 jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
 election  to  proceed  in  family court, the criminal court shall not be
 divested of jurisdiction to hear a family offense proceeding pursuant to
 this section. In any proceeding pursuant to this article, a court  shall
 not  deny  an  order of protection, or dismiss a petition, solely on the
 basis that the acts or events alleged are not relatively contemporaneous
 with the date of the petition, the conclusion of the fact-finding or the
 conclusion of the dispositional hearing. For purposes of  this  article,
 "disorderly  conduct" includes disorderly conduct not in a public place.
 For purposes of this article, "members of the same family or  household"
 shall mean the following:
   §  4.  The civil rights law is amended by adding a new section 52-b to
 read as follows:
   § 52-B. PRIVATE RIGHT OF ACTION FOR UNLAWFUL DISSEMINATION OR PUBLICA-
 TION OF AN INTIMATE IMAGE. 1. A. ANY WEBSITE OR INTERNET SERVICE PROVID-
 ER THAT HOSTS OR TRANSMITS A STILL OR  VIDEO  IMAGE,  VIEWABLE  IN  THIS
 STATE, TAKEN UNDER CIRCUMSTANCES WHERE THE PERSON DEPICTED HAD A REASON-
 ABLE EXPECTATION OF PRIVACY, WHICH DEPICTS:
   (I)  AN  UNCLOTHED  OR  EXPOSED  INTIMATE  PART, AS DEFINED IN SECTION
 245.15 OF THE PENAL LAW, OF A RESIDENT OF THIS STATE; OR
   (II) A RESIDENT OF THIS STATE ENGAGING IN SEXUAL CONDUCT AS DEFINED IN
 SUBDIVISION TEN OF SECTION 130.00 OF THE PENAL LAW WITH ANOTHER  PERSON;
 AND
   B.  SUCH  STILL  OR  VIDEO  IMAGE IS HOSTED OR TRANSMITTED WITHOUT THE
 CONSENT OF SUCH RESIDENT OF THIS STATE, SHALL  BE  SUBJECT  TO  PERSONAL
 JURISDICTION  IN  A  CIVIL  ACTION  IN  THIS STATE TO THE MAXIMUM EXTENT
 PERMITTED UNDER THE UNITED STATES CONSTITUTION AND FEDERAL LAW.
   2. REGARDLESS OF WHETHER OR NOT THE ORIGINAL STILL OR VIDEO IMAGE  WAS
 CONSENSUALLY OBTAINED, A PERSON DEPICTED IN A STILL OR VIDEO IMAGE SHALL
 HAVE  A  CAUSE  OF  ACTION AGAINST AN INDIVIDUAL WHO, FOR THE PURPOSE OF
 HARASSING, ANNOYING OR ALARMING SUCH PERSON, DISSEMINATED OR  PUBLISHED,
 OR  THREATENED  TO  DISSEMINATE  OR  PUBLISH, SUCH STILL OR VIDEO IMAGE,
 WHERE SUCH IMAGE:
   A. WAS TAKEN WHEN SUCH PERSON HAD A REASONABLE EXPECTATION OF PRIVACY;
 AND
   B. DEPICTS (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF  SUCH  PERSON;
 OR  (II)  SUCH PERSON ENGAGING IN SEXUAL CONDUCT, AS DEFINED IN SUBDIVI-
 SION TEN OF SECTION 130.00 OF THE PENAL LAW, WITH ANOTHER PERSON; AND

 A. 11188--A                         4
 
   C. WAS DISSEMINATED OR PUBLISHED, OR THREATENED TO BE DISSEMINATED  OR
 PUBLISHED, WITHOUT THE CONSENT OF SUCH PERSON.
   3.  IN  ANY  ACTION  COMMENCED  PURSUANT  TO  SUBDIVISION  TWO OF THIS
 SECTION, THE FINDER OF FACT, IN ITS  DISCRETION,  MAY  AWARD  INJUNCTIVE
 RELIEF,  PUNITIVE  DAMAGES,  COMPENSATORY  DAMAGES  AND REASONABLE COURT
 COSTS AND ATTORNEY'S FEES.
   4. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
   A. THE REPORTING OF UNLAWFUL CONDUCT;
   B. DISSEMINATION OR PUBLICATION OF AN INTIMATE STILL  OR  VIDEO  IMAGE
 MADE  DURING  LAWFUL  AND  COMMON  PRACTICES  OF  LAW ENFORCEMENT, LEGAL
 PROCEEDINGS OR MEDICAL TREATMENT;
   C. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING; OR
   D. DISSEMINATION OR PUBLICATION OF AN INTIMATE STILL  OR  VIDEO  IMAGE
 MADE FOR A LEGITIMATE PUBLIC PURPOSE.
   5.  ANY  PERSON  DEPICTED  IN  A  STILL OR VIDEO IMAGE THAT DEPICTS AN
 UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH PERSON, OR SUCH PERSON ENGAG-
 ING IN SEXUAL CONDUCT AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF
 THE PENAL LAW WITH ANOTHER PERSON, WHICH IS  DISSEMINATED  OR  PUBLISHED
 WITHOUT  THE  CONSENT OF SUCH PERSON AND WHERE SUCH PERSON HAD A REASON-
 ABLE EXPECTATION OF PRIVACY, MAY MAINTAIN AN ACTION OR SPECIAL  PROCEED-
 ING FOR A COURT ORDER TO REQUIRE ANY WEBSITE OR INTERNET SERVICE PROVID-
 ER  THAT  IS  SUBJECT  TO PERSONAL JURISDICTION UNDER SUBDIVISION ONE OF
 THIS SECTION TO PERMANENTLY REMOVE SUCH STILL OR VIDEO IMAGE.
   6. A CAUSE OF ACTION OR SPECIAL PROCEEDING UNDER THIS SECTION SHALL BE
 COMMENCED THE LATER OF EITHER:
   A. THREE YEARS AFTER THE DISSEMINATION OR PUBLICATION OF AN IMAGE; OR
   B. ONE YEAR FROM THE DATE A PERSON  DISCOVERS,  OR  REASONABLY  SHOULD
 HAVE DISCOVERED, THE DISSEMINATION OR PUBLICATION OF SUCH IMAGE.
   7. NOTHING HEREIN SHALL BE READ TO REQUIRE A PRIOR CRIMINAL COMPLAINT,
 PROSECUTION  OR  CONVICTION  TO  ESTABLISH  THE ELEMENTS OF THE CAUSE OF
 ACTION PROVIDED FOR BY THIS SECTION.
   8. THE PROVISIONS OF THIS SECTION ARE IN ADDITION TO,  BUT  SHALL  NOT
 SUPERSEDE, ANY OTHER RIGHTS OR REMEDIES AVAILABLE IN LAW OR EQUITY.
   9.  IF  ANY PROVISION OF THIS SECTION OR ITS APPLICATION TO ANY PERSON
 OR CIRCUMSTANCE IS HELD INVALID, THE INVALIDITY SHALL NOT  AFFECT  OTHER
 PROVISIONS  OR  APPLICATIONS  OF  THIS SECTION WHICH CAN BE GIVEN EFFECT
 WITHOUT THE INVALID PROVISION  OR  APPLICATION,  AND  TO  THIS  END  THE
 PROVISIONS OF THIS SECTION ARE SEVERABLE.
   §  5.  This  act  shall take effect on the sixtieth day after it shall
 have become a law; provided, however, that:
   (a) if section 4 of part NN of chapter 55 of the laws  of  2018  shall
 not have taken effect on or before such effective date, then section two
 of this act shall take effect on the same date and in the same manner as
 such section of such chapter of the laws of 2018, takes effect; and
   (b)  if  section  5 of part NN of chapter 55 of the laws of 2018 shall
 not have taken effect on or before such  effective  date,  then  section
 three  of  this  act  shall take effect on the same date and in the same
 manner as such section of such  chapter  of  the  laws  of  2018,  takes
 effect.