S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8734--A
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             October 20, 2017
                                ___________
 
 Introduced  by  M.  of  A.  PAULIN,  GALEF,  MOSLEY, CROUCH, DINOWITZ --
   Multi-Sponsored by -- M. of  A.  D'URSO,  SOLAGES  --  read  once  and
   referred to the Committee on Judiciary -- recommitted to the Committee
   on  Judiciary  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 civil rights law, in relation to creating a  private
   right  of  action for unconsented removal or tampering with a sexually
   protective device
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  civil  rights law is amended by adding a new section
 52-b to read as follows:
   § 52-B. PRIVATE RIGHT OF ACTION FOR UNCONSENTED REMOVAL  OR  TAMPERING
 WITH  A  SEXUALLY PROTECTIVE DEVICE. 1. ANY PERSON WHO ENGAGED IN SEXUAL
 INTERCOURSE, ORAL SEXUAL CONDUCT OR ANAL SEXUAL CONDUCT, AS  DEFINED  IN
 SECTION  130.00  OF THE PENAL LAW, WITH ANOTHER PERSON THAT WAS MUTUALLY
 AGREED UPON BY THE PARTIES INVOLVED WITH THE EXPLICIT UNDERSTANDING  AND
 KNOWLEDGE  THAT  A  SEXUALLY  PROTECTIVE  DEVICE  WOULD  BE USED TO HELP
 PREVENT  OR  SAFEGUARD  AGAINST  PREGNANCY  OR  A  SEXUALLY  TRANSMITTED
 INFECTION  SHALL HAVE A PRIVATE RIGHT OF ACTION FOR DAMAGES AGAINST SUCH
 OTHER PERSON UNDER ANY OF THE FOLLOWING CONDITIONS:
   (A) THE OTHER PERSON INTENTIONALLY  AND  WITHOUT  CONSENT  REMOVED  OR
 TAMPERED  WITH SUCH SEXUALLY PROTECTIVE DEVICE DURING SUCH SEXUAL INTER-
 COURSE, ORAL SEXUAL CONDUCT OR ANAL SEXUAL CONDUCT, IN A  MANNER  LIKELY
 TO RENDER SUCH DEVICE INEFFECTIVE FOR ITS COMMON PURPOSE;
   (B) THE OTHER PERSON INTENTIONALLY AND WITHOUT CONSENT USED A SEXUALLY
 PROTECTIVE DEVICE DURING SUCH SEXUAL INTERCOURSE, ORAL SEXUAL CONDUCT OR
 ANAL  SEXUAL  CONDUCT THAT SUCH OTHER PERSON KNEW HAD BEEN TAMPERED WITH
 IN A MANNER LIKELY TO RENDER SUCH  DEVICE  INEFFECTIVE  FOR  ITS  COMMON
 PURPOSE; OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13478-03-8

 A. 8734--A                          2
 
   (C)  THE  OTHER  PERSON INTENTIONALLY MISLED THE PERSON INTO BELIEVING
 THAT A SEXUALLY PROTECTIVE DEVICE WAS BEING USED BY  SUCH  OTHER  PERSON
 DURING  SUCH  SEXUAL  INTERCOURSE,  ORAL  SEXUAL  CONDUCT OR ANAL SEXUAL
 CONDUCT, AND SUCH SEXUALLY PROTECTIVE DEVICE WAS  KNOWN  BY  SUCH  OTHER
 PERSON TO BE EITHER NOT USED OR INOPERABLE.
   2.  PAST  CONSENT  TO  SEXUAL  ACTIVITY  WITHOUT THE USE OF A SEXUALLY
 PROTECTIVE DEVICE SHALL NOT ALONE CONSTITUTE CONSENT TO SEXUAL  ACTIVITY
 WITHOUT THE USE OF A SEXUALLY PROTECTIVE DEVICE AT ANY FUTURE TIME.
   3.  ANY  CLAIM  MADE  PURSUANT  TO THIS SECTION MUST MEET THE PLEADING
 REQUIREMENTS OF SUBDIVISION (B) OF RULE THREE THOUSAND  SIXTEEN  OF  THE
 CIVIL PRACTICE LAW AND RULES.
   4.  DAMAGES  RECOVERED  BY  A PLAINTIFF PURSUANT TO THIS SECTION SHALL
 INCLUDE COMPENSATORY DAMAGES.  IN ADDITION THERETO, THE  TRIER  OF  FACT
 MAY  AWARD PUNITIVE DAMAGES AND SUCH OTHER NON-MONETARY RELIEF AS MAY BE
 APPROPRIATE.
   5. NOTHING IN THIS SECTION SHALL BE DEEMED TO  ABROGATE  OR  OTHERWISE
 LIMIT ANY RIGHT OR REMEDY OTHERWISE CONFERRED BY FEDERAL OR STATE LAW.
   6. FOR PURPOSES OF THIS SECTION, THE TERM "SEXUALLY PROTECTIVE DEVICE"
 SHALL  MEAN  ANY  ONE  OF THE FOLLOWING INTENDED TO PREVENT PREGNANCY OR
 SEXUALLY TRANSMITTED  INFECTION:  MALE  OR  FEMALE  CONDOM,  SPERMICIDE,
 DIAPHRAGM,  CERVICAL  CAP,  CONTRACEPTIVE SPONGE, DENTAL DAM, OR ANOTHER
 PHYSICAL DEVICE.
   § 2. This act shall take effect on the ninetieth day  after  it  shall
 have  become  a  law, and shall apply to acts occurring on or after such
 date.