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.