BILL NUMBER: S5070              REVISED MEMO 01/19/2018

SPONSOR: LANZA
 
TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to the rape shield law

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.

This measure would amend section 60.42 of the Criminal Procedure Law to
expand the protection of New York's rape shield law to include victims
of sex trafficking offenses.

Currently, the Criminal Procedure Law establishes a "rape shield law" in
prosecutions involving a sex offense (CPL 60.42). Rape shield laws
protect victims of sex offenses from having their past sexual conduct
raised in the prosecution of their abuser. Such laws were enacted as a
response to the widespread and improper tactic of using the victim's
prior sexual activity as a character attack, thus presenting the victim
to the jury as an immoral person and unworthy of belief.  New York's
rape shield law recognizes that a victim's prior sexual activity is, in
most circumstances, irrelevant to the issues at a trial for a sex
              

offense. In order to protect a defendant's constitutional right to
confront his or her accusers, the law provides several exceptions if the
defendant can establish the particular relevance that the victim's prior
sexual conduct has to the defense of the charges (see CPL 60.42). Nota-
bly, however, CPL 60.42 expressly limits a sex offense to an offense
"defined in article one hundred thirty of the penal law," thus excluding
sex trafficking offenses, which are codified in section 230.34 of the
Penal Law. As a result, in sex trafficking prosecutions, where key
witnesses are often trafficked victims, introduction of evidence of the
victim's prior sexual conduct is not prohibited by CPL 60.42. Instead,
cross examination of the trafficked victim's prior sexual conduct is
subject only to the sound discretion of the court to control the scope
of cross-examination, and the requirement that the defense establish
that the past sexual conduct is "relevant and admissible in the interest
of justice" (see CPL 60.43).  We believe that sex trafficking should be
recognized as a "sex offense" for the purpose of protection under the
rape shield law.

Both California and Washington D.C. provide explicit protection for
victims of sex trafficking from having their past sexual conduct,
including past prosecutions for prostitution, paraded before a jury.
California's statute provides that "(e)vidence of sexual history or
history of any commercial sexual act of a victim of human trafficking,
as defined in (the California) Penal Code, is inadmissible to attack the
credibility or impeach the character of the victim in any civil or crim-
inal proceeding" (Ca. Evidence Code § 1161(b)).  Similarly, Washington
D.C. enacted a statute that provides, "Pin a criminal case in which a
person is accused of trafficking in commercial sex, . . . sex traffick-
ing of children, . . . or benefitting financially from human traffick-
ing, . . . reputation or opinion evidence of the past sexual behavior of
the alleged victim is not admissible. Evidence of an alleged victim's
past sexual behavior other than reputation or opinion evidence also is
not admissible, unless such evidence other than reputation or opinion
evidence is admitted in accordance with (the Washington D.C. rape shield
law)), and is constitutionally required to be admitted" (D.C. Code §
22-1839).
The likelihood that the complainant in a sex trafficking case has a
history of prior unlawful sexual conduct is self-evident. Unlike crimes
that usually are unrelated to sexual misconduct (e.g., robbery,
burglary, homicide, etc.), charges of sex trafficking often will involve
victims with histories of prior sexual misconduct. It is therefore inev-
itable that a trafficker will seek to use the past sexual conduct of his
or her victim in ways that have no proper bearing upon the trafficker's
own guilt or innocence. The sad reality is that victims of sex traffick-
ing often are victimized over the course of months or years, often by
different traffickers. Although prior acts of prostitution or other
sexual conduct may superficially be relevant when testing a
complainant's current claim that he or she is being trafficked, repeated
victimization is, by itself, not a basis to allow impeachment. It would
be a terrible irony if the long term trafficking of a person is used by
the trafficker to defeat the very charge of trafficking being prose-
cuted. As is true in other sex offense prosecutions, evidence of a sex
trafficking victim's prior sexual conduct would continue to be admissi-
ble for a number of reasons outlined in current law including that the
victim was actually convicted of a prostitution offense within the past
three years (CPL 60.42 (2)) or where evidence of the prior sexual
conduct of the victim was "relevant and admissible in the interests of
justice" as determined by the court (CPL 60.42 (5)).  This measure would
simply treat the alleged victims of sex trafficking crimes in the same
way other alleged sex offense victims were treated with respect to prior
sexual conduct evidence.

This measure, which would have no fiscal impact, would take effect imme-
diately.

 
LEGISLATIVE HISTORY:

2017:  S.5070- Passed Senate.