The New York State Senate

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

                                  7708

                            I N  S E N A T E

                            February 9, 2018
                               ___________

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

AN ACT to amend the penal law, in relation to establishing incapacity to
  consent when a person is under arrest, in detention  or  otherwise  in
  actual custody

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 3 of section 130.05 of the penal law is amended
by adding a new paragraph (j) to read as follows:
  (J) UNDER ARREST, IN DETENTION OR OTHERWISE IN THE ACTUAL CUSTODY OF A
POLICE OFFICER, PEACE OFFICER OR OTHER LAW ENFORCEMENT OFFICIAL AND  THE
ACTOR  IS A POLICE OFFICER, PEACE OFFICER OR OTHER LAW ENFORCEMENT OFFI-
CIAL WHO EITHER: (I) IS RESPONSIBLE FOR EFFECTING  THE  ARREST  OF  SUCH
PERSON  OR  MAINTAINING  SUCH  PERSON IN DETENTION OR ACTUAL CUSTODY; OR
(II) KNOWS, OR REASONABLY SHOULD KNOW, THAT SUCH PERSON  IS  UNDER  SUCH
ARREST, DETENTION OR ACTUAL CUSTODY.
  §  2.  Subdivision 4 of section 130.10 of the penal law, as amended by
chapter 205 of the laws of 2011, is amended to read as follows:
  4. In any prosecution under this article in which the victim's lack of
consent is based solely on his or her incapacity to consent  because  he
or she was less than seventeen years old, mentally disabled, a client or
patient  and  the  actor  is  a  health  care provider, UNDER ARREST, IN
DETENTION OR OTHERWISE IN ACTUAL CUSTODY OF LAW  ENFORCEMENT  UNDER  THE
CIRCUMSTANCES DESCRIBED IN PARAGRAPH (J) OF SUBDIVISION THREE OF SECTION
130.05  OF  THIS ARTICLE, or committed to the care and custody or super-
vision of the state department of corrections and community  supervision
or  a  hospital and the actor is an employee, it shall be a defense that
the defendant was married to the victim as defined in  subdivision  four
of section 130.00 of this article.
  §  3.  This  act shall take effect on the thirtieth day after it shall
have become a law.


 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13726-04-8