NY State Senate Bill 2017-S7708

Senate Bill S7708

2017-2018 Legislative Session

Relates to establishing incapacity to consent when a person is under arrest, detention or otherwise in actual custody

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 20, 2018	committed to rules
Mar 13, 2018	advanced to third reading
Mar 12, 2018	2nd report cal.
Mar 06, 2018	1st report cal.631
Feb 09, 2018	referred to codes

Votes

- Mar 6, 2018 - Codes Committee Vote
  S7708
  
  16
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Codes Committee Vote: Mar 6, 2018
      
      aye (16)
      
      Akshar
      
      Bailey
      
      Boyle
      
      Croci
      
      Gallivan
      
      Golden
      
      Griffo
      
      Hoylman-Sigal
      
      Kaminsky
      
      Krueger
      
      Lanza
      
      O'Mara
      
      Peralta
      
      Savino
      
      Serrano
      
      Tedisco

co-Sponsors

View additional co-sponsors

2017-S7708 (ACTIVE) - Details

See Assembly Version of this Bill:: A8823
Current Committee:: Senate Rules
Law Section:: Penal Law
Laws Affected:: Amd §§130.05 & 130.10, Pen L

2017-S7708 (ACTIVE) - Summary

Relates to establishing incapacity to consent when a person is under arrest, detention or otherwise in actual custody.

2017-S7708 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S7708

SPONSOR: LANZA
 
TITLE OF BILL:  An act to amend the penal law, in relation to estab-
lishing incapacity to consent when a person is under arrest, in
detention or otherwise in actual custody

 
PURPOSE OR GENERAL IDEA OF BILL:

Relates to establishing incapacity to consent when a person is under
arrest, detention or otherwise in actual custody.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill amends Subdivision 3 of Section 130.05 of the
Penal Law by adding a new paragraph (j) to establish an incapacity to
consent when a person is under arrest, detention or otherwise in the
actual custody of a police officer, peace officer or other law enforce-
ment official and the actor is a police officer, peace officer or other
law enforcement official who is responsible for effecting the arrest of
such person or maintaining such person in detention or actual custody;

or knows or reasonably should know, that such person is under such
arrest, detention or actual custody.

Section 2 of the bill amends Subdivision 4 of Section 130.10 of the
Penal Law to establish a similar incapacity to consent when the victim
is under seventeen years of age, mentally disabled, or is a client or
patient and the actor is a health care provider.

 
JUSTIFICATION:

On September 15, 2017, two Brooklyn detectives allegedly forced an 18
year-old woman to perform sex acts in exchange for being released with-
out being charged. The officers, attempting to use a loophole in the
state penal code, have claimed that the sex was consensual.

While state law prohibits sexual contact between corrections officers
and parole officers and those in their custody, the penal code does not
include a similar provision for police officers. This bill would amend
state law to ensure that incidents of sexual contact between a police
officer and someone under arrest, temporarily detained, or otherwise
subject to law enforcement activity would also be prohibited under the
penal code.

 
PRIOR LEGISLATIVE HISTORY:

This is a new bill.

 
FISCAL IMPACT:

None.

 
EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall become a
law.

2017-S7708 (ACTIVE) - Bill Text download pdf

                            
 
                     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

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