S T A T E O F N E W Y O R K
________________________________________________________________________
2043
2019-2020 Regular Sessions
I N A S S E M B L Y
January 22, 2019
___________
Introduced by M. of A. GUNTHER, GALEF, BENEDETTO, JAFFEE, MONTESANO,
STEC -- Multi-Sponsored by -- M. of A. BARCLAY, CRESPO, DAVILA,
GIGLIO, GOODELL, PERRY, RIVERA, THIELE -- read once and referred to
the Committee on Codes
AN ACT to amend the penal law, in relation to providing that an elemen-
tary or secondary school student shall be incapable of consenting to
sexual conduct with a school employee
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 130.00 of the penal law is amended by adding a new
subdivision 14 to read as follows:
14. "SCHOOL EMPLOYEE" SHALL MEAN ANY PERSON DEFINED AS AN "EMPLOYEE"
OR "VOLUNTEER" PURSUANT TO SECTION ELEVEN HUNDRED TWENTY-FIVE OF THE
EDUCATION LAW.
§ 2. Paragraphs (i) and (j) of subdivision 3 of section 130.05 of the
penal law, paragraph (i) as amended and paragraph (j) as added by
section 1 of part JJ of chapter 55 of the laws of 2018, are amended and
a new paragraph (k) is added to read as follows:
(i) a resident or inpatient of a residential facility operated,
licensed or certified by (i) the office of mental health; (ii) the
office for people with developmental disabilities; or (iii) the office
of alcoholism and substance abuse services, and the actor is an employee
of the facility not married to such resident or inpatient. For purposes
of this paragraph, "employee" means either: an employee of the agency
operating the residential facility, who knows or reasonably should know
that such person is a resident or inpatient of such facility and who
provides direct care services, case management services, medical or
other clinical services, habilitative services or direct supervision of
the residents in the facility in which the resident resides; or an offi-
cer or other employee, consultant, contractor or volunteer of the resi-
dential facility, who knows or reasonably should know that the person is
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01866-01-9
A. 2043 2
a resident of such facility and who is in direct contact with residents
or inpatients; provided, however, that the provisions of this paragraph
shall only apply to a consultant, contractor or volunteer providing
services pursuant to a contractual arrangement with the agency operating
the residential facility or, in the case of a volunteer, a written
agreement with such facility, provided that the person received written
notice concerning the provisions of this paragraph; provided further,
however, "employee" shall not include a person with a developmental
disability who is or was receiving services and is also an employee of a
service provider and who has sexual contact with another service recipi-
ent who is a consenting adult who has consented to such contact; [or]
(j) detained or otherwise in the 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 official who either: (i)
is detaining or maintaining custody of such person; or (ii) knows, or
reasonably should know, that at the time of the offense, such person was
detained or in custody[.]; OR
(K) A STUDENT AT AN ELEMENTARY OR SECONDARY SCHOOL, AND THE ACTOR:
(I) IS A SCHOOL EMPLOYEE AT THE SAME SCHOOL OR CO-LOCATED SCHOOL SUCH
STUDENT ATTENDS, AND
(II) IS EIGHTEEN YEARS OF AGE OR OLDER AND MORE THAN FOUR YEARS OLDER
THAN SUCH STUDENT AT THE TIME OF THE ACT, AND
(III) IS NOT MARRIED TO SUCH STUDENT, AND
(IV) KNOWS OR REASONABLY SHOULD KNOW THAT SUCH PERSON IS A STUDENT AT
SUCH SCHOOL OR CO-LOCATED SCHOOL, AND
(V) HE OR SHE IS NOT A STUDENT AT THE SAME SCHOOL.
§ 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.