The New York State Senate

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

                                  5177

                       2019-2020 Regular Sessions

                          I N  A S S E M B L Y

                            February 7, 2019
                               ___________

Introduced by M. of A. WALKER -- read once and referred to the Committee
  on Codes

AN ACT to amend the civil practice law and rules, the criminal procedure
  law,  the  executive  law, and the legislative law, in relation to the
  use in evidence of the fact of possession or presence on the  premises
  of  condoms  and  other sexual and reproductive health devices; and to
  repeal paragraph (d) of subdivision 1 of section 160.10 of the  crimi-
  nal procedure law relating thereto

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

  Section 1. This act shall be known and may be cited as the "End crimi-
nalization of condoms act".
  § 2. Legislative findings. The legislature hereby finds that promoting
and protecting health and respecting and  fulfilling  human  rights  are
necessarily  linked,  and  that  health-oriented  and  rights-based  law
enforcement efforts are central to the effective provision of government
services for the benefit of the people of the State. Article 17, section
3 of the New York constitution requires that the legislature protect and
promote the health of the inhabitants of  this  state  as  a  matter  of
public  concern.  Despite  these provisions, for purposes of prosecuting
certain criminal, civil and administrative  offenses,  reproductive  and
sexual  health  tools, including condoms, are currently being destroyed,
confiscated, or used as  evidence  by  law  enforcement  officers.  This
legislation is intended to strengthen the public health of all New York-
ers,  including the most vulnerable, while preserving the ability of law
enforcement to prosecute other crimes such as  felony  sexual  offenses.
The  purpose  of this bill is to avoid the disparate impact of the prac-
tice of citing condoms and other reproductive and sexual health tools as
evidence upon survivors  of  trafficking  and  people  who  are  or  are
profiled as being engaged in the sex trades.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03439-02-9

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  §  3.  The  civil  practice  law  and rules is amended by adding a new
section 4519-a to read as follows:
  § 4519-A. POSSESSION OF REPRODUCTIVE OR SEXUAL HEALTH DEVICES; RECEIPT
INTO EVIDENCE.  1. THE FACT OF POSSESSION OF A CONDOM OR OTHER REPRODUC-
TIVE  OR  SEXUAL  HEALTH  DEVICE  MAY NOT BE RECEIVED IN EVIDENCE IN ANY
TRIAL, HEARING OR PROCEEDING PURSUANT  TO  SUBDIVISION  ONE  OF  SECTION
TWELVE  AND  ARTICLE TEN OF THE MULTIPLE DWELLING LAW, SECTIONS TWELVE-A
AND TWENTY-THREE HUNDRED TWENTY OF THE PUBLIC HEALTH  LAW,  SECTION  TWO
HUNDRED  THIRTY-ONE  OF  THE  REAL  PROPERTY  LAW OR SUBDIVISION FIVE OF
SECTION SEVEN HUNDRED ELEVEN AND SECTION SEVEN HUNDRED  FIFTEEN  OF  THE
REAL  PROPERTY  ACTIONS AND PROCEEDINGS LAW, OR BY ANY LAW, LOCAL LAW OR
ORDINANCE OF A POLITICAL SUBDIVISION OF THIS STATE, OR BY ANY WORD, RULE
OR REGULATION OF ANY GOVERNMENTAL INSTRUMENTALITY AUTHORIZED BY  LAW  TO
ADOPT  THE  SAME  AS EVIDENCE OF PROSTITUTION, PATRONIZING A PROSTITUTE,
PROMOTING PROSTITUTION, PERMITTING PROSTITUTION, MAINTAINING A  PREMISES
FOR  PROSTITUTION,  LEWDNESS  OR ASSIGNATION, MAINTAINING A BAWDY HOUSE,
COMPELLING PROSTITUTION, OR SEX TRAFFICKING.
  2. "REPRODUCTIVE OR SEXUAL HEALTH DEVICE" SHALL INCLUDE ANY CONTRACEP-
TIVE OR OTHER TOOL USED TO PREVENT  UNWANTED  PREGNANCY  OR  THE  TRANS-
MISSION OF HIV OR OTHER SEXUALLY TRANSMITTED DISEASES, INCLUDING BUT NOT
LIMITED  TO  MALE  CONDOMS,  FEMALE  CONDOMS,  LUBRICANTS,  PRE-EXPOSURE
PROPHYLAXIS ("PREP"), POST-EXPOSURE PROPHYLAXIS ("PEP"), HIV ANTI-RETRO-
VIRAL MEDICATION, SPERMICIDE, HORMONAL METHODS, EMERGENCY CONTRACEPTION,
DIAPHRAGM, CERVICAL CAP, OR SPONGE.
  § 4. Section 60.47 of the criminal procedure law, as added by  section
2  of  part  I  of chapter 57 of the laws of 2015, is amended to read as
follows:
§ 60.47 Possession of condoms OR OTHER  REPRODUCTIVE  OR  SEXUAL  HEALTH
          DEVICE; receipt into evidence.
  1.  Evidence that a person was in possession of one or more condoms OR
OTHER REPRODUCTIVE OR SEXUAL HEALTH DEVICE may not be  admitted  at  any
trial,  hearing,  or  other  proceeding  in  a  prosecution for [section
230.00] ANY OFFENSE, OR AN ATTEMPT TO COMMIT  ANY  OFFENSE,  DEFINED  IN
ARTICLE  TWO  HUNDRED  THIRTY  or  section  240.37  of the penal law, OR
SECTION SIXTY-FIVE HUNDRED TWELVE OF THE  EDUCATION  LAW,  OR  ANY  LAW,
LOCAL  LAW OR ORDINANCE OF A POLITICAL SUBDIVISION OF THIS STATE, OR ANY
WORD, RULE OR REGULATION OF ANY GOVERNMENTAL INSTRUMENTALITY  AUTHORIZED
BY LAW TO ADOPT THE SAME, for the purpose of establishing probable cause
for an arrest or proving any person's commission or attempted commission
of  such  offense,  AS  EVIDENCE  OF PROSTITUTION OR TRAFFICKING-RELATED
ACTIVITY.
  2. "REPRODUCTIVE OR SEXUAL HEALTH DEVICE" SHALL INCLUDE ANY CONTRACEP-
TIVE OR OTHER TOOL USED TO PREVENT  UNWANTED  PREGNANCY  OR  THE  TRANS-
MISSION OF HIV OR OTHER SEXUALLY TRANSMITTED DISEASES, INCLUDING BUT NOT
LIMITED TO MALE CONDOMS, FEMALE CONDOMS, LUBRICANT, PRE-EXPOSURE PROPHY-
LAXIS  ("PREP"),  POST-EXPOSURE PROPHYLAXIS ("PEP"), HIV ANTI-RETROVIRAL
MEDICATION,  SPERMICIDE,  HORMONAL  METHODS,  EMERGENCY   CONTRACEPTION,
DIAPHRAGM, CERVICAL CAP, OR SPONGE.
  §  5. Paragraph (d) of subdivision 1 of section 160.10 of the criminal
procedure law is REPEALED.
  § 6. Paragraph (c) of subdivision 1 of section 160.10 of the  criminal
procedure law, as amended by chapter 762 of the laws of 1971, is amended
to read as follows:
  (c) A misdemeanor defined outside the penal law which would constitute
a  felony  if  such  person  had a previous judgment of conviction for a
crime[; or].

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  § 7. The opening paragraph of subdivision 1, subdivision 2 and  subdi-
vision  3  of  section 160.55 of the criminal procedure law, the opening
paragraph of subdivision 1 as amended by chapter  169  of  the  laws  of
1994,  subdivision  2  as amended by chapter 476 of the laws of 2009 and
subdivision  3  as amended by chapter 249 of the laws of 1981 and renum-
bered by chapter 142 of the  laws  of  1991,  are  amended  to  read  as
follows:
  Upon  the  termination  of  a  criminal action or proceeding against a
person by the conviction of such person of a  traffic  infraction  or  a
violation,  other  than  [a violation of loitering as described in para-
graph (d) or (e) of subdivision one of section 160.10  of  this  chapter
or] the violation of operating a motor vehicle while ability impaired as
described in subdivision one of section eleven hundred ninety-two of the
vehicle  and  traffic law, unless the district attorney upon motion with
not less than five days notice to such person or  his  or  her  attorney
demonstrates  to  the  satisfaction  of  the court that the interests of
justice require otherwise, or the court on its own motion with not  less
than  five  days notice to such person or his or her attorney determines
that the interests of justice require otherwise and states  the  reasons
for  such  determination  on  the record, the clerk of the court wherein
such criminal action or  proceeding  was  terminated  shall  immediately
notify the commissioner of the division of criminal justice services and
the  heads  of all appropriate police departments and other law enforce-
ment agencies that the action has been terminated  by  such  conviction.
Upon receipt of notification of such termination:
  2.  A  report  of  the  termination  of  the  action  or proceeding by
conviction of a traffic violation or a violation other than [a violation
of loitering as described in paragraph (d) or (e) of subdivision one  of
section  160.10  of  this  title  or] the violation of operating a motor
vehicle while ability  impaired  as  described  in  subdivision  one  of
section  eleven hundred ninety-two of the vehicle and traffic law, shall
be sufficient notice of sealing to the commissioner of the  division  of
criminal  justice  services  unless  the  report also indicates that the
court directed that the  record  not  be  sealed  in  the  interests  of
justice.  Where  the court has determined pursuant to subdivision one of
this section that sealing is not in the interests of justice, the  clerk
of  the  court  shall  include notification of that determination in any
report to such division of the disposition of the action or  proceeding.
When the defendant has been found guilty of a violation of harassment in
the  second degree and it was determined pursuant to subdivision eight-a
of section 170.10 of  this  title  that  such  violation  was  committed
against  a  member of the same family or household as the defendant, the
clerk of the court shall include notification of that  determination  in
any report to such division of the disposition of the action or proceed-
ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d)
of subdivision one of this section.
  3.  A  person  against whom a criminal action or proceeding was termi-
nated by such person's conviction of a traffic infraction  or  violation
other  than  [a  violation of loitering as described in paragraph (d) or
(e) of subdivision one  of  section  160.10  of  this  chapter  or]  the
violation  of  operating  a  motor  vehicle  while  ability  impaired as
described in subdivision one of section eleven hundred ninety-two of the
vehicle and traffic law, prior to the effective date  of  this  section,
may  upon  motion apply to the court in which such termination occurred,
upon not less than twenty days notice to the district attorney,  for  an
order granting to such person the relief set forth in subdivision one of

A. 5177                             4

this section, and such order shall be granted unless the district attor-
ney  demonstrates to the satisfaction of the court that the interests of
justice require otherwise.
  §  8.  Section  841  of  the  executive law is amended by adding a new
subdivision 7-b to read as follows:
  7-B. TAKE SUCH STEPS AS MAY BE NECESSARY TO  ENSURE  THAT  ALL  POLICE
OFFICERS  AND  PEACE OFFICERS CERTIFIED PURSUANT TO SUBDIVISION THREE OF
THIS SECTION RECEIVE APPROPRIATE INSTRUCTION REGARDING  THE  EVIDENTIARY
PROHIBITION SET FORTH IN SECTION 60.47 OF THE CRIMINAL PROCEDURE LAW AND
SECTION  FORTY-FIVE  HUNDRED  NINETEEN-A  OF  THE CIVIL PRACTICE LAW AND
RULES RELATING TO THE USE OF CONDOMS AND OTHER  REPRODUCTIVE  OR  SEXUAL
HEALTH  DEVICES  AS EVIDENCE IN CERTAIN TRIALS, HEARINGS OR PROCEEDINGS,
OR AS A BASIS FOR PROBABLE CAUSE FOR ARREST, INCLUDING THAT UNAUTHORIZED
SEIZURE OR CONFISCATION OF CONDOMS  AND  OTHER  REPRODUCTIVE  OR  SEXUAL
HEALTH DEVICES IS A BREACH OF PUBLIC POLICY.
  § 9. The legislative law is amended by adding a new section 49 to read
as follows:
  §  49.  REQUIREMENT  WITH RESPECT TO BILLS AMENDING CERTAIN LAWS WHICH
AFFECT HEALTH AND HUMAN RIGHTS. WHENEVER A COMMITTEE FAVORABLY REPORTS A
BILL TO AMEND ARTICLES TWO HUNDRED THIRTY OR SECTION 240.37 OF THE PENAL
LAW, OR, AT THE DISCRETION OF THE VOTING MAJORITY OF THE COMMITTEE,  ANY
BILL  WHICH,  IF PASSED, WOULD INCREASE OR DECREASE THE NUMBER OF ARRES-
TEES OR PRETRIAL OR SENTENCED POPULATION OF CORRECTIONAL  FACILITIES  IN
THIS  STATE, A MAJORITY OF THE COMMITTEE MEMBERS VOTING MAY REQUEST THAT
A HEALTH AND HUMAN RIGHTS IMPACT STATEMENT BE PREPARED.  THE LEGISLATURE
SHALL BY CONCURRENT RESOLUTION OF  THE  SENATE  AND  ASSEMBLY  PRESCRIBE
RULES  REQUIRING HEALTH AND HUMAN RIGHTS IMPACT STATEMENTS TO ACCOMPANY,
ON A SEPARATE FORM, BILLS AND AMENDMENTS TO BILLS AFTER SUCH BILLS  HAVE
BEEN REPORTED FROM COMMITTEE.  HEALTH AND HUMAN RIGHTS IMPACT STATEMENTS
SHALL  BE  PREPARED BEFORE THE BILL IS CONSIDERED FOR FINAL PASSAGE. THE
STATEMENT SHALL INDICATE WHETHER THE BILL WOULD HAVE A DISPARATE  IMPACT
BY   RACE,   ETHNICITY,   RELIGION,  AGE,  GENDER,  GENDER  IDENTITY  OR
EXPRESSION, SEXUAL ORIENTATION, IMMIGRATION STATUS, DISABILITY, OR HOUS-
ING STATUS COMPOSITION OF THE ARRESTEE AND CORRECTIONAL  FACILITY  POPU-
LATION  AND  AN EXPLANATION OF THAT IMPACT. ANY IMPACT STATEMENT PRINTED
WITH OR PREPARED FOR A BILL IS SOLELY FOR THE  PURPOSE  OF  INFORMATION,
SUMMARIZATION  AND  EXPLANATION FOR MEMBERS OF THE LEGISLATURE AND SHALL
NOT BE CONSTRUED TO REPRESENT THE INTENT OF THE  LEGISLATURE  OR  EITHER
CHAMBER  THEREOF  FOR  ANY PURPOSE. EACH IMPACT STATEMENT SHALL BEAR THE
FOLLOWING DISCLAIMER: "THE FOLLOWING  HEALTH  AND  HUMAN  RIGHTS  IMPACT
STATEMENT IS PREPARED FOR THE BENEFIT OF THE MEMBERS OF THE LEGISLATURE,
SOLELY  FOR  PURPOSES  OF INFORMATION, SUMMARIZATION AND EXPLANATION AND
DOES NOT REPRESENT THE INTENT OF THE LEGISLATURE OR EITHER CHAMBER THER-
EOF FOR ANY PURPOSE."
  § 10. The legislative law is amended by adding a new section  83-n  to
read as follows:
  §  83-N.  LEGISLATIVE  COMMISSION  ON HEALTH AND HUMAN RIGHTS.  1. THE
LEGISLATURE HEREBY  FINDS  THAT  PROMOTING  AND  PROTECTING  HEALTH  AND
RESPECTING  AND FULFILLING HUMAN RIGHTS ARE NECESSARILY LINKED, AND THAT
COORDINATION BETWEEN HEALTH AND LAW ENFORCEMENT EFFORTS  IS  CENTRAL  TO
THE  EFFECTIVE  PROVISION  OF GOVERNMENT SERVICES FOR THE BENEFIT OF THE
PEOPLE OF THE STATE.
  2. A LEGISLATIVE COMMISSION ON  HEALTH  AND  HUMAN  RIGHTS  IS  HEREBY
ESTABLISHED  TO  EXAMINE,  EVALUATE  AND MAKE RECOMMENDATIONS CONCERNING
RIGHTS-BASED APPROACHES TO HEALTH  AND  LAW  ENFORCEMENT  INTERVENTIONS.
THE  COMMISSION  SHALL  ACT  AS  A  MECHANISM FOR ONGOING AND MEANINGFUL

A. 5177                             5

INVOLVEMENT OF THOSE WHO ARE OR POTENTIALLY COULD BE  AFFECTED  BY  THIS
LAW, INCLUDING, BUT NOT LIMITED TO, SURVIVORS OF TRAFFICKING, PEOPLE WHO
ARE  OR ARE PROFILED AS BEING INVOLVED IN THE SEX TRADES, COMMUNITIES OF
COLOR,  LESBIAN,  GAY,  BISEXUAL  AND  TRANSGENDER PEOPLE, AND PEOPLE IN
CUSTODIAL SETTINGS. THE COMMISSION SHALL PROVIDE MONITORING  AND  EXPERT
PERSPECTIVE  TO THE LEGISLATURE, PROMOTING AWARENESS OF PROBLEMS IN REAL
TIME AS THEY EMERGE, INCREASE COOPERATION AND COLLABORATION BETWEEN  THE
INDIVIDUALS AND COMMUNITIES DIRECTLY IMPACTED AND THEIR LEGISLATORS, AND
ALLOW  LEGISLATORS TO SHARE RESPONSIBILITY FOR SUCCESSES AND FAILURES OF
THESE INITIATIVES. THE COMMISSION SHALL MAKE SUCH RECOMMENDATIONS AS  IT
MAY  DEEM  NECESSARY AS TO REGULATIONS, POLICIES, PROGRAMS, AND PROPOSED
LEGISLATION TO PROVIDE AN EQUITABLE SYSTEM OF PROVIDING FOR  THE  PUBLIC
SAFETY WHILE ALSO PROTECTING PUBLIC HEALTH, TO ENCOURAGE THE MOST EFFEC-
TIVE  USE OF STATE AND LOCAL RESOURCES, TO PRESERVE THE FISCAL INTEGRITY
OF BOTH STATE AND LOCAL  GOVERNMENT  HEALTH  SYSTEMS  AND  OTHERWISE  TO
STRENGTHEN THE FUNDAMENTAL HUMAN RIGHT TO HEALTH.
  3.  THE COMMISSION SHALL CONSIST OF TEN REPRESENTATIVES FROM ORGANIZA-
TIONS THAT PROMOTE ADVOCACY BY AND FOR  DIRECTLY  IMPACTED  COMMUNITIES.
FROM  AMONG THE MEMBERS SO APPOINTED, A CHAIRPERSON AND VICE CHAIRPERSON
SHALL BE DESIGNATED BY THE JOINT  ACTION  OF  THE  CHAIRPERSONS  OF  THE
SENATE  AND  ASSEMBLY  HEALTH COMMITTEES. ANY VACANCY THAT OCCURS IN THE
COMMISSION OR IN THE CHAIRMANSHIP OR VICE CHAIRMANSHIP SHALL  BE  FILLED
IN  THE SAME MANNER IN WHICH THE ORIGINAL APPOINTMENT OR DESIGNATION WAS
MADE.
  4. THE COMMISSION IN ADDITION TO THE ABOVE MENTIONED POWERS SHALL HAVE
ALL THE POWERS AND PRIVILEGES OF A  LEGISLATIVE  COMMITTEE  PURSUANT  TO
THIS CHAPTER.
  5.  FOR  THE  ACCOMPLISHMENT  OF  ITS PURPOSE, THE COMMISSION SHALL BE
AUTHORIZED AND EMPOWERED TO UNDERTAKE ANY  STUDY,  INQUIRY,  SURVEY,  OR
ANALYSIS  IT  MAY DEEM RELEVANT THROUGH ITS OWN PERSONNEL IN COOPERATION
WITH OR BY AGREEMENT WITH ANY OTHER PUBLIC OR PRIVATE AGENCY.
  6. THE COMMISSION MAY REQUIRE AND SHALL RECEIVE FROM  ANY  DEPARTMENT,
BOARD,  BUREAU,  COMMISSION, AUTHORITY, OFFICE, OR OTHER INSTRUMENTALITY
OF THE STATE, AND FROM ANY COUNTY, CITY, TOWN OR VILLAGE OF THIS  STATE,
SUCH  FACILITIES, ASSISTANCE, AND DATA, AS IT DEEMS NECESSARY OR DESIRA-
BLE FOR PROPER EXECUTION OF ITS POWERS AND DUTIES.
  7. THE COMMISSION MAY HOLD PUBLIC OR PRIVATE HEARINGS AND  SHALL  HAVE
FULL  POWERS TO SUBPOENA WITNESSES AND ALL RECORDS OR DATA IT SHALL DEEM
NECESSARY OR DESIRABLE PURSUANT TO THIS CHAPTER.
  8. THE MEMBERS OF THE COMMISSION SHALL SERVE ON A VOLUNTARY BASIS  AND
RECEIVE NO COMPENSATION FOR THEIR SERVICES.
  §  11.  Paragraph (f) of subdivision 4 of section 837 of the executive
law, as amended by chapter 169 of the laws of 1994, is amended and a new
paragraph (g) is added to read as follows:
  (f) Accomplish all of the functions, powers, and duties set  forth  in
paragraphs (a), (b), (c) and (d) of this subdivision with respect to the
processing  and  disposition  of cases involving violent felony offenses
specified in subdivision one of section 70.02 of the penal law[.]; AND
  (G) ACCOMPLISH ALL OF THE FUNCTIONS, POWERS, AND DUTIES SET  FORTH  IN
PARAGRAPHS (A), (B), (C) AND (D) OF THIS SUBDIVISION WITH RESPECT TO ALL
CHAPTERS  OF LAW RESULTING FROM LEGISLATIVE BILLS THAT HAVE BEEN SUBJECT
TO THE PROVISIONS OF  SECTIONS  FORTY-NINE  AND  EIGHTY-THREE-N  OF  THE
LEGISLATIVE  LAW. THE DIVISION SHALL PRESENT TO THE GOVERNOR, THE TEMPO-
RARY PRESIDENT OF THE SENATE, THE MINORITY LEADER  OF  THE  SENATE,  THE
SPEAKER OF THE ASSEMBLY AND THE MINORITY LEADER OF THE ASSEMBLY AN ANNU-

A. 5177                             6

AL  REPORT  CONTAINING  THE STATISTICS AND OTHER INFORMATION RELEVANT TO
THIS SUBDIVISION.
  §  12.  If any provision of this article or the application thereof to
any person, circumstances, or political subdivision  of  this  state  is
adjudged  invalid  by  a  court  of competent jurisdiction such judgment
shall not affect or impair the validity of the other provisions  of  the
article  or  the  application thereof to other political subdivisions of
this state, persons, and circumstances.
  § 13. This act shall take effect on the first of March next succeeding
the date on which it shall have become a law; provided, however that the
amendments to article 5-A of the legislative law made by section ten  of
this act shall not affect the repeal of such article and shall be deemed
repealed therewith.