The New York State Senate

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

                                  8582

                            I N  S E N A T E

                              June 16, 2020
                               ___________

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

AN ACT to amend the penal law, in relation to establishing incapacity to
  consent when a person is a witness to or subject of  an  investigation
  under certain circumstances

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

  Section 1. 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] ADDICTION services AND SUPPORTS, 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  resi-
dent resides; or an officer or other employee, consultant, contractor or
volunteer  of  the  residential facility, who knows or reasonably should
know that the person is 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, contrac-
tor or volunteer providing services pursuant to a  contractual  arrange-
ment  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD14464-01-9

S. 8582                             2

with another service  recipient  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) IS A WITNESS TO OR VICTIM OF AN INCIDENT UNDER INVESTIGATION BY  A
POLICE  OFFICER,  PEACE  OFFICER OR OTHER LAW ENFORCEMENT OFFICIAL, OR A
SUSPECT OR PERSON OF INTEREST IN SUCH AN INVESTIGATION, AND THE ACTOR IS
A POLICE OFFICER, PEACE OFFICER OR OTHER LAW  ENFORCEMENT  OFFICIAL  WHO
EITHER:  (I)  IS PARTICIPATING IN THE INVESTIGATION OF SUCH INCIDENT; OR
(II) KNOWS, OR REASONABLY SHOULD KNOW, THAT AT THE TIME OF THE  OFFENSE,
SUCH  PERSON  WAS  A  WITNESS, VICTIM, SUSPECT, OR PERSON OF INTEREST IN
SUCH INVESTIGATION.
  § 2. Subdivision 4 of section 130.10 of the penal law, as  amended  by
section 2 of part JJ of the laws of 2018, 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, detained  or  otherwise
in custody of law enforcement under the circumstances described in para-
graph  (j)  of  subdivision  three  of section 130.05 of this article, A
WITNESS TO OR  SUBJECT  OF  AN  INVESTIGATION  UNDER  THE  CIRCUMSTANCES
DESCRIBED  IN  PARAGRAPH  (K)  OF SUBDIVISION THREE OF SECTION 130.05 OF
THIS ARTICLE, or committed to the care and custody or supervision 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.