S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9662
 
                           I N  A S S E M B L Y
 
                              March 28, 2022
                                ___________
 
 Introduced  by M. of A. WOERNER -- read once and referred to the Commit-
   tee on Codes
 
 AN ACT to amend the penal law, in relation to  aggravated  sexual  abuse
   against children under age thirteen; and to repeal section 130.65-a of
   the penal law relating to aggravated sexual abuse in the fourth degree
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Section 130.65-a of the penal law is REPEALED.
   § 2. Section 130.66 of the penal law, as added by chapter 181  of  the
 laws of 1996, subdivisions 1 and 2 as amended by chapter 485 of the laws
 of  2009,  and  subdivision  3 as renumbered by chapter 1 of the laws of
 2000, is amended to read as follows:
 § 130.66 Aggravated sexual abuse in the third degree.
   [1. A person is guilty of aggravated sexual abuse in the third  degree
 when  he  or she inserts a foreign object in the vagina, urethra, penis,
 rectum or anus of another person:
   (a) By forcible compulsion; or
   (b) When the other person is incapable of consent by reason  of  being
 physically helpless; or
   (c) When the other person is less than eleven years old.
   2.  A  person is guilty of aggravated sexual abuse in the third degree
 when he or she inserts a foreign object in the vagina,  urethra,  penis,
 rectum  or anus of another person causing physical injury to such person
 and such person is incapable of consent  by  reason  of  being  mentally
 disabled or mentally incapacitated.
   3.  Conduct performed for a valid medical purpose does not violate the
 provisions of this section] A PERSON  IS  GUILTY  OF  AGGRAVATED  SEXUAL
 ABUSE  IN  THE  THIRD  DEGREE WHEN SUCH PERSON INTENTIONALLY, AND FOR NO
 LEGITIMATE PURPOSE, TOUCHES THE VAGINA, VULVA, PENIS, RECTUM, OR ANUS OF
 ANOTHER PERSON USING A FINGER, HAND, OR FOREIGN OBJECT FOR  THE  PURPOSE
 OF  DEGRADING  OR  ABUSING SUCH PERSON, OR FOR THE PURPOSE OF GRATIFYING
 THE ACTOR'S SEXUAL DESIRE, WHEN SUCH OTHER PERSON IS UNDER  THE  AGE  OF
 THIRTEEN.
   Aggravated sexual abuse in the third degree is a class [D] E felony.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD15151-01-2
 A. 9662                             2
 
   §  3. Subdivision 1 and the closing paragraph of section 130.67 of the
 penal law, as added by chapter 450 of the  laws  of  1988,  the  opening
 paragraph  of  subdivision  1  as  amended by chapter 485 of the laws of
 2009, are amended to read as follows:
   1.  A person is guilty of aggravated sexual abuse in the second degree
 when [he or she] SUCH PERSON inserts a finger, HAND, OR  FOREIGN  OBJECT
 in the vagina, urethra, penis, rectum or anus of another person [causing
 physical injury to such person]:
   (a) By forcible compulsion; or
   (b) When the other  person  is incapable of consent by reason of being
 physically helpless; or
   (c) WHEN THE OTHER PERSON IS INCAPABLE OF CONSENT BY REASON  OF  BEING
 MENTALLY DISABLED OR MENTALLY INCAPACITATED; OR
   (D) When the other person is less than eleven years old; OR
   (E)  WHEN  THE  OTHER  PERSON  IS LESS THAN THIRTEEN YEARS OLD AND THE
 ACTOR IS EIGHTEEN YEARS OLD OR OLDER.
   Aggravated sexual abuse in the second degree is a class [C] D felony.
   § 4. Subdivision 1 of section 130.70 of the penal law, as  amended  by
 chapter  450 of the laws of 1988, the opening paragraph of subdivision 1
 as amended by chapter 485 of the laws of 2009, is  amended  to  read  as
 follows:
   1.  A  person is guilty of aggravated sexual abuse in the first degree
 when [he or she] SUCH PERSON inserts a FINGER, HAND, OR  foreign  object
 in  the vagina, urethra, penis, rectum or anus of another person causing
 physical injury to such person:
   (a) By forcible compulsion; or
   (b) When the other person is incapable of consent by reason  of  being
 physically helpless; or
   (c)  WHEN  THE OTHER PERSON IS INCAPABLE OF CONSENT BY REASON OF BEING
 MENTALLY DISABLED OR MENTALLY INCAPACITATED; OR
   (D) When the other person is less than eleven years old; OR
   (E) WHEN THE OTHER PERSON IS LESS THAN  THIRTEEN  YEARS  OLD  AND  THE
 ACTOR IS EIGHTEEN YEARS OLD OR OLDER.
   §  5.  Paragraph  (h)  of subdivision 3 of section 130.05 of the penal
 law, as amended by section 2 of part G of chapter 501  of  the  laws  of
 2012, is amended to read as follows:
   (h)  a  client  or  patient and the actor is a health care provider or
 mental health care provider charged with rape in  the  third  degree  as
 defined  in  section  130.25 OF THIS ARTICLE, criminal sexual act in the
 third degree as defined in section 130.40 OF  THIS  ARTICLE,  aggravated
 sexual  abuse  in  the  [fourth]  THIRD  degree  as  defined  in section
 [130.65-a] 130.66 OF THIS ARTICLE, or sexual abuse in the  third  degree
 as  defined  in  section  130.55  OF THIS ARTICLE, and the act of sexual
 conduct occurs during a treatment session, consultation,  interview,  or
 examination; or
   §  6.  Subdivision 3 of section 130.10 of the penal law, as amended by
 chapter 264 of the laws of 2003, is amended to read as follows:
   3. In any prosecution for the crime of rape in  the  third  degree  as
 defined  in  section  130.25 OF THIS ARTICLE, criminal sexual act in the
 third degree as defined in section 130.40 OF  THIS  ARTICLE,  aggravated
 sexual  abuse  in  the  [fourth]  THIRD  degree  as  defined  in section
 [130.65-a] 130.66 OF THIS ARTICLE, or sexual abuse in the  third  degree
 as  defined  in  section  130.55  OF THIS ARTICLE in which incapacity to
 consent is based on the circumstances set  forth  in  paragraph  (h)  of
 subdivision  three  of  section  130.05  of  this article it shall be an
 affirmative defense that the client or patient consented to such conduct
 A. 9662                             3
 
 charged after having been expressly advised by the health care or mental
 health care provider that such conduct was not  performed  for  a  valid
 medical purpose.
   § 7. This act shall take effect immediately.