Senate Bill S5745

                                
 
BILL NUMBER: S5745

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the penal law, in relation to amending sex offenses and
consent involving members of the clergy

 
PURPOSE:

To provide that a person is legally incapable of consenting to sexual
conduct when they are a member or adherent of a church or religious
group and the actor is a member of the clergy or minister providing the
person with pastoral counseling services.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends paragraph (j) of subdivision 3 of section
130.05 of the Penal Law ("Sex offenses; lack of consent") to establish
that a person is deemed legally incapable of consenting to sexual
conduct when they are a member or adherent of an organized church or
              

religious group, the actor is a member of the clergy or other minister,
and the act of sexual conduct occurs during the provision of pastoral
counseling services within the context of the actor's ministerial charge
or obligation.

Section 2 of the bill amends subdivision 4 of section 130.10 of the
Penal Law ("Sex offenses; limitation; defenses") to clarify that the
legal incapacity to consent created by section 1 of this bill does not
apply in cases where the parties involved are married to one another.

Section 3 of the bill is the effective date.

 
JUSTIFICATION:

New York's Penal Code establishes various circumstances in which a party
to sexual conduct is legally incapable of providing the necessary
consent, including when a person is less than 17 years old, mentally
disabled, mentally incapacitated, or physically helpless.

Section 130.05 of the Penal Law also provides for more situationally-
specific instances in which consent cannot be legally provided based on
the relationship between the victim and the actor, such as when the
victim if committed to or placed with the Office of Children & Family
Services and in residential care, and the actor in an employee of the
residential facility and not married to the victim. Another example
where consent cannot be legally provided is when the victim is a client
or patient and the actor is a health care or mental health care provider
where the act of sexual conduct occurred during a treatment session,
consultation, interview or examination.

Unlike at least 13 other states and the District of Columbia, New York's
laws about legal consent do not prohibit sexual conduct between reli-
gious leaders and their congregants, even in instances where the reli-
gious leader is directly ministering to or counseling the congregant.
The inherent power dynamic of clergy-congregant relationships is not
dissimilar to that of a therapist-client relationship, and for that
reason it should be similarly treated under New York's laws about capac-
ity to legally consent to sexual conduct.
This proposed law would not outright prohibit members of clergy or reli-
gious ministers from engaging in consensual sexual relationships with
members of their church or religious group, except in instances where
the sexual conduct occurs during the provision of pastoral counseling
services within the context of the actor's ministerial charge or obli-
gation.

In addition to conforming the clergy-congregant relationship with New
York's laws prohibiting sexual conduct between health and mental health
practitioners and their patients, this law would be consistent with the
ethical and sexual misconduct codes of numerous religions and religious
denominations.

 
LEGISLATIVE HISTORY:

None, new bill.

 
FISCAL IMPLICATIONS:

None.

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