NY State Senate Bill 2021-S5887

Senate Bill S5887

2021-2022 Legislative Session

Relates to including rape in the third degree, rape in the second degree and rape in the first degree as family offenses

download bill text pdf

Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to children and families
Mar 22, 2021	referred to children and families

2021-S5887 (ACTIVE) - Details

Current Committee:: Senate Children And Families
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §530.11, CP L; amd §812, Fam Ct Act; amd §240.75, Pen L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S5307
2023-2024: S7351

2021-S5887 (ACTIVE) - Summary

Includes rape in the third degree, rape in the second degree and rape in the first degree as family offenses.

2021-S5887 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5887

SPONSOR: PARKER
 
TITLE OF BILL:

An act to amend the criminal procedure law, the family court act and the
penal law, in relation to including rape in the third degree, rape in
the second degree and rape in the first degree as family offenses

 
PURPOSE OR GENERAL IDEA OF BILL:

Relates to including rape in the third degree, rape in the second degree
and rape in the first degree as family defense

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Subdivision 1 of section 530.11 of the criminal procedure
law, as amended by chapter 326 of the laws of 2008, and the opening
paragraph as amended by section 4 of part NN of chapter 55 of the laws
of 2018, is amended

Section 2. Subdivision 1 of section 812 of the family court act, as
amended by chapter 326 of the laws of 2008, and the opening paragraph as
amended by section 5 of part NN of chapter 55 of the laws of 2018, is
amended

Section 3. Subdivision 2 of section 240.75 of the penal law, as amended
by chapter 326 of the laws of 2008, and the opening paragraph as amended
by section 8 of part NN of chapter 55 of the laws of 2018, is amended

Section 4. This act shall take effect immediately

 
JUSTIFICATION:

Going through a divorce and filing for custody is hard enough, but imag-
ine having to do so when your partner has raped you or your child. As
the law currently stands, "rape" cannot be heard in a family court
because it is a criminal offense and separate charges have to be filed
within a criminal court. Because of this, a family court judge cannot
hear or use rape to determine someone's right to custody and often times
children have been placed back into the homes of their rapists.

 
PRIOR LEGISLATIVE HISTORY:

New bill

 
FISCAL IMPLICATIONS:

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

2021-S5887 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5887
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              March 22, 2021
                                ___________
 
 Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
   printed to be committed to the Committee on Children and Families
 
 AN ACT to amend the criminal procedure law, the family court act and the
   penal law, in relation to including rape in the third degree, rape  in
   the second degree and rape in the first degree as family offenses

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 1 of section 530.11 of the  criminal  procedure
 law,  as  amended  by  chapter  326 of the laws of 2008, and the opening
 paragraph as amended by chapter 109 of the laws of 2019, is  amended  to
 read as follows:
   1.  Jurisdiction.  The family court and the criminal courts shall have
 concurrent jurisdiction over any proceeding concerning acts which  would
 constitute  disorderly conduct, unlawful dissemination or publication of
 an intimate image, harassment in the first  degree,  harassment  in  the
 second  degree,  aggravated  harassment  in  the  second  degree, sexual
 misconduct, forcible touching, sexual abuse in the third degree,  sexual
 abuse  in  the  second degree as set forth in subdivision one of section
 130.60 of the penal law, stalking in the first degree, stalking  in  the
 second  degree,  stalking  in  the  third degree, stalking in the fourth
 degree, criminal mischief, menacing in the second  degree,  menacing  in
 the  third  degree,  reckless  endangerment,  strangulation in the first
 degree, strangulation in the  second  degree,  criminal  obstruction  of
 breathing or blood circulation, assault in the second degree, assault in
 the  third  degree,  an  attempted  assault, identity theft in the first
 degree, identity theft in the second degree, identity theft in the third
 degree, grand larceny in the fourth degree, grand larceny in  the  third
 degree, coercion in the second degree or coercion in the third degree as
 set  forth  in  subdivisions one, two and three of section 135.60 of the
 penal law, RAPE IN THE THIRD DEGREE AS SET FORTH IN  SECTION  130.25  OF
 THE  PENAL LAW, RAPE IN THE SECOND DEGREE AS SET FORTH IN SECTION 130.30
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD10195-01-1

 S. 5887                             2
 
 OF THE PENAL LAW, RAPE IN THE FIRST  DEGREE  AS  SET  FORTH  IN  SECTION
 130.35  OF  THE  PENAL LAW between spouses or former spouses, or between
 parent and child or between members of  the  same  family  or  household
 except  that  if  the  respondent would not be criminally responsible by
 reason of age pursuant to section 30.00 of the penal law, then the fami-
 ly  court  shall  have  exclusive  jurisdiction  over  such  proceeding.
 Notwithstanding a complainant's election to proceed in family court, the
 criminal  court  shall  not be divested of jurisdiction to hear a family
 offense proceeding pursuant  to  this  section.  For  purposes  of  this
 section,  "disorderly  conduct"  includes  disorderly  conduct  not in a
 public place.  For purposes of this section, "members of the same family
 or household" with respect to a proceeding in the criminal courts  shall
 mean the following:
   (a) persons related by consanguinity or affinity;
   (b) persons legally married to one another;
   (c) persons formerly married to one another regardless of whether they
 still reside in the same household;
   (d)  persons  who  have  a child in common, regardless of whether such
 persons have been married or have lived together at any time; and
   (e) persons who are not related by consanguinity or affinity  and  who
 are  or have been in an intimate relationship regardless of whether such
 persons have lived together at any time. Factors the court may  consider
 in  determining  whether  a  relationship  is an "intimate relationship"
 include but are not limited to: the  nature  or  type  of  relationship,
 regardless of whether the relationship is sexual in nature; the frequen-
 cy of interaction between the persons; and the duration of the relation-
 ship.  Neither a casual acquaintance nor ordinary fraternization between
 two individuals in business  or  social  contexts  shall  be  deemed  to
 constitute an "intimate relationship".
   §  2. Subdivision 1 of section 812 of the family court act, as amended
 by chapter 326 of the laws of 2008, and the opening paragraph as amended
 by chapter 109 of the laws of 2019, is amended to read as follows:
   1. Jurisdiction.  The family court and the criminal courts shall  have
 concurrent  jurisdiction over any proceeding concerning acts which would
 constitute disorderly conduct, unlawful dissemination or publication  of
 an  intimate  image,  harassment  in the first degree, harassment in the
 second degree,  aggravated  harassment  in  the  second  degree,  sexual
 misconduct,  forcible touching, sexual abuse in the third degree, sexual
 abuse in the second degree as set forth in subdivision  one  of  section
 130.60  of  the penal law, stalking in the first degree, stalking in the
 second degree, stalking in the third  degree,  stalking  in  the  fourth
 degree,  criminal  mischief,  menacing in the second degree, menacing in
 the third degree, reckless endangerment, criminal obstruction of breath-
 ing or blood circulation, strangulation in the second degree, strangula-
 tion in the first degree, assault in the second degree, assault  in  the
 third  degree, an attempted assault, identity theft in the first degree,
 identity theft in the second degree, identity theft in the third degree,
 grand larceny in the fourth degree, grand larceny in the  third  degree,
 coercion  in  the  second  degree or coercion in the third degree as set
 forth in subdivisions one, two and three of section 135.60 of the  penal
 law,  RAPE  IN  THE  THIRD  DEGREE AS SET FORTH IN SECTION 130.25 OF THE
 PENAL LAW, RAPE IN THE SECOND DEGREE AS SET FORTH IN SECTION  130.30  OF
 THE  PENAL  LAW, RAPE IN THE FIRST DEGREE AS SET FORTH IN SECTION 130.35
 OF THE PENAL LAW between spouses or former spouses,  or  between  parent
 and child or between members of the same family or household except that
 if  the  respondent would not be criminally responsible by reason of age

 S. 5887                             3
 
 pursuant to section 30.00 of the penal law, then the family court  shall
 have  exclusive  jurisdiction  over  such  proceeding. Notwithstanding a
 complainant's election to proceed in family court,  the  criminal  court
 shall  not be divested of jurisdiction to hear a family offense proceed-
 ing pursuant to this section. In any proceeding pursuant to  this  arti-
 cle,  a  court shall not deny an order of protection, or dismiss a peti-
 tion, solely on the basis that  the  acts  or  events  alleged  are  not
 relatively contemporaneous with the date of the petition, the conclusion
 of  the fact-finding or the conclusion of the dispositional hearing. For
 purposes of  this  article,  "disorderly  conduct"  includes  disorderly
 conduct not in a public place. For purposes of this article, "members of
 the same family or household" shall mean the following:
   (a) persons related by consanguinity or affinity;
   (b) persons legally married to one another;
   (c) persons formerly married to one another regardless of whether they
 still reside in the same household;
   (d)  persons  who  have  a  child in common regardless of whether such
 persons have been married or have lived together at any time; and
   (e) persons who are not related by consanguinity or affinity  and  who
 are  or have been in an intimate relationship regardless of whether such
 persons have lived together at any time. Factors the court may  consider
 in  determining  whether  a  relationship  is an "intimate relationship"
 include but are not limited to: the  nature  or  type  of  relationship,
 regardless of whether the relationship is sexual in nature; the frequen-
 cy of interaction between the persons; and the duration of the relation-
 ship.  Neither a casual acquaintance nor ordinary fraternization between
 two individuals in business  or  social  contexts  shall  be  deemed  to
 constitute an "intimate relationship".
   §  3.  Subdivision 2 of section 240.75 of the penal law, as amended by
 section 8 of part NN of chapter 55 of the laws of 2018,  is  amended  to
 read as follows:
   2.  A  "specified  offense"  is  an  offense defined in section 120.00
 (assault in the third degree); section 120.05  (assault  in  the  second
 degree);  section  120.10  (assault in the first degree); section 120.13
 (menacing in the first degree); section 120.14 (menacing in  the  second
 degree);  section  120.15 (menacing in the third degree); section 120.20
 (reckless endangerment in the second degree); section  120.25  (reckless
 endangerment  in  the  first  degree);  section  120.45 (stalking in the
 fourth degree); section 120.50 (stalking in the third  degree);  section
 120.55  (stalking in the second degree); section 120.60 (stalking in the
 first degree); section 121.11  (criminal  obstruction  of  breathing  or
 blood circulation); section 121.12 (strangulation in the second degree);
 section  121.13  (strangulation in the first degree); subdivision one of
 section 125.15 (manslaughter in the second degree); subdivision one, two
 or four of section 125.20 (manslaughter in the  first  degree);  section
 125.25  (murder  in  the  second degree); section 130.20 (sexual miscon-
 duct); SECTION 130.25 (RAPE IN THE THIRD DEGREE); section  130.30  (rape
 in  the  second  degree);  section  130.35  (rape  in the first degree);
 section 130.40 (criminal sexual act in the third degree); section 130.45
 (criminal sexual act in the second  degree);  section  130.50  (criminal
 sexual  act  in  the  first degree); section 130.52 (forcible touching);
 section 130.53 (persistent sexual abuse); section 130.55  (sexual  abuse
 in  the  third  degree);  section  130.60  (sexual  abuse  in the second
 degree); section 130.65 (sexual abuse  in  the  first  degree);  section
 130.66  (aggravated  sexual  abuse  in the third degree); section 130.67
 (aggravated sexual abuse in the second degree); section  130.70  (aggra-

 S. 5887                             4
 
 vated  sexual abuse in the first degree); section 130.91 (sexually moti-
 vated felony); section 130.95 (predatory sexual assault); section 130.96
 (predatory sexual assault against a  child);  section  135.05  (unlawful
 imprisonment  in  the second degree); section 135.10 (unlawful imprison-
 ment in the  first  degree);  section  135.60  (coercion  in  the  third
 degree);  section 135.61 (coercion in the second degree); section 135.65
 (coercion in the first degree); section 140.20 (burglary  in  the  third
 degree);  section 140.25 (burglary in the second degree); section 140.30
 (burglary in the first degree); section 145.00 (criminal mischief in the
 fourth degree); section 145.05 (criminal mischief in the third  degree);
 section  145.10 (criminal mischief in the second degree); section 145.12
 (criminal mischief  in  the  first  degree);  section  145.14  (criminal
 tampering in the third degree); section 215.50 (criminal contempt in the
 second  degree); section 215.51 (criminal contempt in the first degree);
 section 215.52 (aggravated criminal contempt); section  240.25  (harass-
 ment  in  the  first  degree);  subdivision  one, two or four of section
 240.30 (aggravated harassment in the second degree);  aggravated  family
 offense  as  defined  in  this  section  or any attempt or conspiracy to
 commit any of the foregoing offenses where the defendant and the  person
 against  whom  the offense was committed were members of the same family
 or household as defined in subdivision one  of  section  530.11  of  the
 criminal procedure law.
   § 4. This act shall take effect immediately.

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