NY State Senate Bill 2021-S8351

Senate Bill S8351

2021-2022 Legislative Session

Prohibits a court from ordering certain physical examinations of the victim of a sexual assault and relates to the admissibility of evidence of the refusal of such victim to undergo such examinations

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Archive: Last Bill Status - In Senate Committee Codes 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
Feb 15, 2022	referred to codes

co-Sponsors

2021-S8351 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §60.49, CP L; amd §3121, CPLR

2021-S8351 (ACTIVE) - Summary

Prohibits a court from ordering certain physical examinations of the victim of a sexual assault; relates to the admissibility of evidence of the refusal of such victim to undergo such examinations.

2021-S8351 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S8351

SPONSOR: CLEARE
 
TITLE OF BILL:

An act to amend the criminal procedure law and the civil practice law
and rules, in relation to prohibiting a court from ordering certain
physical examinations of the victim of a sexual assault and to the
admissibility of evidence of the refusal of such victim to undergo such
examinations

 
PURPOSE OR GENERAL IDEA OF BILL:

An act to amend the criminal procedure law and the civil practice law
and rules, in relation.to prohibiting a court from ordering certain
physical examinations of the victim of a sexual assault and to the
admissibility of evidence of the refusal of such victim to undergo such
examinations.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill adds a new sections 60.49 to the criminal proce-

dure to prohibit the practice "court-ordered rape," refers to a penetra-
tive vaginal and/or anal examination of a victim conducted as a result
of a discovery order issued by a trial court in the course of a criminal
prosecution.

Section 2 amends the civil practice law to protect the admissibility of
ancillary evidence from the victim in the event of a sexual assault case
should they decide not to subject themselves to a court ordered exam.

Section 3 sets the effective date.

 
JUSTIFICATION:

The phrase, "court-ordered rape," refers to a penetrative vaginal and/or
anal examination of a victim conducted as a result of a discovery order
issued by a trial court in the course of a criminal prosecution. Court-
ordered rape is the phrase that one of the more prominent advocates uses
to characterize these cases.

As explained in a report by Villanova University Charles Widger School
of Law professor of law Michelle Madden Dempsey, court-ordered gyneco-
logical exams rely on the myth of what can be determined by examining a
female's hymen. They also can be traumatic, used to re-traumatize
victims by defendants and can deter victims from reporting crimes in the
first place.

Experts argue that there is no evidence that can be gained by a sexual
assault examination of a child or an adult that could have any probative
value in a criminal or civil case after 9 days and most time frames for
sample collection tend to fall between 96 and 120 hours in the majority
of jurisdictions.

The bill would ban a judge from ordering an examination, though a victim
could voluntarily submit to an examination at the defense's request. The
victim's refusal would not affect the ability of other evidence, such as
a rape kit, from being used by the defense.

 
PRIOR LEGISLATIVE HISTORY:

New Bill

 
FISCAL IMPLICATIONS:

None noted.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2021-S8351 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8351
 
                             I N  S E N A T E
 
                             February 15, 2022
                                ___________
 
 Introduced  by  Sen.  CLEARE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law and the  civil  practice  law
   and  rules,  in  relation to prohibiting a court from ordering certain
   physical examinations of the victim of a sexual  assault  and  to  the
   admissibility  of  evidence  of  the refusal of such victim to undergo
   such examinations
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  criminal  procedure  law  is amended by adding a new
 section 60.56 to read as follows:
 § 60.56 RULES OF EVIDENCE; ADMISSIBILITY OF EVIDENCE OF VICTIM'S REFUSAL
           TO UNDERGO EXAMINATION IN SEX OFFENSE CASES.
   1. THE COURT MAY NOT ORDER OR OTHERWISE REQUIRE THE ALLEGED VICTIM  IN
 A PROSECUTION FOR A SEXUAL OFFENSE TO SUBMIT TO OR UNDERGO A GYNECOLOGI-
 CAL  OR PHYSICAL EXAMINATION OF THE BREASTS, BUTTOCKS, ANUS, OR ANY PART
 OF THE SEX ORGANS.
   2. THE  REFUSAL  OF  AN  ALLEGED  VICTIM  TO  UNDERGO  AN  EXAMINATION
 DESCRIBED  IN SUBDIVISION ONE OF THIS SECTION MAY NOT SERVE AS THE BASIS
 TO EXCLUDE EVIDENCE OBTAINED FROM OTHER  RELEVANT  EXAMINATIONS  OF  THE
 VICTIM, EXCEPT WHERE CONSTITUTIONALLY REQUIRED.
   3.  FOR  THE PURPOSES OF THIS SECTION, THE TERM "SEXUAL OFFENSE" MEANS
 ANY OFFENSE IN WHICH  SEXUAL  INTERCOURSE,  SEXUAL  CONTACT,  OR  SEXUAL
 INTRUSION  IS  AN  ELEMENT  OF THE OFFENSE, AND INCLUDES ANY PROSECUTION
 UNDER ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW.
   § 2. Section 3121 of the civil practice law and rules  is  amended  by
 adding a new subdivision (c) to read as follows:
   (C)  (1)  NOTWITHSTANDING  THE  PROVISIONS  OF SUBDIVISION (A) OF THIS
 SECTION, IN A MATTER INVOLVING INJURY ALLEGEDLY ATTRIBUTABLE TO A SEXUAL
 ASSAULT, THE COURT MAY NOT ORDER OR OTHERWISE REQUIRE A  PARTY  WHO  WAS
 THE ALLEGED VICTIM IN A PROSECUTION FOR A SEXUAL OFFENSE TO SUBMIT TO OR
 UNDERGO   A  GYNECOLOGICAL  OR  PHYSICAL  EXAMINATION  OF  THE  BREASTS,
 BUTTOCKS, ANUS, OR ANY PART OF THE SEX ORGANS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11868-02-1

 S. 8351                             2
 
   (2) THE REFUSAL OF A PARTY TO  UNDERGO  AN  EXAMINATION  DESCRIBED  IN
 SUBDIVISION  ONE  OF  THIS SECTION MAY NOT SERVE AS THE BASIS TO EXCLUDE
 EVIDENCE OBTAINED FROM OTHER RELEVANT EXAMINATIONS OF THE PARTY,  EXCEPT
 WHERE CONSTITUTIONALLY REQUIRED.
   (3)  FOR  THE  PURPOSES OF THIS SUBDIVISION, THE TERM "SEXUAL OFFENSE"
 MEANS ANY OFFENSE IN WHICH SEXUAL INTERCOURSE, SEXUAL CONTACT, OR SEXUAL
 INTRUSION IS AN ELEMENT OF THE OFFENSE,  AND  INCLUDES  ANY  PROSECUTION
 UNDER ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW.
   § 3. This act shall take effect immediately.

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Senate Bill S8351

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Sponsored By

Cordell Cleare