BILL NUMBER: S3578

SPONSOR: STAVISKY
 
TITLE OF BILL:

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

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to correct inconsistencies in the penal law
relating to the aggravated sexual abuse of children under the age of
thirteen

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Repeals section 130.65-a of the penal law, aggravated sexual
abuse in the fourth degree.

Section 2. Amends 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, aggravated sexual abuse in the third degree, to make the
intentional touching, with no legitimate purpose, of the vagina, vulva,
penis, rectum or anus of a child under the age of thirteen for the
purpose of degrading or abusing such child an E felony.

Section 3. Amends 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, aggravated sexual abuse in the second degree, by amending
subdivision one to include the insertion of a hand or foreign object (in
addition to the existing reference to a finger) into another person, to
remove the element of physical injury, to include a victim who is inca-
pable of consent by reason of being mentally disabled or mentally inca-
pacitated, to include a victim who is a child of less than thirteen
years old when the actor is eighteen years old or older, and to revise
the charge to a D felony.

Section 4. Amends 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, aggravated
sexual abuse in the first degree, to include the insertion of a finger
or hand (in addition to the existing reference to a foreign object) into
another person, to include a victim who is incapable of consent by
reason of being mentally disabled or mentally incapacitated, and to
include a victim who is a child of less than thirteen years old when the
actor is eighteen years old or older.

Section 5. Amends 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 by replacing the reference to aggravated sexual abuse in
the fourth degree with aggravated sexual abuse in the third degree.

Section 6. Amends subdivision 3 of section 130.10 of the penal law, as
amended by chapter 264 of the laws of 2003 by replacing the reference to
aggravated sexual abuse in the fourth degree with aggravated sexual
abuse in the third degree.
Section 7. Sets forth the effective date.

 
JUSTIFICATION:

Current law contains notable inconsistencies in our efforts to protect
sexually abused children. For example, an offender who places a tongue
on a child's vagina can be charged with a criminal sexual act in the
first degree, a B felony that elevates to an A-II felony through the
charge of predatory sexual assault against a child. In contrast, if that
same actor inserts a finger into a child's vagina, the offender can only
be charged with aggravated sexual abuse in the second degree, a C felo-
ny. Moreover, the weightier charge of criminal sexual act in the first
degree does not require a showing of physical injury, whereas the lesser
charge of aggravated sexual abuse in the second degree does. Likewise,
if an actor inserts a finger into the anus of a twelve-year-old who is
physically helpless with no showing of physical injury, the offender can
be charged with aggravated sexual abuse in the second degree, a C felo-
ny. However, if that same actor inserts a finger into the anus of a
twelve-year-old who is mentally disabled or mentally incapacitated,
there must be a showing of physical injury to qualify for a charge of
aggravated sexual abuse in the fourth degree, an E felony. Finally,
although children under the age of thirteen are exp ressly identified as
a victim of sexual abuse in the first degree, no such equivalent exists
for aggravated sexual abuse charges.

The changes detailed below remedy inconsistencies in current law and
align charges for aggravated sexual abuse offenses more closely with
charges of rape and criminal sexual act.

 
AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE, PENAL LAW § 130.70.ct.

Current law distinguishes first and second degree aggravated sexual
abuse based solely on the object of insertion. This bill adds references
to "finger" and "hand" to aggravated sexual abuse in the first degree
(in addition to the existing reference to "foreign object"). In addi-
tion, the bill adds express references to victims who are incapable of
consent by reason of being mentally disabled or mentally incapacitated
and to victims who are less than thirteen years old when the actor is
eighteen years or older.

 
AGGRAVATED SEXUAL ABUSE IN THE SECOND DEGREE, PENAL LAW § 130.67.ct.

The addition of references to "finger" and "hand" to aggravated sexual
abuse in the first degree renders aggravated sexual abuse in the second
degree redundant. As a result, the legislation replaces the existing
text of aggravated sexual abuse in the second degree with language modi-
fied from the existing charge of aggravated sexual abuse in the third
degree. Specifically, the bill adds references to "finger" and "hand"
(in addition to the existing reference to "foreign object"), removes
physical injury as an element, expressly identifies a victim as someone
who is incapable of consent by reason of being mentally disabled or
mentally incapacitated (in addition to a victim who is physically help-
less), and expressly identifies a victim as someone who is less than
thirteen years old when the actor is eighteen years or older. This
second degree offense becomes a D felony, aligning it with second degree
offenses for rape and criminal sexual act.

 
AGGRAVATED SEXUAL ABUSE IN THE THIRD DEGREE, PENAL LAW § 130.66.ct.
This legislation replaces the existing text of aggravated sexual abuse
in the third degree with language modified from the existing charge of
aggravated sexual abuse in the fourth degree. In this section, the bill
seeks to acknowledge the seriousness of a crime in which an actor perpe-
trates intentional sexual contact with an unclothed victim without pene-
trating the victim. The text borrows from language in Penal Law §
130.52, yet focuses on touching of specific unclothed areas of the body.
This third degree offense becomes an E felony, aligning it with third
degree offenses for rape and criminal sexual act.

 
PRIOR LEGISLATIVE HISTORY:

2021-2022: A.9662/S.8898 - Referred to Codes.

 
FISCAL IMPLICATIONS:

None to state.

 
EFFECTIVE DATE:
This act shall take effect immediately.