Senate Bill S994

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    994
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 9, 2023
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Judiciary
 
 AN ACT to amend the civil practice law and rules, in relation to  admis-
   sibility  of evidence of a victim's sexual conduct, sexual predisposi-
   tion, or manner of dress

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The civil practice law and rules is amended by adding a new
 section 4550 to read as follows:
   §  4550.  ADMISSIBILITY OF EVIDENCE OF VICTIM'S SEXUAL CONDUCT, SEXUAL
 PREDISPOSITION, OR MANNER OF DRESS. THE FOLLOWING EVIDENCE SHALL NOT  BE
 DISCOVERABLE OR ADMISSIBLE IN A CIVIL ACTION OR PROCEEDING:
   (A)  EVIDENCE  OF  THE  VICTIM'S  OR  ALLEGED VICTIM'S PREVIOUS SEXUAL
 CONDUCT OR SEXUAL PREDISPOSITION SHALL NOT BE DISCOVERABLE OR  ADMITTED,
 NOR  REFERENCE  MADE TO IT IN THE PRESENCE OF A JURY, EXCEPT AS PROVIDED
 IN THIS SECTION. WHEN A  DEFENDANT  SEEKS  TO  DISCOVER  OR  ADMIT  SUCH
 EVIDENCE  FOR ANY PURPOSE, THE DEFENDANT SHALL APPLY FOR AN ORDER OF THE
 COURT.  AFTER THE MOTION IS MADE, THE COURT SHALL CONDUCT A  HEARING  IN
 CAMERA  TO  DETERMINE  THE  DISCOVERABILITY  OR  ADMISSIBILITY  OF  SUCH
 EVIDENCE. UPON THE HEARING AND DETERMINATION OF  SUCH  A  MOTION,  THERE
 SHALL  BE  A  PRESUMPTION  THAT  ANY SUCH REFERENCE TO A VICTIM'S SEXUAL
 CONDUCT, SEXUAL PREDISPOSITION OR MANNER OF DRESS, IS BOTH  INADMISSIBLE
 AS  EVIDENCE  AND  NOT  SUBJECT  TO  DISCLOSURE. IF THE COURT FINDS THAT
 EVIDENCE OFFERED BY THE DEFENDANT REGARDING THE SEXUAL  CONDUCT,  SEXUAL
 PREDISPOSITION,  OR  MANNER  OF DRESS OF THE VICTIM OR ALLEGED VICTIM IS
 RELEVANT AND THAT ITS PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHS THE DANGER
 OF HARM, SHAME OR EMBARRASSMENT TO ANY VICTIM OR ALLEGED VICTIM; AND THE
 PROBATIVE VALUE OF THE EVIDENCE OFFERED IS NOT OUTWEIGHED BY ITS COLLAT-
 ERAL NATURE OR BY THE PROBABILITY THAT ITS ADMISSION WILL  CREATE  UNDUE
 PREJUDICE,  CONFUSION  OF  THE  ISSUES,  OR  UNWARRANTED INVASION OF THE
 PRIVACY OF THE VICTIM OR ALLEGED VICTIM,  OR  LEAD  TO  HARM,  SHAME  OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04100-01-3
              

 S. 994                              2
 
 EMBARRASSMENT  ON  THE  PART  OF THE VICTIM OR ALLEGED VICTIM; THE COURT
 SHALL ENTER AN ORDER SETTING FORTH WITH SPECIFICITY WHAT EVIDENCE MAY BE
 DISCOVERED OR INTRODUCED AND THE NATURE OF THE QUESTIONS WHICH SHALL  BE
 PERMITTED, AND THE REASONS WHY THE COURT FINDS THAT SUCH EVIDENCE SATIS-
 FIES  THE  STANDARDS  CONTAINED  IN THIS SECTION. THE DEFENDANT MAY THEN
 DISCOVER OR OFFER EVIDENCE UNDER THE ORDER OF THE COURT.
   (B) UNLESS THE COURT ORDERS OTHERWISE, THE MOTION, RELATED  MATERIALS,
 AND  THE  RECORD  OF  THE  HEARING UNDER SUBDIVISION (A) OF THIS SECTION
 SHALL BE AND REMAIN SEALED.
   (C) EVIDENCE OF THE  VICTIM'S  OR  ALLEGED  VICTIM'S  PREVIOUS  SEXUAL
 CONDUCT  SHALL  NOT  BE DISCOVERABLE OR CONSIDERED RELEVANT UNLESS IT IS
 MATERIAL TO PROVING THAT THE SOURCE OF SEMEN, PREGNANCY OR DISEASE IS  A
 PERSON  OTHER  THAN  THE  DEFENDANT  OR THE ALLEGED PERPETRATOR. FOR THE
 PURPOSES OF THIS SECTION, "SEXUAL CONDUCT" SHALL  MEAN  ANY  CONDUCT  OR
 BEHAVIOR  RELATING TO SEXUAL ACTIVITIES OF THE VICTIM, INCLUDING BUT NOT
 LIMITED TO PREVIOUS OR SUBSEQUENT EXPERIENCE OF  SEXUAL  PENETRATION  OR
 SEXUAL  CONTACT,  USE  OF  CONTRACEPTIVES,  LIVING  ARRANGEMENT AND LIFE
 STYLE.
   (D) EVIDENCE OF THE MANNER IN WHICH THE VICTIM OR ALLEGED  VICTIM  WAS
 DRESSED  AT  THE  TIME  OF  THE COMMISSION OF A SEXUAL OFFENSE OR SEXUAL
 MISCONDUCT SHALL NOT BE ADMITTED, UNLESS SUCH EVIDENCE IS DETERMINED  BY
 THE  COURT  TO  BE  RELEVANT AND ADMISSIBLE IN THE INTERESTS OF JUSTICE,
 AFTER AN OFFER OF PROOF BY THE PROPONENT OF SUCH  EVIDENCE  OUTSIDE  THE
 HEARING  OF  THE  JURY,  OR SUCH HEARING AS THE COURT MAY REQUIRE, AND A
 STATEMENT BY THE COURT OF ITS FINDINGS OF FACT ESSENTIAL TO ITS DETERMI-
 NATION.
   (E) THE COURT MAY ADMIT EVIDENCE OF A  VICTIM'S  OR  ALLEGED  VICTIM'S
 REPUTATION  ONLY  IF  SUCH  VICTIM  OR  ALLEGED  VICTIM HAS PLACED IT IN
 CONTROVERSY.
   § 2. This act shall take effect immediately.