Bill Text: NY S00728 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices.
Spectrum: Partisan Bill (Democrat 11-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO JUDICIARY [S00728 Detail]
Download: New_York-2019-S00728-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 728 2019-2020 Regular Sessions IN SENATE (Prefiled) January 9, 2019 ___________ Introduced by Sens. MONTGOMERY, BAILEY, COMRIE, HOYLMAN, PARKER, PERSAUD, RIVERA, SAVINO, SERRANO -- 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, the criminal procedure law, the executive law, and the legislative law in relation to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices; and to repeal paragraph (d) of subdivision 1 of section 160.10 of the crimi- nal procedure law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "End crimi- 2 nalization of condoms act". 3 § 2. Legislative findings. The legislature hereby finds that promoting 4 and protecting health and respecting and fulfilling human rights are 5 necessarily linked, and that health-oriented and rights-based law 6 enforcement efforts are central to the effective provision of government 7 services for the benefit of the people of the State. Article 17, section 8 3 of the New York constitution requires that the legislature protect and 9 promote the health of the inhabitants of this state as a matter of 10 public concern. Despite these provisions, for purposes of prosecuting 11 certain criminal, civil and administrative offenses, reproductive and 12 sexual health tools, including condoms, are currently being destroyed, 13 confiscated, or used as evidence by law enforcement officers. This 14 legislation is intended to strengthen the public health of all New York- 15 ers, including the most vulnerable, while preserving the ability of law 16 enforcement to prosecute other crimes such as felony sexual offenses. 17 The purpose of this bill is to avoid the disparate impact of the prac- 18 tice of citing condoms and other reproductive and sexual health tools as EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03439-01-9S. 728 2 1 evidence upon survivors of trafficking and people who are or are 2 profiled as being engaged in the sex trades. 3 § 3. The civil practice law and rules is amended by adding a new 4 section 4519-a to read as follows: 5 § 4519-a. Possession of reproductive or sexual health devices; receipt 6 into evidence. 1. The fact of possession of a condom or other reproduc- 7 tive or sexual health device may not be received in evidence in any 8 trial, hearing or proceeding pursuant to subdivision one of section 9 twelve and article ten of the multiple dwelling law, sections twelve-a 10 and twenty-three hundred twenty of the public health law, section two 11 hundred thirty-one of the real property law or subdivision five of 12 section seven hundred eleven and section seven hundred fifteen of the 13 real property actions and proceedings law, or by any law, local law or 14 ordinance of a political subdivision of this state, or by any word, rule 15 or regulation of any governmental instrumentality authorized by law to 16 adopt the same as evidence of prostitution, patronizing a prostitute, 17 promoting prostitution, permitting prostitution, maintaining a premises 18 for prostitution, lewdness or assignation, maintaining a bawdy house, 19 compelling prostitution, or sex trafficking. 20 2. "Reproductive or sexual health device" shall include any contracep- 21 tive or other tool used to prevent unwanted pregnancy or the trans- 22 mission of HIV or other sexually transmitted diseases, including but not 23 limited to male condoms, female condoms, lubricants, pre-exposure 24 prophylaxis ("PrEP"), post-exposure prophylaxis ("PEP"), HIV anti-retro- 25 viral medication, spermicide, hormonal methods, emergency contraception, 26 diaphragm, cervical cap, or sponge. 27 § 4. Section 60.47 of the criminal procedure law, as added by section 28 2 of part I of chapter 57 of the laws of 2015, is amended to read as 29 follows: 30 § 60.47 Possession of condoms or other reproductive or sexual health 31 device; receipt into evidence. 32 1. Evidence that a person was in possession of one or more condoms or 33 other reproductive or sexual health device may not be admitted at any 34 trial, hearing, or other proceeding in a prosecution for [section35230.00] any offense, or an attempt to commit any offense, defined in 36 article two hundred thirty or section 240.37 of the penal law, or 37 section sixty-five hundred twelve of the education law, or any law, 38 local law or ordinance of a political subdivision of this state, or any 39 word, rule or regulation of any governmental instrumentality authorized 40 by law to adopt the same, for the purpose of establishing probable cause 41 for an arrest or proving any person's commission or attempted commission 42 of such offense, as evidence of prostitution or trafficking-related 43 activity. 44 2. "Reproductive or sexual health device" shall include any contracep- 45 tive or other tool used to prevent unwanted pregnancy or the trans- 46 mission of HIV or other sexually transmitted diseases, including but not 47 limited to male condoms, female condoms, lubricant, pre-exposure prophy- 48 laxis ("PrEP"), post-exposure prophylaxis ("PEP"), HIV anti-retroviral 49 medication, spermicide, hormonal methods, emergency contraception, 50 diaphragm, cervical cap, or sponge. 51 § 5. Paragraph (d) of subdivision 1 of section 160.10 of the criminal 52 procedure law is REPEALED. 53 § 5-a. Paragraph (c) of subdivision 1 of section 160.10 of the crimi- 54 nal procedure law, as amended by chapter 762 of the laws of 1971, is 55 amended to read as follows:S. 728 3 1 (c) A misdemeanor defined outside the penal law which would constitute 2 a felony if such person had a previous judgment of conviction for a 3 crime[; or]. 4 § 6. The opening paragraph of subdivision 1, subdivision 2 and subdi- 5 vision 3 of section 160.55 of the criminal procedure law, the opening 6 paragraph of subdivision 1 as amended by chapter 169 of the laws of 7 1994, subdivision 2 as amended by chapter 476 of the laws of 2009 and 8 subdivision 3 as amended by chapter 249 of the laws of 1981 and renum- 9 bered by chapter 142 of the laws of 1991, are amended to read as 10 follows: 11 Upon the termination of a criminal action or proceeding against a 12 person by the conviction of such person of a traffic infraction or a 13 violation, other than [a violation of loitering as described in para-14graph (d) or (e) of subdivision one of section 160.10 of this chapter15or] the violation of operating a motor vehicle while ability impaired as 16 described in subdivision one of section eleven hundred ninety-two of the 17 vehicle and traffic law, unless the district attorney upon motion with 18 not less than five days notice to such person or his or her attorney 19 demonstrates to the satisfaction of the court that the interests of 20 justice require otherwise, or the court on its own motion with not less 21 than five days notice to such person or his or her attorney determines 22 that the interests of justice require otherwise and states the reasons 23 for such determination on the record, the clerk of the court wherein 24 such criminal action or proceeding was terminated shall immediately 25 notify the commissioner of the division of criminal justice services and 26 the heads of all appropriate police departments and other law enforce- 27 ment agencies that the action has been terminated by such conviction. 28 Upon receipt of notification of such termination: 29 2. A report of the termination of the action or proceeding by 30 conviction of a traffic violation or a violation other than [a violation31of loitering as described in paragraph (d) or (e) of subdivision one of32section 160.10 of this title or] the violation of operating a motor 33 vehicle while ability impaired as described in subdivision one of 34 section eleven hundred ninety-two of the vehicle and traffic law, shall 35 be sufficient notice of sealing to the commissioner of the division of 36 criminal justice services unless the report also indicates that the 37 court directed that the record not be sealed in the interests of 38 justice. Where the court has determined pursuant to subdivision one of 39 this section that sealing is not in the interests of justice, the clerk 40 of the court shall include notification of that determination in any 41 report to such division of the disposition of the action or proceeding. 42 When the defendant has been found guilty of a violation of harassment in 43 the second degree and it was determined pursuant to subdivision eight-a 44 of section 170.10 of this title that such violation was committed 45 against a member of the same family or household as the defendant, the 46 clerk of the court shall include notification of that determination in 47 any report to such division of the disposition of the action or proceed- 48 ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d) 49 of subdivision one of this section. 50 3. A person against whom a criminal action or proceeding was termi- 51 nated by such person's conviction of a traffic infraction or violation 52 other than [a violation of loitering as described in paragraph (d) or53(e) of subdivision one of section 160.10 of this chapter or] the 54 violation of operating a motor vehicle while ability impaired as 55 described in subdivision one of section eleven hundred ninety-two of the 56 vehicle and traffic law, prior to the effective date of this section,S. 728 4 1 may upon motion apply to the court in which such termination occurred, 2 upon not less than twenty days notice to the district attorney, for an 3 order granting to such person the relief set forth in subdivision one of 4 this section, and such order shall be granted unless the district attor- 5 ney demonstrates to the satisfaction of the court that the interests of 6 justice require otherwise. 7 § 7. Section 841 of the executive law is amended by adding a new 8 subdivision 7-b to read as follows: 9 7-b. Take such steps as may be necessary to ensure that all police 10 officers and peace officers certified pursuant to subdivision three of 11 this section receive appropriate instruction regarding the evidentiary 12 prohibition set forth in section 60.47 of the criminal procedure law and 13 section forty-five hundred nineteen-a of the civil practice law and 14 rules relating to the use of condoms and other reproductive or sexual 15 health devices as evidence in certain trials, hearings or proceedings, 16 or as a basis for probable cause for arrest, including that unauthorized 17 seizure or confiscation of condoms and other reproductive or sexual 18 health devices is a breach of public policy. 19 § 8. The legislative law is amended by adding a new section 49 to read 20 as follows: 21 § 49. Requirement with respect to bills amending certain laws which 22 affect health and human rights. Whenever a committee favorably reports a 23 bill to amend articles two hundred thirty or section 240.37 of the penal 24 law, or, at the discretion of the voting majority of the committee, any 25 bill which, if passed, would increase or decrease the number of arres- 26 tees or pretrial or sentenced population of correctional facilities in 27 this state, a majority of the committee members voting may request that 28 a health and human rights impact statement be prepared. The legislature 29 shall by concurrent resolution of the senate and assembly prescribe 30 rules requiring health and human rights impact statements to accompany, 31 on a separate form, bills and amendments to bills after such bills have 32 been reported from committee. Health and human rights impact statements 33 shall be prepared before the bill is considered for final passage. The 34 statement shall indicate whether the bill would have a disparate impact 35 by race, ethnicity, religion, age, gender, gender identity or 36 expression, sexual orientation, immigration status, disability, or hous- 37 ing status composition of the arrestee and correctional facility popu- 38 lation and an explanation of that impact. Any impact statement printed 39 with or prepared for a bill is solely for the purpose of information, 40 summarization and explanation for members of the legislature and shall 41 not be construed to represent the intent of the legislature or either 42 chamber thereof for any purpose. Each impact statement shall bear the 43 following disclaimer: "The following health and human rights impact 44 statement is prepared for the benefit of the members of the legislature, 45 solely for purposes of information, summarization and explanation and 46 does not represent the intent of the legislature or either chamber ther- 47 eof for any purpose." 48 § 9. The legislative law is amended by adding a new section 83-n to 49 read as follows: 50 § 83-n. Legislative commission on health and human rights. 1. The 51 legislature hereby finds that promoting and protecting health and 52 respecting and fulfilling human rights are necessarily linked, and that 53 coordination between health and law enforcement efforts is central to 54 the effective provision of government services for the benefit of the 55 people of the state.S. 728 5 1 2. A legislative commission on health and human rights is hereby 2 established to examine, evaluate and make recommendations concerning 3 rights-based approaches to health and law enforcement interventions. 4 The commission shall act as a mechanism for ongoing and meaningful 5 involvement of those who are or potentially could be affected by this 6 law, including, but not limited to, survivors of trafficking, people who 7 are or are profiled as being involved in the sex trades, communities of 8 color, lesbian, gay, bisexual and transgender people, and people in 9 custodial settings. The commission shall provide monitoring and expert 10 perspective to the legislature, promoting awareness of problems in real 11 time as they emerge, increase cooperation and collaboration between the 12 individuals and communities directly impacted and their legislators, and 13 allow legislators to share responsibility for successes and failures of 14 these initiatives. The commission shall make such recommendations as it 15 may deem necessary as to regulations, policies, programs, and proposed 16 legislation to provide an equitable system of providing for the public 17 safety while also protecting public health, to encourage the most effec- 18 tive use of state and local resources, to preserve the fiscal integrity 19 of both state and local government health systems and otherwise to 20 strengthen the fundamental human right to health. 21 3. The commission shall consist of ten representatives from organiza- 22 tions that promote advocacy by and for directly impacted communities. 23 From among the members so appointed, a chairperson and vice chairperson 24 shall be designated by the joint action of the chairpersons of the 25 senate and assembly health committees. Any vacancy that occurs in the 26 commission or in the chairmanship or vice chairmanship shall be filled 27 in the same manner in which the original appointment or designation was 28 made. 29 4. The commission in addition to the above mentioned powers shall have 30 all the powers and privileges of a legislative committee pursuant to 31 this chapter. 32 5. For the accomplishment of its purpose, the commission shall be 33 authorized and empowered to undertake any study, inquiry, survey, or 34 analysis it may deem relevant through its own personnel in cooperation 35 with or by agreement with any other public or private agency. 36 6. The commission may require and shall receive from any department, 37 board, bureau, commission, authority, office, or other instrumentality 38 of the state, and from any county, city, town or village of this state, 39 such facilities, assistance, and data, as it deems necessary or desira- 40 ble for proper execution of its powers and duties. 41 7. The commission may hold public or private hearings and shall have 42 full powers to subpoena witnesses and all records or data it shall deem 43 necessary or desirable pursuant to this chapter. 44 8. The members of the commission shall serve on a voluntary basis and 45 receive no compensation for their services. 46 § 10. Paragraph (f) of subdivision 4 of section 837 of the executive 47 law, as amended by chapter 169 of the laws of 1994, is amended and a new 48 paragraph (g) is added to read as follows: 49 (f) Accomplish all of the functions, powers, and duties set forth in 50 paragraphs (a), (b), (c) and (d) of this subdivision with respect to the 51 processing and disposition of cases involving violent felony offenses 52 specified in subdivision one of section 70.02 of the penal law[.]; and 53 (g) Accomplish all of the functions, powers, and duties set forth in 54 paragraphs (a), (b), (c) and (d) of this subdivision with respect to all 55 chapters of law resulting from legislative bills that have been subject 56 to the provisions of sections forty-nine and eighty-three-n of theS. 728 6 1 legislative law. The division shall present to the governor, the tempo- 2 rary president of the senate, the minority leader of the senate, the 3 speaker of the assembly and the minority leader of the assembly an annu- 4 al report containing the statistics and other information relevant to 5 this subdivision. 6 § 11. If any provision of this article or the application thereof to 7 any person, circumstances, or political subdivision of this state is 8 adjudged invalid by a court of competent jurisdiction such judgment 9 shall not affect or impair the validity of the other provisions of the 10 article or the application thereof to other political subdivisions of 11 this state, persons, and circumstances. 12 § 12. This act shall take effect on the first of March next succeeding 13 the date on which it shall have become a law; provided, however that the 14 amendments to article 5-A of the legislative law made by section nine of 15 this act shall not affect the repeal of such article and shall be deemed 16 repealed therewith.
