Bill Text: NY S07216 | 2017-2018 | General Assembly | Amended


Bill Title: Relates to sex offenses; defines vaginal sexual contact.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2018-06-18 - referred to codes [S07216 Detail]

Download: New_York-2017-S07216-Amended.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                         7216--A
                    IN SENATE
                                     January 4, 2018
                                       ___________
        Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
          printed to be  committed  to  the  Committee  on  Codes  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
        AN  ACT  to  amend the penal law, the criminal procedure law, the family
          court act, and the domestic relations law, in relation to sex offenses
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.    Subdivision  1  of  section  130.00 of the penal law is
     2  amended to read as follows:
     3    1. "[Sexual intercourse] Vaginal sexual  contact"  [has  its  ordinary
     4  meaning  and  occurs upon any penetration, however slight] means conduct
     5  between persons consisting of contact between the penis and  the  vagina
     6  or vulva.
     7    §  2.  Section 130.25 of the penal law, as amended by chapter 1 of the
     8  laws of 2000, is amended to read as follows:
     9  § 130.25 Rape in the third degree.
    10    A person is guilty of rape in the third degree when:
    11    1. He or she engages in [sexual intercourse]  vaginal  sexual  contact
    12  with another person who is incapable of consent by reason of some factor
    13  other than being less than seventeen years old;
    14    2.    Being twenty-one years old or more, he or she engages in [sexual
    15  intercourse] vaginal sexual contact with another person less than seven-
    16  teen years old; or
    17    3.  He or she engages in [sexual intercourse] vaginal  sexual  contact
    18  with  another  person  without  such person's consent where such lack of
    19  consent is by reason of some factor other than incapacity to consent.
    20    Rape in the third degree is a class E felony.
    21    § 3. Section 130.30 of the penal law, as amended by chapter 1  of  the
    22  laws of 2000, is amended to read as follows:
    23  § 130.30 Rape in the second degree.
    24    A person is guilty of rape in the second degree when:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04197-07-8

        S. 7216--A                          2
     1    1.  being  eighteen  years  old  or more, he or she engages in [sexual
     2  intercourse] vaginal  sexual  contact  with  another  person  less  than
     3  fifteen years old; or
     4    2.    he or she engages in [sexual intercourse] vaginal sexual contact
     5  with another person who is incapable  of  consent  by  reason  of  being
     6  mentally disabled or mentally incapacitated.
     7    It  shall be an affirmative defense to the crime of rape in the second
     8  degree as defined in subdivision one of this section that the  defendant
     9  was less than four years older than the victim at the time of the act.
    10    Rape in the second degree is a class D felony.
    11    §  4.  Section 130.35 of the penal law, as amended by chapter 1 of the
    12  laws of 2000, is amended to read as follows:
    13  § 130.35 Rape in the first degree.
    14    A person is guilty of rape in the first degree when he or she  engages
    15  in [sexual intercourse] vaginal sexual contact with another person:
    16    1. By forcible compulsion; or
    17    2. Who is incapable of consent by reason of being physically helpless;
    18  or
    19    3. Who is less than eleven years old; or
    20    4. Who is less than thirteen years old and the actor is eighteen years
    21  old or more.
    22    Rape in the first degree is a class B felony.
    23    § 5. Subdivision 1 of section 210.16 of the criminal procedure law, as
    24  added by chapter 571 of the laws of 2007, is amended to read as follows:
    25    1.  (a)  In a case where an indictment or a superior court information
    26  has been filed with a superior court which charges the defendant with  a
    27  felony  offense  enumerated in any section of article one hundred thirty
    28  of the penal law where an act of "[sexual  intercourse]  vaginal  sexual
    29  contact", "oral sexual conduct" or "anal sexual conduct," as those terms
    30  are defined in section 130.00 of the penal law, is required as an essen-
    31  tial element for the commission thereof, the court shall, upon a request
    32  of the victim within six months of the date of the crimes charged, order
    33  that  the defendant submit to human immunodeficiency virus (HIV) related
    34  testing. Testing of a defendant shall be ordered when the  result  would
    35  provide  medical benefit to the victim or a psychological benefit to the
    36  victim. Medical benefit shall be found when the following  elements  are
    37  satisfied:  (i)  a  decision  is pending about beginning, continuing, or
    38  discontinuing a medical intervention for the victim; and (ii) the result
    39  of an HIV test of the accused could  affect  that  decision,  and  could
    40  provide  relevant  information beyond that which would be provided by an
    41  HIV test of the victim. If testing the defendant would  provide  medical
    42  benefit to the victim or a psychological benefit to the victim, then the
    43  testing  is  to  be conducted by a state, county, or local public health
    44  officer designated by the  order.  Test  results,  which  shall  not  be
    45  disclosed  to  the court, shall be communicated to the defendant and the
    46  victim named in the order in accordance with the provisions  of  section
    47  twenty-seven hundred eighty-five-a of the public health law.
    48    (b)  For  the purposes of this section, the terms "victim" and "appli-
    49  cant" mean the person with whom the defendant is charged to have engaged
    50  in an act of "[sexual intercourse] vaginal sexual contact", "oral sexual
    51  conduct" or "anal sexual conduct", as those terms are defined in section
    52  130.00 of the penal law, where such conduct with  such  victim  was  the
    53  basis  for charging the defendant with an offense specified in paragraph
    54  (a) of this subdivision.

        S. 7216--A                          3
     1    § 6. Subdivision 1 of section 390.15 of the criminal procedure law, as
     2  amended by chapter 264 of the laws  of  2003,  is  amended  to  read  as
     3  follows:
     4    1.  (a)  In  any  case  where  the  defendant is convicted of a felony
     5  offense enumerated in any section of article one hundred thirty  of  the
     6  penal  law,  or  any subdivision of section 130.20 of such law, where an
     7  act of "[sexual  intercourse]  vaginal  sexual  contact",  "oral  sexual
     8  conduct" or "anal sexual conduct," as those terms are defined in section
     9  130.00  of  the  penal  law, is required as an essential element for the
    10  commission thereof, the court must, upon a request of the victim,  order
    11  that  the defendant submit to human immunodeficiency (HIV) related test-
    12  ing. The testing is to be conducted by a state, county, or local  public
    13  health officer designated by the order. Test results, which shall not be
    14  disclosed  to  the court, shall be communicated to the defendant and the
    15  victim named in the order in accordance with the provisions  of  section
    16  twenty-seven  hundred  eighty-five-a  of the public health law, but such
    17  results and disclosure need not be completed prior to the imposition  of
    18  sentence.
    19    (b)   For  the  purposes  of  this  section,  the  terms  "defendant",
    20  "conviction" and "sentence" mean and include, respectively, an "eligible
    21  youth," a "youthful offender finding" and a "youthful offender sentence"
    22  as those terms are defined in section 720.10 of this chapter.  The  term
    23  "victim"  means  the person with whom the defendant engaged in an act of
    24  "[sexual intercourse] vaginal sexual contact", "oral sexual conduct"  or
    25  "anal  sexual  conduct", as those terms are defined in section 130.00 of
    26  the penal law, where such conduct with such victim was the basis for the
    27  defendant's conviction of an offense specified in paragraph (a) of  this
    28  subdivision.
    29    §  7.  Subdivision  1  of  section  347.1  of the family court act, as
    30  amended by chapter 264 of the laws  of  2003,  is  amended  to  read  as
    31  follows:
    32    1.  (a)  In  any  proceeding where the respondent is found pursuant to
    33  section 345.1 or 346.1 of this  article,  to  have  committed  a  felony
    34  offense  enumerated  in any section of article one hundred thirty of the
    35  penal law, or any subdivision of section 130.20 of such law,  for  which
    36  an  act  of  "[sexual intercourse] vaginal sexual contact", "oral sexual
    37  conduct" or "anal sexual conduct", as those terms are defined in section
    38  130.00 of the penal law, is required as an  essential  element  for  the
    39  commission  thereof, the court must, upon a request of the victim, order
    40  that the respondent submit to human immunodeficiency (HIV) related test-
    41  ing. The testing is to be conducted by a state, county, or local  public
    42  health officer designated by the order. Test results, which shall not be
    43  disclosed  to the court, shall be communicated to the respondent and the
    44  victim named in the order in accordance with the provisions  of  section
    45  twenty-seven hundred eighty-five-a of the public health law.
    46    (b)  For  the  purposes  of  this section, the term "victim" means the
    47  person with whom the respondent engaged in an  act  of  "[sexual  inter-
    48  course]  vaginal  sexual contact", "oral sexual conduct" or "anal sexual
    49  conduct", as those terms are defined in section 130.00 of the penal law,
    50  where such conduct with such victim was the basis for the court's  find-
    51  ing  that  the respondent committed acts constituting one or more of the
    52  offenses specified in paragraph (a) of this subdivision.
    53    § 8. Subdivision (a) of section 130.16 of the penal law, as amended by
    54  chapter 264 of the laws of 2003, is amended to read as follows:
    55    (a) Establish that an attempt was made to engage the victim in [sexual
    56  intercourse] vaginal sexual contact, oral sexual  conduct,  anal  sexual

        S. 7216--A                          4
     1  conduct,  or  sexual  contact,  as  the  case may be, at the time of the
     2  occurrence; and
     3    §  9.  Subdivision 1 of section 130.20 of the penal law, as amended by
     4  chapter 1 of the laws of 2000, is amended to read as follows:
     5    1. He or she engages in [sexual intercourse]  vaginal  sexual  contact
     6  with another person without such person's consent; or
     7    § 10. Paragraphs (a) and (b) of subdivision 1 of section 130.75 of the
     8  penal law, as amended by chapter 264 of the laws of 2003, are amended to
     9  read as follows:
    10    (a)  he  or  she  engages in two or more acts of sexual conduct, which
    11  includes at  least  one  act  of  [sexual  intercourse]  vaginal  sexual
    12  contact,  oral  sexual conduct, anal sexual conduct or aggravated sexual
    13  contact, with a child less than eleven years old; or
    14    (b) he or she, being eighteen years old or more,  engages  in  two  or
    15  more  acts  of sexual conduct, which include at least one act of [sexual
    16  intercourse] vaginal sexual contact, oral sexual  conduct,  anal  sexual
    17  conduct  or  aggravated  sexual contact, with a child less than thirteen
    18  years old.
    19    § 11. Subdivision 1 of section 235.00 of the penal law, as amended  by
    20  chapter 264 of the laws of 2003, is amended to read as follows:
    21    1.  "Obscene."  Any  material  or  performance is "obscene" if (a) the
    22  average person, applying contemporary community  standards,  would  find
    23  that  considered  as  a whole, its predominant appeal is to the prurient
    24  interest in sex, and (b) it depicts or describes in a patently offensive
    25  manner,  actual  or  simulated:  [sexual  intercourse]  vaginal   sexual
    26  contact,  criminal  sexual act, sexual bestiality, masturbation, sadism,
    27  masochism, excretion or lewd exhibition of the genitals, and (c) consid-
    28  ered as a whole, it lacks serious  literary,  artistic,  political,  and
    29  scientific  value.  Predominant appeal shall be judged with reference to
    30  ordinary adults unless it appears from the character of the material  or
    31  the  circumstances  of  its dissemination to be designed for children or
    32  other [specially] especially susceptible audience.
    33    § 12. Subdivision 2 of section 235.22 of the penal law, as amended  by
    34  chapter 264 of the laws of 2003, is amended to read as follows:
    35    2.  by means of such communication he importunes, invites or induces a
    36  minor to engage in [sexual intercourse]  vaginal  sexual  contact,  oral
    37  sexual conduct or anal sexual conduct, or sexual contact with him, or to
    38  engage  in  a  sexual performance, obscene sexual performance, or sexual
    39  conduct for his benefit.
    40    § 13. Section 255.25 of the penal law, as amended by  chapter  320  of
    41  the laws of 2006, is amended to read as follows:
    42  § 255.25 Incest in the third degree.
    43    A  person  is  guilty  of  incest  in  the third degree when he or she
    44  marries or engages in [sexual intercourse] vaginal sexual contact,  oral
    45  sexual conduct or anal sexual conduct with a person whom he or she knows
    46  to  be  related  to  him  or her, whether through marriage or not, as an
    47  ancestor, descendant, brother or sister of either the whole or the  half
    48  blood, uncle, aunt, nephew or niece.
    49    Incest in the third degree is a class E felony.
    50    §  14. Subdivision 3 of section 263.00 of the penal law, as amended by
    51  chapter 264 of the laws of 2003, is amended to read as follows:
    52    3. "Sexual conduct" means actual  or  simulated  [sexual  intercourse]
    53  vaginal sexual contact, oral sexual conduct, anal sexual conduct, sexual
    54  bestiality,  masturbation, sado-masochistic abuse, or lewd exhibition of
    55  the genitals.

        S. 7216--A                          5
     1    § 15. Subdivision 3 of section 60.42 of the criminal procedure law, as
     2  amended by chapter 264 of the laws  of  2003,  is  amended  to  read  as
     3  follows:
     4    3. rebuts evidence introduced by the people of the victim's failure to
     5  engage  in  [sexual  intercourse]  vaginal  sexual  contact, oral sexual
     6  conduct, anal sexual conduct or sexual contact during a given period  of
     7  time; or
     8    §  16.  Subdivision  3  of  section  344.4 of the family court act, as
     9  amended by chapter 264 of the laws  of  2003,  is  amended  to  read  as
    10  follows:
    11    3.  rebuts  evidence  introduced  by  the  presentment  agency  of the
    12  victim's failure  to  engage  in  [sexual  intercourse]  vaginal  sexual
    13  contact,  oral  sexual  conduct,  anal  sexual conduct or sexual contact
    14  during a given period of time; or
    15    § 17. Subdivision 4 of section 170 of the domestic relations  law,  as
    16  amended  by  chapter  264  of  the  laws  of 2003, is amended to read as
    17  follows:
    18    (4) The commission of an act of adultery, provided that  adultery  for
    19  the  purposes  of articles ten, eleven, and eleven-A of this chapter, is
    20  hereby defined as the commission of an act of [sexual intercourse] vagi-
    21  nal sexual contact, oral sexual conduct or anal sexual  conduct,  volun-
    22  tarily  performed  by the defendant, with a person other than the plain-
    23  tiff after the marriage of plaintiff and defendant. Oral sexual  conduct
    24  and  anal sexual conduct include, but are not limited to, sexual conduct
    25  as defined in subdivision two of section 130.00 and subdivision three of
    26  section 130.20 of the penal law.
    27    § 18. Subdivision 4 of section 200 of the domestic relations  law,  as
    28  amended  by  chapter  264  of  the  laws  of 2003, is amended to read as
    29  follows:
    30    4. The commission of an act of adultery by the defendant; except where
    31  such offense is committed by the procurement or with the  connivance  of
    32  the  plaintiff  or  where there is voluntary cohabitation of the parties
    33  with the knowledge of the offense or  where  action  was  not  commenced
    34  within  five  years  after the discovery by the plaintiff of the offense
    35  charged or where the plaintiff has also been guilty  of  adultery  under
    36  such circumstances that the defendant would have been entitled, if inno-
    37  cent,  to  a  divorce,  provided  that adultery for the purposes of this
    38  subdivision is hereby defined as the commission of  an  act  of  [sexual
    39  intercourse]  vaginal sexual contact, oral sexual conduct or anal sexual
    40  conduct, voluntarily performed by the defendant,  with  a  person  other
    41  than  the  plaintiff after the marriage of plaintiff and defendant. Oral
    42  sexual conduct and anal sexual conduct include, but are not limited  to,
    43  sexual  conduct  as  defined  in  subdivision  two of section 130.00 and
    44  subdivision three of section 130.20 of the penal law.
    45    § 19. This act shall take effect on the ninetieth day after  it  shall
    46  have become a law and shall apply to any offense on or after such effec-
    47  tive date.
feedback