S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   736

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  M.  of A. GUNTHER, GALEF, BENEDETTO, WEISENBERG, REILLY,
  SPANO, JAFFEE, HOOPER, FIELDS, SAYWARD,  TOWNSEND,  DUPREY  --  Multi-
  Sponsored  by  --  M.  of  A.  ALFANO, BALL, BARCLAY, CALHOUN, CROUCH,
  DelMONTE, ERRIGO, GABRYSZAK, GIGLIO, HYER-SPENCER, JOHN, KOON,  McKEV-
  ITT,  MILLER,  MOLINARO, OAKS, PERRY, PHEFFER, QUINN, RAIA, SCHROEDER,
  STIRPE, SWEENEY, THIELE, WALKER --  read  once  and  referred  to  the
  Committee on Codes

AN  ACT to amend the penal law, in relation to providing that an elemen-
  tary or secondary school student shall be incapable of  consenting  to
  sexual conduct with a school employee

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 130.00 of the penal law is amended by adding a  new
subdivision 14 to read as follows:
  14.  "SCHOOL  EMPLOYEE" SHALL MEAN ANY PERSON DEFINED AS AN "EMPLOYEE"
OR "VOLUNTEER" PURSUANT TO SECTION ELEVEN  HUNDRED  TWENTY-FIVE  OF  THE
EDUCATION LAW.
  S  2.  Paragraph  (h)  of subdivision 3 of section 130.05 of the penal
law, as amended by chapter 264 of the laws of 2003, is amended and a new
paragraph (i) is added to read as follows:
  (h) a client or patient and the actor is a  health  care  provider  or
mental  health  care  provider  charged with rape in the third degree as
defined in section 130.25, criminal sexual act in the  third  degree  as
defined  in section 130.40, aggravated sexual abuse in the fourth degree
as defined in section 130.65-a, or sexual abuse in the third  degree  as
defined in section 130.55, and the act of sexual conduct occurs during a
treatment session, consultation, interview, or examination[.]; OR
  (I) A STUDENT AT AN ELEMENTARY OR SECONDARY SCHOOL, AND THE ACTOR:
  (I) IS A SCHOOL EMPLOYEE AT THE SAME SCHOOL SUCH STUDENT ATTENDS, AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00198-01-9
              

A. 736                              2

  (II)  IS EIGHTEEN YEARS OF AGE OR OLDER AND MORE THAN FOUR YEARS OLDER
THAN SUCH STUDENT AT THE TIME OF THE ACT, AND
  (III) IS NOT MARRIED TO SUCH STUDENT, AND
  (IV)  KNOWS OR REASONABLY SHOULD KNOW THAT SUCH PERSON IS A STUDENT AT
SUCH SCHOOL, AND
  (V) HE OR SHE IS NOT A STUDENT AT THE SAME SCHOOL.
  S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.