NY State Senate Bill 2009-S3412

Senate Bill S3412

2009-2010 Legislative Session

Establishes the crimes of aggravated rape, aggravated criminal sexual act and aggravated sexual abuse

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to codes
Mar 18, 2009	referred to codes

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2009-S3412 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§70.02, 130.65-a, 130.66, 130.67 & 130.70, add §§130.36, 130.51 & 130.71, Pen L; amd §720.10, CP L
Versions Introduced in Other Legislative Sessions:: 2011-2012: S753
2013-2014: S2240
2015-2016: S2994
2017-2018: S830
2019-2020: S1045

2009-S3412 (ACTIVE) - Summary

Increases the penalties for the violent sex offenses of rape, criminal sexual act and aggravated sexual abuse when committed in a forcible manner where an actor or accomplice is armed with or displays a deadly weapon, uses or threatens the use of a dangerous instrument or inflicts physical injury upon the victim.

2009-S3412 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3412

 TITLE OF BILL :

An act to amend the penal law, in relation to aggravated sexual
offenses; and to amend the criminal procedure law, in relation to
youthful offender status

 PURPOSE :

To provide a higher felony classification for certain forcible sex
crimes when such crimes are further aggravated by the presence or use
of a deadly weapon or dangerous instrument or by the infliction of
physical injury.

 SUMMARY OF PROVISIONS :

The Penal Law is amended by adding three new sections, 130.36, 130.51
and 130.71, which establish the crimes of aggravated rape, aggravated
sodomy and aggravated sexual abuse. The Penal Law and Criminal
Procedure Law are amended to reflect a higher felony classification
for certain forcible sex crimes.

 JUSTIFICATION :

"Forcible compulsion" describes a type of criminal conduct by which a

person who engages in sexual activity with another person is guilty of
the Class B felonies of first degree rape, first degree sodomy and
aggravated sexual abuse. The current definition of forcible compulsion
is the result of a number of amendments within the last decade which
have eliminated the requirement that the victim of a sexual attack
must offer "earnest resistance" or else lose all chance to
successfully prosecute the attacker. Submission to a sexual attack to
preserve one's life or safety is no longer considered as consent to a
sex crime. However, an unintentional consequence of this desired
reform is that "forcible compulsion" now encompasses a very broad
range of criminal behavior. The concept of forcible compulsion, for
example, has been extended to include an implied threat which places
the victim in fear that a third person will be kidnapped.
Furthermore, even if forcible compulsion is accomplished in a minimal
manner, current law does not differentiate between such conduct and
that which is accompanied by a serious aggravating factor such as the
use of a deadly weapon.

This bill does not seek to undo the progress made in the forcible
compulsion area. But it is clear that an attacker who possesses or
uses a deadly weapon or who inflicts physical injury either to compel
submission or as concomitant to the crime presents a higher disregard
for, and danger to, human life than that presented in the case of an
implied weaponless threat. The law should not continue to give equal
weight to vastly divergent criminal activities. Thus it is appropriate
that these forcible sex crimes when further aggravated by the use of
weapons or by the infliction of physical injury reflect that increased
seriousness by being classified at the A-II felony level.

 LEGISLATIVE HISTORY :

2008: S.388
2006: S.6400
2004: S.3316
2002: S.3007
2000: S.3336

 FISCAL IMPLICATIONS :

None.
 EFFECTIVE DATE :
The first day of November next succeeding the date of enactment into
law.

2009-S3412 (ACTIVE) - Bill Text download pdf

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

                                  3412

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 18, 2009
                               ___________

Introduced by Sens. YOUNG, ALESI, LARKIN, MORAHAN, PADAVAN -- read twice
  and ordered printed, and when printed to be committed to the Committee
  on Codes

AN  ACT  to  amend  the  penal  law,  in  relation  to aggravated sexual
  offenses; and to amend the criminal  procedure  law,  in  relation  to
  youthful offender status

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

  Section 1. Paragraphs (a), (b) and (c) of  subdivision  1  of  section
70.02  of  the penal law, paragraph (a) as amended by chapter 320 of the
laws of 2006, paragraph (b) as separately amended by  chapters  764  and
765 of the laws of 2005 and paragraph (c) as amended by chapter 7 of the
laws of 2007, are amended to read as follows:
  (a)  Class  B  violent felony offenses: an attempt to commit the class
A-I felonies of murder in  the  second  degree  as  defined  in  section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson  in the first degree as defined in section 150.20; manslaughter in
the first degree as defined in section 125.20,  aggravated  manslaughter
in  the  first  degree  as  defined in section 125.22, rape in the first
degree as defined in section 130.35, criminal sexual act  in  the  first
degree  as  defined  in  section  130.50, aggravated sexual abuse in the
[first] SECOND degree as defined in section  130.70,  course  of  sexual
conduct  against  a  child  in  the  first  degree as defined in section
130.75; assault in the  first  degree  as  defined  in  section  120.10,
kidnapping  in  the second degree as defined in section 135.20, burglary
in the first degree as defined in section 140.30, arson  in  the  second
degree  as  defined  in  section  150.15, robbery in the first degree as
defined in section 160.15, incest in the  first  degree  as  defined  in
section  255.27,  criminal possession of a weapon in the first degree as
defined in section 265.04, criminal use of a firearm in the first degree
as defined in section 265.09, criminal sale of a firearm  in  the  first

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07179-01-9

S. 3412                             2

degree  as  defined  in section 265.13, aggravated assault upon a police
officer or a peace officer as defined in section 120.11, gang assault in
the first degree as defined in section 120.07, intimidating a victim  or
witness  in  the  first  degree  as defined in section 215.17, hindering
prosecution of terrorism in the  first  degree  as  defined  in  section
490.35, criminal possession of a chemical weapon or biological weapon in
the  second  degree  as defined in section 490.40, and criminal use of a
chemical weapon or biological weapon in the third degree as  defined  in
section 490.47.
  (b)  Class  C violent felony offenses: an attempt to commit any of the
class B felonies set  forth  in  paragraph  (a);  aggravated  criminally
negligent homicide as defined in section 125.11, aggravated manslaughter
in  the  second  degree  as defined in section 125.21, aggravated sexual
abuse in the [second] THIRD degree as defined in section 130.67, assault
on a  peace  officer,  police  officer,  fireman  or  emergency  medical
services  professional as defined in section 120.08, gang assault in the
second degree as defined in  section  120.06,  burglary  in  the  second
degree  as  defined  in  section 140.25, robbery in the second degree as
defined in section 160.10, criminal possession of a weapon in the second
degree as defined in section 265.03, criminal use of a  firearm  in  the
second  degree  as defined in section 265.08, criminal sale of a firearm
in the second degree as defined in section 265.12, criminal  sale  of  a
firearm with the aid of a minor as defined in section 265.14, soliciting
or  providing  support  for  an  act of terrorism in the first degree as
defined in section 490.15, hindering prosecution  of  terrorism  in  the
second degree as defined in section 490.30, and criminal possession of a
chemical  weapon  or biological weapon in the third degree as defined in
section 490.37.
  (c) Class D violent felony offenses: an attempt to commit any  of  the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section  120.18, stalking in the first degree, as defined in subdivision
one of section 120.60, rape in the second degree as defined  in  section
130.30,  criminal  sexual act in the second degree as defined in section
130.45, sexual abuse in the first degree as defined in  section  130.65,
course of sexual conduct against a child in the second degree as defined
in  section 130.80, aggravated sexual abuse in the [third] FOURTH degree
as defined  in  section  130.66,  facilitating  a  sex  offense  with  a
controlled  substance  as defined in section 130.90, criminal possession
of a weapon in the third degree as defined  in  subdivision  five,  six,
seven  or  eight  of  section  265.02, criminal sale of a firearm in the
third degree as defined in section  265.11,  intimidating  a  victim  or
witness in the second degree as defined in section 215.16, soliciting or
providing  support  for  an  act  of  terrorism  in the second degree as
defined in section 490.10, and making a terroristic threat as defined in
section 490.20, falsely reporting an incident in  the  first  degree  as
defined  in  section 240.60, placing a false bomb or hazardous substance
in the first degree as defined in section 240.62, placing a  false  bomb
or hazardous substance in a sports stadium or arena, mass transportation
facility  or  enclosed  shopping  mall as defined in section 240.63, and
aggravated unpermitted use of indoor pyrotechnics in the first degree as
defined in section 405.18.
  S 2. The penal law is amended by adding  three  new  sections  130.36,
130.51 and 130.71 to read as follows:
S 130.36 AGGRAVATED RAPE.

S. 3412                             3

  A  MALE  IS GUILTY OF AGGRAVATED RAPE WHEN HE ENGAGES IN SEXUAL INTER-
COURSE WITH A FEMALE BY FORCIBLE COMPULSION AND WHEN, IN THE  COURSE  OF
THE  COMMISSION  OF  THE  CRIME  OR OF IMMEDIATE FLIGHT THEREFROM, HE OR
ANOTHER PARTICIPANT IN THE CRIME:
  1. IS ARMED WITH A DEADLY WEAPON; OR
  2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  3.  CAUSES  PHYSICAL  INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
THE CRIME; OR
  4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
  AGGRAVATED RAPE IS A CLASS A-II FELONY.
S 130.51 AGGRAVATED CRIMINAL SEXUAL ACT.
  A PERSON IS GUILTY OF AGGRAVATED CRIMINAL SEXUAL ACT WHEN  HE  OR  SHE
ENGAGES  IN  ORAL  SEXUAL  CONDUCT  OR  ANAL SEXUAL CONDUCT WITH ANOTHER
PERSON BY FORCIBLE COMPULSION AND WHEN, IN THE COURSE OF THE  COMMISSION
OF  THE  CRIME  OR  OF  IMMEDIATE  FLIGHT  THEREFROM, HE, SHE OR ANOTHER
PARTICIPANT IN THE CRIME:
  1. IS ARMED WITH A DEADLY WEAPON; OR
  2. USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  3. CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT  A  PARTICIPANT  IN
THE CRIME; OR
  4. DISPLAYS WHAT APPEARS TO BE A FIREARM.
  AGGRAVATED CRIMINAL SEXUAL ACT IS A CLASS A-II FELONY.
S 130.71 AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE.
  1.  A  PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE
WHEN HE OR SHE INSERTS A FINGER OR FOREIGN OBJECT IN THE VAGINA,  URETH-
RA,  PENIS  OR  RECTUM  OF ANOTHER PERSON BY FORCIBLE COMPULSION CAUSING
PHYSICAL INJURY TO SUCH PERSON AND WHEN, IN THE COURSE OF THE COMMISSION
OF THE CRIME OR OF  IMMEDIATE  FLIGHT  THEREFROM,  HE,  SHE  OR  ANOTHER
PARTICIPANT IN THE CRIME:
  (A) IS ARMED WITH A DEADLY WEAPON; OR
  (B) USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  (C)  CAUSES  PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT IN
THE CRIME; OR
  (D) DISPLAYS WHAT APPEARS TO BE A FIREARM.
  2. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE  THE
PROVISIONS OF THIS SECTION.
  AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE IS A CLASS A-II FELONY.
  S  3.  Section 130.65-a of the penal law, as added by chapter 1 of the
laws of 2000, is amended to read as follows:
S 130.65-a Aggravated sexual abuse in the [fourth] FIFTH degree.
  1. A person is guilty of aggravated sexual abuse in the [fourth] FIFTH
degree when:
  (a) He or she inserts a foreign object in the vagina,  urethra,  penis
or rectum of another person and the other person is incapable of consent
by reason of some factor other than being less than seventeen years old;
or
  (b) He or she inserts a finger in the vagina, urethra, penis or rectum
of another person causing physical injury to such person and such person
is  incapable  of consent by reason of some factor other than being less
than seventeen years old.
  2. Conduct performed for a valid medical purpose does not violate  the
provisions of this section.
  Aggravated  sexual  abuse  in  the  [fourth] FIFTH degree is a class E
felony.

S. 3412                             4

  S 4. Section 130.66 of the penal law, as added by chapter 181  of  the
laws  of 1996, subdivision 2 as added and subdivision 3 as renumbered by
chapter 1 of the laws of 2000, is amended to read as follows:
S 130.66 Aggravated sexual abuse in the [third] FOURTH degree.
  1. A person is guilty of aggravated sexual abuse in the [third] FOURTH
degree when he inserts a foreign object in the vagina, urethra, penis or
rectum of another person:
  (a) By forcible compulsion; or
  (b)  When  the other person is incapable of consent by reason of being
physically helpless; or
  (c) When the other person is less than eleven years old.
  2. A person is guilty of aggravated sexual abuse in the [third] FOURTH
degree when he or she inserts a foreign object in the  vagina,  urethra,
penis or rectum of another person causing physical injury to such person
and  such  person  is  incapable  of consent by reason of being mentally
disabled or mentally incapacitated.
  3. Conduct performed for a valid medical purpose does not violate  the
provisions of this section.
  Aggravated  sexual  abuse  in  the  [third] FOURTH degree is a class D
felony.
  S 5. Section 130.67 of the penal law, as added by chapter 450  of  the
laws of 1988, is amended to read as follows:
S 130.67  Aggravated sexual abuse in the [second] THIRD degree.
  1. A person is guilty of aggravated sexual abuse in the [second] THIRD
degree when he inserts a finger in the vagina, urethra, penis, or rectum
of another person causing physical injury to such person:
  (a) By forcible compulsion; or
  (b)  When  the other person is incapable of consent by reason of being
physically helpless; or
  (c) When the other person is less than eleven years old.
  2. Conduct performed for a valid medical purpose does not violate  the
provisions of this section.
  Aggravated  sexual  abuse  in  the  [second] THIRD degree is a class C
felony.
  S 6. Section 130.70 of the penal law, as amended by chapter 450 of the
laws of 1988, is amended to read as follows:
S 130.70 Aggravated sexual abuse in the [first] SECOND degree.
  1. A person is guilty of aggravated sexual abuse in the [first] SECOND
degree when he inserts a foreign object in the vagina, urethra, penis or
rectum of another person causing physical injury to such person:
  (a) By forcible compulsion; or
  (b) When the other person is incapable of consent by reason  of  being
physically helpless; or
  (c) When the other person is less than eleven years old.
  2.  Conduct performed for a valid medical purpose does not violate the
provisions of this section.
  Aggravated sexual abuse in the [first] SECOND  degree  is  a  class  B
felony.
  S  7. Subdivisions 2 and 3 of section 720.10 of the criminal procedure
law, subdivision 2 as amended by chapter 416 of the laws of 1986,  para-
graph (a) of subdivision 2 as amended by chapter 316 of the laws of 2006
and  subdivision  3  as  amended by chapter 264 of the laws of 2003, are
amended to read as follows:
  2.  "Eligible youth" means a youth who  is  eligible  to  be  found  a
youthful offender.  Every youth is so eligible unless:

S. 3412                             5

  (a)  the  conviction  to be replaced by a youthful offender finding is
for (i) a class A-I or class A-II felony, or (ii)  an  armed  felony  as
defined  in subdivision forty-one of section 1.20, except as provided in
subdivision three, or (iii) rape in the first  degree,  criminal  sexual
act  in  the  first  degree,  or  aggravated  sexual abuse IN THE SECOND
DEGREE, except as provided in subdivision three, or
  (b) such youth has previously been convicted and sentenced for a felo-
ny, or
  (c)  such youth has previously been adjudicated  a  youthful  offender
following  conviction  of  a  felony or has been adjudicated on or after
September first, nineteen hundred seventy-eight  a  juvenile  delinquent
who  committed  a  designated  felony act as defined in the family court
act.
  3.  Notwithstanding the provisions of subdivision two, a youth who has
been convicted of an armed felony  offense  or  of  rape  in  the  first
degree,  criminal  sexual  act in the first degree, or aggravated sexual
abuse IN THE SECOND DEGREE is an eligible youth if the court  determines
that one or more of the following factors exist: (i)  mitigating circum-
stances  that  bear  directly  upon  the  manner  in which the crime was
committed; or (ii) where the defendant was not the sole  participant  in
the  crime,  the defendant's participation was relatively minor although
not so minor as to constitute a defense to the prosecution.   Where  the
court  determines  that  the  eligible youth is a youthful offender, the
court shall make a statement on the record of the reasons for its deter-
mination, a transcript of which shall be forwarded to the state division
of criminal  justice  services,  to  be  kept  in  accordance  with  the
provisions  of subdivision three of section eight hundred thirty-seven-a
of the executive law.
  S 8. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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Senate Bill S3412

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Sponsored By

Catharine Young

Archive: Last Bill Status - In Senate Committee Codes Committee

co-Sponsors

James S. Alesi

William Larkin

Thomas P. Morahan

Frank Padavan

2009-S3412 (ACTIVE) - Details

2009-S3412 (ACTIVE) - Summary

2009-S3412 (ACTIVE) - Sponsor Memo

2009-S3412 (ACTIVE) - Bill Text download pdf

Comments