BILL NUMBER:S5711

TITLE OF BILL:

An act
to amend the mental hygiene law and the penal law, in relation to
disqualification of employment for certain criminal history information
and deeming an individual with a developmental disability is incapable
of giving consent

PURPOSE OF BILL:

This bill would: (1) prohibit the Office for People With Developmental
Disabilities (OPWDD) and authorized agencies from hiring individuals
convicted of certain violent and serious crimes; and (2) provide that
an individual with a developmental disability who is receiving
services from OPWDD or an agency operated, certified, authorized or
funded through OPWDD is incapable of consenting to sexual contact
with an employee, intern, consultant, contractor or volunteer of such
office or agency where the individual receives services.

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend the Mental Hygiene Law (MHL) to add
a new section 13.40 to provide that OPWDD and authorized agencies may
not hire an individual who has been convicted of certain crimes,
              

including homicide, sex offenses, felony level assaults, endangering
the welfare of a child, incompetent of physically disabled person,
kidnapping, robbery, any attempt to commit one of the specified
crimes, or any comparable offense in any other jurisdiction.

Section 2 of the bill would amend Penal Law § 130.05(3) to add a new
paragraph (i) to provide that, for purposes of determining whether an
individual can consent to sexual contact for purposes of criminal
liability under Article 130 of the Penal Law, an individual with a
developmental disability cannot consent if he or she is receiving
services from OPWDD or an agency operated, certified, authorized or
funded through OPWDD and the actor is an employee, intern,
consultant, contractor or volunteer of such agency where the
individual receives services.

Section 3 of the bill would provide for an immediate effective date.

EXISTING LAW:

Civil Services Law § 50 provides authorization for criminal background
checks for prospective State employees. Labor Law . 201-a further
authorizes fingerprinting of State employees. MHL § 16.3 3 authorizes
criminal background checks for prospective operators, volunteers and
employees of service providers that contract with, are approved by,
or are otherwise authorized to provide services, provided that the
person "will have regular and substantial unsupervised or unrestricted
physical contact with the clients of such provider."

Executive Law § 845-b sets forth the procedures for the conduct of
criminal background checks and the rights and obligations of the


parties involved, including State agencies that conduct the
background checks, employing private sector agencies and the
individuals who are fingerprinted. Section 845-b provides that where
the criminal history information for a subject reveals: (1) a
conviction at any time for a sex offense; (2) a felony conviction
within the past ten years involving violence; or (3) a conviction for
endangering the welfare of an incompetent or physically disabled
person pursuant to section 260.25 of the Penal Law, or any comparable
offense in any 'other jurisdiction, the fingerprinting agency (OPWDD)
shall deny employment, disapprove the application or direct the
employing agency to do so unless it determines, in its discretion,
that approval will not in any way jeopardize the health, safety or
welfare of the beneficiaries of the services.

Article 23-A of the Correction Law sets forth the standard for
evaluation of criminal history information. Correction Law § 752
provides that employment or licensure may not be denied to an
applicant by reason of prior criminal conviction(s) unless: (1) there
is a direct relationship between one or more of the criminal offenses
and the specific license or employment sought, or (2) the granting of
employment/license would involve an unreasonable risk to property or
to the safety or welfare of specific individuals or the general
public. Correction Law § 753(1) mandates that review of the criminal
history record be based on consideration of nine statutory criteria,
including, among other factors, the time elapsed since the offense,
the individual's age at the time of the occurrence, the seriousness
of the offense, the specific duties which the individual will
perform, and "[t]he public policy of the state... to encourage the
licensure and employment of persons previously convicted of one or
more criminal offenses."

Article 130 of the Penal Law governs criminal liability for sex
offenses.

LEGISLATIVE HISTORY:

This is a new bill.

STATEMENT IN SUPPORT:

Protecting the safety and welfare of individuals receiving services in
the OPWDD system must be the highest priority. This bill would
heighten protections for individuals receiving services in the OPWDD
system and ensure that individuals employed in the system are of the
highest caliber by prohibiting the employment of persons who have
been convicted of certain violent and serious crimes. While most
criminal convictions would be evaluated under the standards set forth
in the Executive Law and the Corrections Law, certain individuals who
have committed the most heinous of crimes would be ineligible for
employment. This would include convictions for offenses such as
homicides, sex crimes, arsons, and sexual performance by a child, and
felony level assaults, robberies, kidnappings and endangering the
welfare of a child, vulnerable elderly person or incompetent person.
All other criminal convictions will continue to be reviewed in
accordance with the standard set forth in Correction Law Article 23-A
and Executive Law § 845-b.


This bill would also enhance the safety of individuals who receive
services from OPWDD or authorized agencies by making it clear that
such individuals are legally incapable of consenting to sexual
contact with employees or other similar individuals who provide
services to them. Under Penal Law § 130.05(1), lack of consent is an
element of all sex offenses defined in Penal Law Article 130.
Recognizing that consent is not-truly voluntary when a perpetrator is
in a special position of authority over a victim, the Penal Law
§130.05(3) thereafter provides that certain individuals are legally
incapable of consenting to sexual contact, including certain .
individuals who are incarcerated and in the custody of the Department
of Corrections and Community Supervision (DOCCS), or in the care of
the Office of Children and Family Services (OCFS). There is no
similar provision that an individual with a developmental disability
who is receiving services in the OPWDD system is incapable of
consenting to sexual contact with employees of OPWDD or the agency in
which they receive services, even though these employees are in the
same special positions of authority as DOCCS or OCFS employees.

While such contact is considered sexual abuse under OPWDD regulations,
there is no presumption in the Penal Law that such contact is
criminal. Making this amendment will send a clear message to
employees, interns, consultants, contractors or volunteers of such
agencies that engaging in sexual contact with individuals who are
receiving services will not be tolerated.

It also will ensure that such behavior will be effectively punished. A
review of cases involving sexual assaults by employees against
consumers receiving services in the OPWDD system has shown that in a
majority of cases law enforcement officials have been unable to
prosecute alleged offenders. Generally, law enforcement took action
only when there were eyewitnesses to the crime or physical evidence
substantiating the use of force. In addition, in many cases,
consumers initially denied the abuse out of fear that something would
happen to the person on whom they relied for their daily care. This
bill would appropriately give prosecutors the ability to establish
lack of consent based on the perpetrators' relationship of authority
over the consumer, just as is done for similarly situated victims in
the OCFS and DOCCS systems.
As a result, individuals receiving services in the OPWDD system would
receive the highest level of protection from sexual advances by
individuals employed by OPWDD or authorized agencies, and staff who
engage in this criminal behavior would be appropriately subject to
criminal penalties.

BUDGET IMPLICATIONS:

This bill would have no fiscal implications.

EFFECTIVE DATE:

This bill would take effect immediately.