S T A T E   O F   N E W   Y O R K
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                                 1358--A
    Cal. No. 460

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced by Sens. LITTLE, LANZA -- read twice and ordered printed, and
  when  printed to be committed to the Committee on Codes -- recommitted
  to the Committee on Codes in accordance with Senate Rule 6, sec. 8  --
  reported  favorably  from  said committee, ordered to first and second
  report, amended on second report, ordered to a third reading,  and  to
  be  reprinted  as  amended,  retaining its place in the order of third
  reading

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 (i) of subdivision 3 of section  130.05  of  the  penal
law, as added by section 2 of part G of chapter 501 of the laws of 2012,
is amended and a new paragraph (j) is added to read as follows:
  (i)  a  resident  or  inpatient  of  a  residential facility operated,
licensed or certified by (i) the  office  of  mental  health;  (ii)  the
office  for  people with developmental disabilities; or (iii) the office
of alcoholism and substance abuse services, and the actor is an employee
of the facility not married to such resident or inpatient. For  purposes
of  this  paragraph,  "employee" means either: an employee of the agency
operating the residential facility, who knows or reasonably should  know
that  such  person  is  a resident or inpatient of such facility and who
provides direct care services,  case  management  services,  medical  or
other  clinical services, habilitative services or direct supervision of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD01202-04-4

S. 1358--A                          2

the residents in the facility in which the resident resides; or an offi-
cer or other employee, consultant, contractor or volunteer of the  resi-
dential facility, who knows or reasonably should know that the person is
a  resident of such facility and who is in direct contact with residents
or inpatients; provided, however, that the provisions of this  paragraph
shall  only  apply  to  a  consultant, contractor or volunteer providing
services pursuant to a contractual arrangement with the agency operating
the residential facility or, in the  case  of  a  volunteer,  a  written
agreement  with such facility, provided that the person received written
notice concerning the provisions of this  paragraph;  provided  further,
however,  "employee"  shall  not  include  a person with a developmental
disability who is or was receiving services and is also an employee of a
service provider and who has sexual contact with another service recipi-
ent who is a consenting adult who has consented to such contact[.]; OR
  (J) A STUDENT AT AN ELEMENTARY OR SECONDARY SCHOOL, AND THE ACTOR:
  (I) IS A SCHOOL EMPLOYEE AT THE SAME SCHOOL SUCH STUDENT ATTENDS, AND
  (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.