S T A T E   O F   N E W   Y O R K
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    S. 5638                                                  A. 7671

                       2015-2016 Regular Sessions

                      S E N A T E - A S S E M B L Y

                              May 21, 2015
                               ___________

IN  SENATE  --  Introduced  by Sen. MONTGOMERY -- read twice and ordered
  printed, and when printed to be committed to the Committee on  Judici-
  ary

IN  ASSEMBLY  -- Introduced by M. of A. WALKER -- read once and referred
  to the Committee on Codes

AN ACT to amend the civil practice law and rules, the criminal procedure
  law, the executive law, and the legislative law in relation to the use
  in evidence of the fact of possession or presence on the  premises  of
  condoms  and other sexual and reproductive health devices; and repeal-
  ing certain provisions of the criminal procedure law relating thereto

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

  Section 1. This act shall be known and may be cited as the "End crimi-
nalization of condoms act".
  S 2. Legislative findings. The legislature hereby finds that promoting
and  protecting  health  and  respecting and fulfilling human rights are
necessarily  linked,  and  that  health-oriented  and  rights-based  law
enforcement efforts are central to the effective provision of government
services for the benefit of the people of the State. Article 17, section
3 of the New York constitution requires that the legislature protect and
promote  the  health  of  the  inhabitants  of this state as a matter of
public concern. Despite these provisions, for  purposes  of  prosecuting
certain  criminal,  civil  and administrative offenses, reproductive and
sexual health tools, including condoms, are currently  being  destroyed,
confiscated,  or  used  as  evidence  by  law enforcement officers. This
legislation is intended to strengthen the public health of all New York-
ers, including the most vulnerable, while preserving the ability of  law
enforcement  to  prosecute  other crimes such as felony sexual offenses.
The purpose of this bill is to avoid the disparate impact of  the  prac-
tice of citing condoms and other reproductive and sexual health tools as

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11221-02-5
              

S. 5638                             2                            A. 7671

evidence  upon  survivors  of  trafficking  and  people  who  are or are
profiled as being engaged in the sex trades.
  S  3.  The  civil  practice  law  and rules is amended by adding a new
section 4519-a to read as follows:
  S 4519-A. POSSESSION OF REPRODUCTIVE OR SEXUAL HEALTH DEVICES; RECEIPT
INTO EVIDENCE.  1. THE FATE OF POSSESSION OF A CONDOM OR OTHER REPRODUC-
TIVE OR SEXUAL HEALTH DEVICE MAY NOT BE  RECEIVED  IN  EVIDENCE  IN  ANY
TRIAL,  HEARING  OR  PROCEEDING  PURSUANT  TO SUBDIVISION ONE OF SECTION
TWELVE AND ARTICLE TEN OF THE MULTIPLE DWELLING LAW,  SECTIONS  TWELVE-A
AND  TWENTY-THREE  HUNDRED  TWENTY OF THE PUBLIC HEALTH LAW, SECTION TWO
HUNDRED THIRTY-ONE OF THE REAL  PROPERTY  LAW  OR  SUBDIVISION  FIVE  OF
SECTION  SEVEN  HUNDRED  ELEVEN AND SECTION SEVEN HUNDRED FIFTEEN OF THE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, OR BY ANY LAW, LOCAL  LAW  OR
ORDINANCE OF A POLITICAL SUBDIVISION OF THIS STATE, OR BY ANY WORD, RULE
OR  REGULATION  OF ANY GOVERNMENTAL INSTRUMENTALITY AUTHORIZED BY LAW TO
ADOPT THE SAME AS EVIDENCE OF PROSTITUTION,  PATRONIZING  A  PROSTITUTE,
PROMOTING  PROSTITUTION, PERMITTING PROSTITUTION, MAINTAINING A PREMISES
FOR PROSTITUTION, LEWDNESS OR ASSIGNATION, MAINTAINING  A  BAWDY  HOUSE,
COMPELLING PROSTITUTION, OR SEX TRAFFICKING.
  2. "REPRODUCTIVE OR SEXUAL HEALTH DEVICE" SHALL INCLUDE ANY CONTRACEP-
TIVE  OR  OTHER  TOOL  USED  TO PREVENT UNWANTED PREGNANCY OR THE TRANS-
MISSION OF HIV OR OTHER SEXUALLY TRANSMITTED DISEASES, INCLUDING BUT NOT
LIMITED  TO  MALE  CONDOMS,  FEMALE  CONDOMS,  LUBRICANTS,  PRE-EXPOSURE
PROPHYLAXIS ("PREP"), POST-EXPOSURE PROPHYLAXIS ("PEP"), HIV ANTI-RETRO-
VIRAL MEDICATION, SPERMICIDE, HORMONAL METHODS, EMERGENCY CONTRACEPTION,
DIAPHRAGM, CERVICAL CAP, OR SPONGE.
  3.  "POSSESSION"  MEANS  TO  HAVE  PHYSICAL POSSESSION OR OTHERWISE TO
EXERCISE DOMINION OR CONTROL OVER TANGIBLE PROPERTY.
  4. THE FACT OF POSSESSION OR PRESENCE IN A PREMISES OF A  REPRODUCTIVE
OR SEXUAL HEALTH DEVICE SHALL NOT BE INTRODUCED AS EVIDENCE BY ANY MEANS
FOR  ANY OF THE AFOREMENTIONED PURPOSES, INCLUDING BY EITHER PHYSICAL OR
TESTIMONIAL EVIDENCE.
  S 4. The criminal procedure law is amended by  adding  a  new  section
60.49 to read as follows:
S 60.49 POSSESSION OF REPRODUCTIVE OR SEXUAL HEALTH DEVICE; RECEIPT INTO
          EVIDENCE.
  1.  EVIDENCE  THAT  A  PERSON  WAS  IN POSSESSION OF A CONDOM OR OTHER
REPRODUCTIVE OR SEXUAL HEALTH DEVICE MAY NOT BE ADMITTED AT  ANY  TRIAL,
HEARING  OR  OTHER  PROCEEDING  IN  A PROSECUTION FOR ANY OFFENSE, OR AN
ATTEMPT TO COMMIT ANY OFFENSE, DEFINED IN ARTICLE TWO HUNDRED THIRTY  OR
SECTION  240.37  OF THE PENAL LAW, OR SECTION 6512 OF THE EDUCATION LAW,
OR ANY LAW, LOCAL LAW OR ORDINANCE OF A POLITICAL  SUBDIVISION  OF  THIS
STATE, OR ANY WORD, RULE OR REGULATION OF ANY GOVERNMENTAL INSTRUMENTAL-
ITY AUTHORIZED BY LAW TO ADOPT THE SAME, FOR THE PURPOSE OF ESTABLISHING
PROBABLE  CAUSE  FOR  AN  ARREST  OR  PROVING ANY PERSON'S COMMISSION OR
ATTEMPTED COMMISSION OF SUCH OFFENSE, AS  EVIDENCE  OF  PROSTITUTION  OR
TRAFFICKING-RELATED ACTIVITY.
  2. "REPRODUCTIVE OR SEXUAL HEALTH DEVICE" SHALL INCLUDE ANY CONTRACEP-
TIVE  OR  OTHER  TOOL  USED  TO PREVENT UNWANTED PREGNANCY OR THE TRANS-
MISSION OF HIV OR OTHER SEXUALLY TRANSMITTED DISEASES, INCLUDING BUT NOT
LIMITED TO MALE CONDOMS, FEMALE CONDOMS, LUBRICANT, PRE-EXPOSURE PROPHY-
LAXIS ("PREP"), POST-EXPOSURE PROPHYLAXIS ("PEP"),  HIV  ANTI-RETROVIRAL
MEDICATION,   SPERMICIDE,  HORMONAL  METHODS,  EMERGENCY  CONTRACEPTION,
DIAPHRAGM, CERVICAL CAP, OR SPONGE.
  3. "POSSESSION" MEANS TO HAVE  PHYSICAL  POSSESSION  OR  OTHERWISE  TO
EXERCISE DOMINION OR CONTROL OVER TANGIBLE PROPERTY.

S. 5638                             3                            A. 7671

  4.  THE  FACT OF POSSESSION OR PRESENCE ON THE PREMISES OF A REPRODUC-
TIVE OR SEXUAL HEALTH DEVICE SHALL NOT BE INTRODUCED AS EVIDENCE BY  ANY
MEANS  FOR ANY OF THE AFOREMENTIONED PURPOSES, INCLUDING BY EITHER PHYS-
ICAL OR TESTIMONIAL EVIDENCE.
  S  5. Paragraph (d) of subdivision 1 of section 160.10 of the criminal
procedure law is REPEALED.
  S 6. The opening paragraph of subdivision 1, subdivision 2 and  subdi-
vision  3  of  section 160.55 of the criminal procedure law, the opening
paragraph of subdivision 1 as amended by chapter  169  of  the  laws  of
1994,  subdivision  2  as amended by chapter 476 of the laws of 2009 and
subdivision 3 as amended by chapter 249 of the laws of 1981  and  renum-
bered  by  chapter  142  of  the  laws  of  1991, are amended to read as
follows:
  Upon the termination of a criminal  action  or  proceeding  against  a
person  by  the  conviction  of such person of a traffic infraction or a
violation, other than [a violation of loitering as  described  in  para-
graph  (d)  or  (e) of subdivision one of section 160.10 of this chapter
or] the violation of operating a motor vehicle while ability impaired as
described in subdivision one of section eleven hundred ninety-two of the
vehicle and traffic law, unless the district attorney upon  motion  with
not  less  than  five  days notice to such person or his or her attorney
demonstrates to the satisfaction of the  court  that  the  interests  of
justice  require otherwise, or the court on its own motion with not less
than five days notice to such person or his or her  attorney  determines
that  the  interests of justice require otherwise and states the reasons
for such determination on the record, the clerk  of  the  court  wherein
such  criminal  action  or  proceeding  was terminated shall immediately
notify the commissioner of the division of criminal justice services and
the heads of all appropriate police departments and other  law  enforce-
ment  agencies  that  the action has been terminated by such conviction.
Upon receipt of notification of such termination:
  2. A report  of  the  termination  of  the  action  or  proceeding  by
conviction of a traffic violation or a violation other than [a violation
of  loitering as described in paragraph (d) or (e) of subdivision one of
section 160.10 of this title or] the  violation  of  operating  a  motor
vehicle  while  ability  impaired  as  described  in  subdivision one of
section eleven hundred ninety-two of the vehicle and traffic law,  shall
be  sufficient  notice of sealing to the commissioner of the division of
criminal justice services unless the  report  also  indicates  that  the
court  directed  that  the  record  not  be  sealed  in the interests of
justice. Where the court has determined pursuant to subdivision  one  of
this  section that sealing is not in the interests of justice, the clerk
of the court shall include notification of  that  determination  in  any
report  to such division of the disposition of the action or proceeding.
When the defendant has been found guilty of a violation of harassment in
the second degree and it was determined pursuant to subdivision  eight-a
of  section  170.10  of  this  title  that  such violation was committed
against a member of the same family or household as the  defendant,  the
clerk  of  the court shall include notification of that determination in
any report to such division of the disposition of the action or proceed-
ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d)
of subdivision one of this section.
  3. A person against whom a criminal action or  proceeding  was  termi-
nated  by  such person's conviction of a traffic infraction or violation
other than [a violation of loitering as described in  paragraph  (d)  or
(e)  of  subdivision  one  of  section  160.10  of  this chapter or] the

S. 5638                             4                            A. 7671

violation of  operating  a  motor  vehicle  while  ability  impaired  as
described in subdivision one of section eleven hundred ninety-two of the
vehicle  and  traffic  law, prior to the effective date of this section,
may  upon  motion apply to the court in which such termination occurred,
upon not less than twenty days notice to the district attorney,  for  an
order granting to such person the relief set forth in subdivision one of
this section, and such order shall be granted unless the district attor-
ney  demonstrates to the satisfaction of the court that the interests of
justice require otherwise.
  S 7. Section 841 of the executive law  is  amended  by  adding  a  new
subdivision 7-b to read as follows:
  7-B.  TAKE  SUCH  STEPS  AS MAY BE NECESSARY TO ENSURE THAT ALL POLICE
OFFICERS AND PEACE OFFICERS CERTIFIED PURSUANT TO SUBDIVISION  THREE  OF
THIS  SECTION  RECEIVE APPROPRIATE INSTRUCTION REGARDING THE EVIDENTIARY
PROHIBITION SET FORTH IN SECTION 60.47 OF THE CRIMINAL PROCEDURE LAW AND
SECTION FORTY-FIVE HUNDRED NINETEEN-A OF  THE  CIVIL  PRACTICE  LAW  AND
RULES  RELATING  TO  THE USE OF CONDOMS AND OTHER REPRODUCTIVE OR SEXUAL
HEALTH DEVICES AS EVIDENCE IN CERTAIN TRIALS, HEARINGS  OR  PROCEEDINGS,
OR AS A BASIS FOR PROBABLE CAUSE FOR ARREST, INCLUDING THAT UNAUTHORIZED
SEIZURE  OR  CONFISCATION  OF  CONDOMS  AND OTHER REPRODUCTIVE OR SEXUAL
HEALTH DEVICES IS A BREACH OF PUBLIC POLICY.
  S 8. The legislative law is amended by adding a new section 49 to read
as follows:
  S 49. REQUIREMENT WITH RESPECT TO BILLS AMENDING  CERTAIN  LAWS  WHICH
AFFECT HEALTH AND HUMAN RIGHTS. WHENEVER A COMMITTEE FAVORABLY REPORTS A
BILL TO AMEND ARTICLES TWO HUNDRED THIRTY OR SECTION 240.37 OF THE PENAL
LAW,  OR, AT THE DISCRETION OF THE VOTING MAJORITY OF THE COMMITTEE, ANY
BILL WHICH, IF PASSED, WOULD INCREASE OR DECREASE THE NUMBER  OF  ARRES-
TEES  OR  PRETRIAL OR SENTENCED POPULATION OF CORRECTIONAL FACILITIES IN
THIS STATE, A MAJORITY OF THE COMMITTEE MEMBERS VOTING MAY REQUEST  THAT
A HEALTH AND HUMAN RIGHTS IMPACT STATEMENT BE PREPARED.  THE LEGISLATURE
SHALL  BY  CONCURRENT  RESOLUTION  OF  THE SENATE AND ASSEMBLY PRESCRIBE
RULES REQUIRING HEALTH AND HUMAN RIGHTS IMPACT STATEMENTS TO  ACCOMPANY,
ON  A SEPARATE FORM, BILLS AND AMENDMENTS TO BILLS AFTER SUCH BILLS HAVE
BEEN REPORTED FROM COMMITTEE.  HEALTH AND HUMAN RIGHTS IMPACT STATEMENTS
SHALL BE PREPARED BEFORE THE BILL IS CONSIDERED FOR FINAL  PASSAGE.  THE
STATEMENT  SHALL INDICATE WHETHER THE BILL WOULD HAVE A DISPARATE IMPACT
BY  RACE,  ETHNICITY,  RELIGION,  AGE,  GENDER,   GENDER   IDENTITY   OR
EXPRESSION, SEXUAL ORIENTATION, IMMIGRATION STATUS, DISABILITY, OR HOUS-
ING  STATUS  COMPOSITION OF THE ARRESTEE AND CORRECTIONAL FACILITY POPU-
LATION AND AN EXPLANATION OF THAT IMPACT. ANY IMPACT  STATEMENT  PRINTED
WITH  OR  PREPARED  FOR A BILL IS SOLELY FOR THE PURPOSE OF INFORMATION,
SUMMARIZATION AND EXPLANATION FOR MEMBERS OF THE LEGISLATURE  AND  SHALL
NOT  BE  CONSTRUED  TO REPRESENT THE INTENT OF THE LEGISLATURE OR EITHER
CHAMBER THEREOF FOR ANY PURPOSE. EACH IMPACT STATEMENT  SHALL  BEAR  THE
FOLLOWING  DISCLAIMER:  "THE  FOLLOWING  HEALTH  AND HUMAN RIGHTS IMPACT
STATEMENT IS PREPARED FOR THE BENEFIT OF THE MEMBERS OF THE LEGISLATURE,
SOLELY FOR PURPOSES OF INFORMATION, SUMMARIZATION  AND  EXPLANATION  AND
DOES NOT REPRESENT THE INTENT OF THE LEGISLATURE OR EITHER CHAMBER THER-
EOF FOR ANY PURPOSE."
  S  9.  The  legislative law is amended by adding a new section 83-n to
read as follows:
  S 83-N. LEGISLATIVE COMMISSION ON HEALTH AND HUMAN RIGHTS.
  1. THE LEGISLATURE HEREBY FINDS THAT PROMOTING AND  PROTECTING  HEALTH
AND  RESPECTING  AND FULFILLING HUMAN RIGHTS ARE NECESSARILY LINKED, AND
THAT COORDINATION BETWEEN HEALTH AND LAW ENFORCEMENT EFFORTS IS  CENTRAL

S. 5638                             5                            A. 7671

TO THE EFFECTIVE PROVISION OF GOVERNMENT SERVICES FOR THE BENEFIT OF THE
PEOPLE OF THE STATE.
  2.  A  LEGISLATIVE  COMMISSION  ON  HEALTH  AND HUMAN RIGHTS IS HEREBY
ESTABLISHED TO EXAMINE, EVALUATE  AND  MAKE  RECOMMENDATIONS  CONCERNING
RIGHTS-BASED  APPROACHES  TO  HEALTH  AND LAW ENFORCEMENT INTERVENTIONS.
THE COMMISSION SHALL ACT AS  A  MECHANISM  FOR  ONGOING  AND  MEANINGFUL
INVOLVEMENT  OF  THOSE  WHO ARE OR POTENTIALLY COULD BE AFFECTED BY THIS
LAW, INCLUDING, BUT NOT LIMITED TO, SURVIVORS OF TRAFFICKING, PEOPLE WHO
ARE OR ARE PROFILED AS BEING INVOLVED IN THE SEX TRADES, COMMUNITIES  OF
COLOR,  LESBIAN,  GAY,  BISEXUAL  AND  TRANSGENDER PEOPLE, AND PEOPLE IN
CUSTODIAL SETTINGS. THE COMMISSION SHALL PROVIDE MONITORING  AND  EXPERT
PERSPECTIVE  TO THE LEGISLATURE, PROMOTING AWARENESS OF PROBLEMS IN REAL
TIME AS THEY EMERGE, INCREASE COOPERATION AND COLLABORATION BETWEEN  THE
INDIVIDUALS AND COMMUNITIES DIRECTLY IMPACTED AND THEIR LEGISLATORS, AND
ALLOW  LEGISLATORS TO SHARE RESPONSIBILITY FOR SUCCESSES AND FAILURES OF
THESE INITIATIVES. THE COMMISSION SHALL MAKE SUCH RECOMMENDATIONS AS  IT
MAY  DEEM  NECESSARY AS TO REGULATIONS, POLICIES, PROGRAMS, AND PROPOSED
LEGISLATION TO PROVIDE AN EQUITABLE SYSTEM OF PROVIDING FOR  THE  PUBLIC
SAFETY WHILE ALSO PROTECTING PUBLIC HEALTH, TO ENCOURAGE THE MOST EFFEC-
TIVE  USE OF STATE AND LOCAL RESOURCES, TO PRESERVE THE FISCAL INTEGRITY
OF BOTH STATE AND LOCAL  GOVERNMENT  HEALTH  SYSTEMS  AND  OTHERWISE  TO
STRENGTHEN THE FUNDAMENTAL HUMAN RIGHT TO HEALTH.
  3.  THE COMMISSION SHALL CONSIST OF TEN REPRESENTATIVES FROM ORGANIZA-
TIONS THAT PROMOTE ADVOCACY BY AND FOR  DIRECTLY  IMPACTED  COMMUNITIES.
FROM  AMONG THE MEMBERS SO APPOINTED, A CHAIRPERSON AND VICE CHAIRPERSON
SHALL BE DESIGNATED BY THE JOINT  ACTION  OF  THE  CHAIRPERSONS  OF  THE
SENATE  AND  ASSEMBLY  HEALTH COMMITTEES. ANY VACANCY THAT OCCURS IN THE
COMMISSION OR IN THE CHAIRMANSHIP OR VICE CHAIRMANSHIP SHALL  BE  FILLED
IN  THE SAME MANNER IN WHICH THE ORIGINAL APPOINTMENT OR DESIGNATION WAS
MADE.
  4. THE COMMISSION IN ADDITION TO THE ABOVE MENTIONED POWERS SHALL HAVE
ALL THE POWERS AND PRIVILEGES OF A  LEGISLATIVE  COMMITTEE  PURSUANT  TO
THIS CHAPTER.
  5.  FOR  THE  ACCOMPLISHMENT  OF  ITS PURPOSE, THE COMMISSION SHALL BE
AUTHORIZED AND EMPOWERED TO UNDERTAKE ANY  STUDY,  INQUIRY,  SURVEY,  OR
ANALYSIS  IT  MAY DEEM RELEVANT THROUGH ITS OWN PERSONNEL IN COOPERATION
WITH OR BY AGREEMENT WITH ANY OTHER PUBLIC OR PRIVATE AGENCY.
  6. THE COMMISSION MAY REQUIRE AND SHALL RECEIVE FROM  ANY  DEPARTMENT,
BOARD,  BUREAU,  COMMISSION, AUTHORITY, OFFICE, OR OTHER INSTRUMENTALITY
OF THE STATE, AND FROM ANY COUNTY, CITY, TOWN OR VILLAGE OF THIS  STATE,
SUCH  FACILITIES, ASSISTANCE, AND DATA, AS IT DEEMS NECESSARY OR DESIRA-
BLE FOR PROPER EXECUTION OF ITS POWERS AND DUTIES.
  7. THE COMMISSION MAY HOLD PUBLIC OR PRIVATE HEARINGS AND  SHALL  HAVE
FULL  POWERS TO SUBPOENA WITNESSES AND ALL RECORDS OR DATA IT SHALL DEEM
NECESSARY OR DESIRABLE PURSUANT TO THIS CHAPTER.
  8. THE MEMBERS OF THE COMMISSION SHALL SERVE ON A VOLUNTARY BASIS  AND
RECEIVE NO COMPENSATION FOR THEIR SERVICES.
  S  10.  Paragraph (f) of subdivision 4 of section 837 of the executive
law, as amended by chapter 169 of the laws of 1994, is amended and a new
paragraph (g) is added to read as follows:
  (f) Accomplish all of the functions, powers, and duties set  forth  in
paragraphs (a), (b), (c) and (d) of this subdivision with respect to the
processing  and  disposition  of cases involving violent felony offenses
specified in subdivision one of section 70.02 of the penal law; AND
  (G) ACCOMPLISH ALL OF THE FUNCTIONS, POWERS, AND DUTIES SET  FORTH  IN
PARAGRAPHS (A), (B), (C) AND (D) OF THIS SUBDIVISION WITH RESPECT TO ALL

S. 5638                             6                            A. 7671

CHAPTERS  OF LAW RESULTING FROM LEGISLATIVE BILLS THAT HAVE BEEN SUBJECT
TO THE PROVISIONS OF  SECTIONS  FORTY-NINE  AND  EIGHTY-THREE-N  OF  THE
LEGISLATIVE  LAW. THE DIVISION SHALL PRESENT TO THE GOVERNOR, THE TEMPO-
RARY  PRESIDENT  OF  THE  SENATE, THE MINORITY LEADER OF THE SENATE, THE
SPEAKER OF THE ASSEMBLY AND THE MINORITY LEADER OF THE ASSEMBLY AN ANNU-
AL REPORT CONTAINING THE STATISTICS AND OTHER  INFORMATION  RELEVANT  TO
THIS SUBDIVISION.
  S  11.  If any provision of this article or the application thereof to
any person, circumstances, or political subdivision  of  this  state  is
adjudged  invalid  by  a  court  of competent jurisdiction such judgment
shall not affect or impair the validity of the other provisions  of  the
article  or  the  application thereof to other political subdivisions of
this state, persons, and circumstances.
  S 12. This act shall take effect on the first of March next succeeding
the date on which it shall have become a law.