NY State Senate Bill 2015-S635

Senate Bill S635

2015-2016 Legislative Session

Relates to disqualification of employment for criminal history and the definition of ability to consent

download bill text pdf

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, 2016	referred to codes
Jan 07, 2015	referred to codes

2015-S635 (ACTIVE) - Details

See Assembly Version of this Bill:: A1022
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §130.05, Pen L
Versions Introduced in Other Legislative Sessions:: 2011-2012: S5711
2013-2014: S5466, A8582
2017-2018: S1055, A645
2019-2020: A2053

2015-S635 (ACTIVE) - Summary

Relates to disqualification of employment for certain criminal history information and deeming an individual with a developmental disability as incapable of giving consent.

2015-S635 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S635

 TITLE OF BILL :  An act to amend 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 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 Penal Law § 130.05(3) to add a new
paragraph (j) 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 2 of the bill would provide for an immediate effective date.

 EXISTING LAW :

Section 130.05 (3)(i) provides that a resident or inpatient of a
residential facility operated, licensed or certified by OMH, OPWDD or
OASAS is incapable of consenting to sexual conduct by an employee.

 LEGISLATIVE HISTORY :

Same as S.5466 of 2014

 JUSTIFICATION :

This bill would enhance the safety of individuals who receive services
from programs operated, licensed or funded by OPWDD 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). In 2012 the
Governor signed into a law a provision that provides that residents or
in-patients of a residential facility operated, licensed or certified
by OMH, OPWDD or OASAS are incapable of consenting to a sexual contact
if the actor is an employee, intern, consultant or contractor of the
facility and not married to such resident or inpatient. however, the
Provision only applies to residential and in-patient facilities. This
bill would create a new provision providing that a person with
developmental disabilities receiving services from a program operated,
certified or authorized by OPWDD is incapable of consenting to sexual
conduct. This provision expands upon what was passed last year to

encompass all services in order to ensure the safety of our most
vulnerable population.

 BUDGET IMPLICATIONS :

This bill would have no fiscal implications.

 EFFECTIVE DATE :
This bill would take effect immediately.

2015-S635 (ACTIVE) - Bill Text download pdf

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

                                   635

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2015
                               ___________

Introduced  by Sen. CARLUCCI -- 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  disqualification  of
  employment  for  certain  criminal  history information and deeming an
  individual with a developmental  disability  is  incapable  of  giving
  consent

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

  Section 1. 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
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

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

                                                           LBD02166-01-5

S. 635                              2

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)  AN  INDIVIDUAL WITH A DEVELOPMENTAL DISABILITY RECEIVING SERVICES
FROM A PROGRAM OR FACILITY OPERATED,  CERTIFIED  OR  AUTHORIZED  BY,  OR
FUNDED  THROUGH,  CONTRACT  BY  THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES WHERE THE ACTOR IS NOT MARRIED TO SUCH INDIVIDUAL AND IS AN
EMPLOYEE, INTERN, CONSULTANT, CONTRACTOR OR VOLUNTEER OF SUCH PROGRAM OR
FACILITY WHERE THE INDIVIDUAL RECEIVES SERVICES.
  S 2. This act shall take effect immediately.

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