NY State Senate Bill 2017-S3515

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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to codes
Jan 24, 2017	referred to codes

2017-S3515 (ACTIVE) - Details

See Assembly Version of this Bill:: A4372
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§111-a & 240, Dom Rel L; amd §130.92, Pen L; add Art 6 Part 6 §§681 & 682, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2013-2014: S5001
2015-2016: S3215, A6997
2019-2020: S2948, A534
2021-2022: A539
2023-2024: A8159

2017-S3515 (ACTIVE) - Summary

Provides a process for the termination of parental rights in cases of a child conceived through rape by clear and convincing evidence.

2017-S3515 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3515

 TITLE OF BILL :  An act to amend the penal law, the domestic
relations law and the family court act, in relation to termination of
parental rights in cases of a child conceived through rape

 PURPOSE :

To expand the protections afforded to women who conceive a child as a
result of rape.

 SUMMARY OF LEGISLATION :

Section 1. Section 130.92 of the penal law is amended by adding a new
subdivision 4.

This terminates the parental rights and responsibilities of a parent
who is "convicted" of the crime of rape in the first, second, or third
degree. This provision mandates that the court terminate parental
rights if a conviction occurs.

Section 2. Subdivision 1 of section 111-a of the domestic relations
law, as amended by chapter 371 of the laws of 2013, is amended.

If, after a judicial hearing, it is found by "clear and convincing
evidence," that a woman has been raped in the first, second or third

degree, and a child was conceived as result of that rape, the woman
does not have to notify her assailant of her intention to give the
child up for adoption.

Section 3. Paragraph (b) of subdivision 1-c of section 240 of the
domestic relations law, as amended by chapter 371 of the laws of 2013,
is amended.

This includes the provision that there will be a rebuttable
presumption that it is not in the best interests of the child whether
born in or out of wedlock to be placed in the custody of or to visit
with the person who has been convicted of rape which resulted in the
conception of that child.

Section 4. Subdivision 5 of section 240 of the domestic relations law,
as added by section 103 of chapter 398 of the laws of 1997, is
renumbered subdivision 6 and a new subdivision 7 is added.

No court shall award custody or visitation rights to any parent who
has been charged with violating section 130.25 (rape in the third
degree), 130.30 (rape in the second degree), or 130.35 (rape in the
first degree) of the penal law, until the conclusion of all
proceedings associated with such charges. In addition, neither custody
nor visitation shall be awarded to any parent who is convicted of such
charges.

Section 5. Article 6 of the family court act is amended adding a new
part 6.

This establishes a hearing process by which a victim can prove by
"clear and convincing evidence" that the respondent committed the
crime of rape in the first, second, or third degree and a child was
conceived as a result of such rape. At the conclusion of the hearing,
the court may terminate all of the parental rights and
responsibilities of the respondent if it is found that he indeed
committed rape and the child was conceived as a result of such rape.

 JUSTIFICATION :


New York State, under certain circumstances, gives a rapist who
fathered a child the legal right to custody and/or visitation. It is
impossible to imagine the anguish a victim endures when she is forced
to not only interact with the assailant, but actually share parental
responsibilities. Sadly, New York is one of a limited number of states
where the rapist has this right.

In March of 2010, Shauna Prewitt, a rape survivor and law student at
Georgetown Law School, published a scholarly article examining the
legal protections afforded women who become mothers as a result of
rape. The article exposed a legal system that permitted the rapist
custody and visitation rights regarding the child born as a result of
rape.

Currently, a total of 33 states have enacted statutes that either
terminate parental rights or eliminate the requirement that the father
be notified of an adoption proceeding when a child has been conceived
as a result of rape. This measure uses the concept of "clear and
convincing evidence" as the standard for terminating a rapist's
custody claims.

Unfortunately, fewer than 5% of rape cases are ever brought to trial
and even when they are, many defendants are allowed to plead guilty to
a lesser offense. Therefore, this legislation looks to establish a
hearing process that makes "clear and convincing evidence" sufficient
grounds for the denial of parental or custodial rights.

This legislation would also protect women who choose to put a child
conceived through rape up for adoption. Current New York State Law
requires that unless there is a conviction of rape in the first
degree, a woman must notify the father (rapist) of the decision to put
the child for adoption. This legislation expands the conviction to
include rape in the second and third degree and adds "clear and
convincing evidence" at a hearing to the statute. Accordingly, this
proposed legislation seeks to protect victims of rape and begin their
journey toward recovery should they choose to put the child up for
adoption without fearing retaliation from the perpetrator.

If someone is convicted of rape, they should have no contact with the
child. There have been cases where courts have determined that
terminating parental rights is not in the best interest of the child
because the rapist has established a relationship with the child as a
result of the lengthy interval between arrest and conviction.

To allow a rapist to establish a parental presence in the life of a
child is unacceptable and can be traumatic to both the mother and
child. Perpetrators can also use the interim between arrest and
conviction to intimidate the mother into dropping the charges, often
using the custody of the child as leverage. Therefore, this
legislation proposes that no custody or visitation rights be granted
to anyone charged with rape until the conclusion of the proceedings.

Establishing a process by which a woman can petition the court to
conduct a hearing, protects the woman from a long, drawn out legal
proceeding. This hearing process also protects the accused by setting
"clear and convincing evidence" as the standard for denying parental
rights and leaving the decision to the discretion of the court.

Lastly, in 1982, the Supreme Court established, in Santosky v Kramer
(455 U.S. 745) that "clear and convincing evidence" does not impede
due process in restricting or terminating parental rights.

 LEGISLATIVE HISTORY :

2015/16: S 3215-A, A 6997-A

2013/14: S 5001 introduced 5/3/13; amended 1/21/14 - S 5001-A

 FISCAL IMPLICATIONS :

None to the State.

 EFFECTIVE DATE :
This act shall take effect immediately.

2017-S3515 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3515
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 24, 2017
                                ___________
 
 Introduced  by Sen. STAVISKY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the penal law, the domestic relations law and the family
   court act, in relation to termination of parental rights in cases of a
   child conceived through rape

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 130.92 of the penal law is amended by adding a new
 subdivision 4 to read as follows:
   4. THE PARENTAL RIGHTS AND RESPONSIBILITIES WITH RESPECT TO A CHILD OF
 A PARENT CONVICTED OF THE CRIME OF RAPE IN THE FIRST DEGREE  AS  DEFINED
 IN  SECTION 130.35 OF THIS ARTICLE, RAPE IN THE SECOND DEGREE AS DEFINED
 IN SECTION 130.30 OF THIS ARTICLE,  OR  RAPE  IN  THE  THIRD  DEGREE  AS
 DEFINED  IN  SECTION  130.25  OF  THIS  ARTICLE,  THAT  RESULTED  IN THE
 CONCEPTION OF SUCH CHILD SHALL BE TERMINATED IN ACCORDANCE WITH  ARTICLE
 SIX OF THE FAMILY COURT ACT.
   §  2. Subdivision 1 of section 111-a of the domestic relations law, as
 amended by chapter 371 of the laws  of  2013,  is  amended  to  read  as
 follows:
   1.  Notwithstanding  any  inconsistent provisions of this or any other
 law, and in addition to the notice requirements of any law pertaining to
 persons other than those specified in subdivision two of  this  section,
 notice  as  provided  herein  shall be given to the persons specified in
 subdivision two of this section of  any  adoption  proceeding  initiated
 pursuant  to  this  article  or  of any proceeding initiated pursuant to
 section one hundred fifteen-b of this article relating to the revocation
 of an adoption consent, when such proceeding involves a child born  out-
 of-wedlock  provided, however, that such notice shall not be required to
 be given to any person who previously  has  been  given  notice  of  any
 proceeding involving the child, pursuant to section three hundred eight-
 y-four-c of the social services law, and provided further that notice in
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD01754-02-7

 S. 3515                             2
 
 an  adoption  proceeding, pursuant to this section shall not be required
 to be given to any person who has  previously  received  notice  of  any
 proceeding pursuant to section one hundred fifteen-b of this article. In
 addition to such other requirements as may be applicable to the petition
 in  any  proceeding  in  which  notice  must  be  given pursuant to this
 section, the petition shall set forth the names and last known addresses
 of all persons required to be given notice of the  proceeding,  pursuant
 to  this section, and there shall be shown by the petition or by affida-
 vit or other proof satisfactory to the court that there are  no  persons
 other  than  those set forth in the petition who are entitled to notice.
 For the purpose of determining persons entitled to  notice  of  adoption
 proceedings  initiated  pursuant  to  this article, persons specified in
 subdivision two of this section shall not include  any  person  who  has
 been  convicted  of one or more of the following sexual offenses in this
 state or convicted of one  or  more  offenses  in  another  jurisdiction
 which,  if  committed in this state, would constitute one or more of the
 following offenses, WHERE IT IS ESTABLISHED AFTER A  HEARING,  BY  CLEAR
 AND  CONVINCING EVIDENCE, THAT SUCH PERSON COMMITTED ANY SUCH OFFENSE OR
 when the child who is the subject of the proceeding was conceived  as  a
 result:  (A)  rape  in first [or], second OR THIRD degree; (B) course of
 sexual conduct against a child in the first degree; (C) predatory sexual
 assault; or (D) predatory sexual assault against a child.
   § 3. Paragraph (b) of subdivision 1-c of section 240 of  the  domestic
 relations law, as amended by chapter 371 of the laws of 2013, is amended
 to read as follows:
   (b) Notwithstanding any other provision of this chapter to the contra-
 ry,  there  shall be a rebuttable presumption that it is not in the best
 interests of the child, WHETHER BORN IN OR OUT-OF-WEDLOCK, to be  placed
 in  the  custody  of or to visit with a person who has been convicted of
 one or more of the following sexual offenses in this state or  convicted
 of  one  or more offenses in another jurisdiction which, if committed in
 this state, would constitute one or more of the following offenses, when
 a child who is the subject of the proceeding was conceived as a  result:
 (A)  rape  in  the  first or second degree; (B) course of sexual conduct
 against a child in the first degree; (C) predatory  sexual  assault;  or
 (D) predatory sexual assault against a child.
   §  4.  Subdivision  5 of section 240 of the domestic relations law, as
 added by section 103 of chapter 398 of the laws of 1997,  is  renumbered
 subdivision 6 and a new subdivision 7 is added to read as follows:
   7.  NOTWITHSTANDING ANY OTHER PROVISION OF ANY LAW TO THE CONTRARY, NO
 COURT SHALL AWARD CUSTODY TO A PARENT WHO HAS BEEN CHARGED WITH  VIOLAT-
 ING  SECTION  130.25  (RAPE  IN  THE  THIRD DEGREE), 130.30 (RAPE IN THE
 SECOND DEGREE), OR 130.35 (RAPE IN THE FIRST DEGREE) OF THE  PENAL  LAW,
 WHERE  THE  CHILD  THAT  SUCH  PARENT SEEKS CUSTODY OR VISITATION OF WAS
 CONCEIVED AS A  RESULT  OF  SUCH  RAPE,  UNTIL  THE  CONCLUSION  OF  ALL
 PROCEEDINGS ASSOCIATED WITH SUCH CHARGES. NEITHER CUSTODY NOR VISITATION
 SHALL BE AWARDED TO A PARENT WHO HAS BEEN CONVICTED OF VIOLATING SECTION
 130.25  (RAPE  IN THE THIRD DEGREE), 130.30 (RAPE IN THE SECOND DEGREE),
 OR 130.35 (RAPE IN THE FIRST DEGREE) OF THE PENAL LAW.
   § 5. Article 6 of the family court act is amended by adding a new part
 6 to read as follows:
 
                                  PART 6
      TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION BY
                                   RAPE

 S. 3515                             3

 SECTION 681. TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION
                BY RAPE.
         682. HEARING.
   §  681. TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION BY
 RAPE. 1. A PROCEEDING FOR TERMINATION OF PARENTAL RIGHTS ON THE  GROUNDS
 OF  A FINDING OF CONCEPTION BY RAPE IS ORIGINATED BY A PETITION ALLEGING
 THAT THE RESPONDENT COMMITTED THE CRIME OF RAPE IN THE FIRST  DEGREE  AS
 DEFINED  IN  SECTION  130.35,  RAPE  IN  THE SECOND DEGREE AS DEFINED IN
 SECTION 130.30, OR RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.25
 OF THE PENAL LAW, AND THAT THE CHILD WAS CONCEIVED AS A RESULT  OF  SUCH
 RAPE.  EXCEPT AS OTHERWISE PROVIDED IN THIS PART, THE PROVISIONS OF PART
 ONE OF THIS ARTICLE SHALL APPLY TO ALL PROCEEDINGS.
   2. AT THE CONCLUSION OF THE HEARING UNDER SECTION SIX HUNDRED  EIGHTY-
 TWO  OF THIS PART THE COURT MAY TERMINATE ALL OF THE PARENTAL RIGHTS AND
 RESPONSIBILITIES OF THE RESPONDENT IF THE RESPONDENT IS FOUND  BY  CLEAR
 AND  CONVINCING  EVIDENCE  TO HAVE COMMITTED RAPE IN THE FIRST DEGREE AS
 DEFINED IN SECTION 130.35, RAPE IN  THE  SECOND  DEGREE  AS  DEFINED  IN
 SECTION  130.30 OR RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.25
 OF THE PENAL LAW, AND THE CHILD WAS CONCEIVED AS A RESULT OF  SUCH  ACT.
 AN  ORDER OF DISPOSITION SHALL BE MADE, PURSUANT TO THIS SECTION, SOLELY
 ON THE BASIS OF THE BEST INTERESTS OF THE CHILD, AND THERE SHALL  BE  NO
 PRESUMPTION  THAT  SUCH  INTERESTS  WILL  BE  PROMOTED BY ANY PARTICULAR
 DISPOSITION.
   § 682. HEARING. THE COURT SHALL HOLD A  HEARING  UNDER  THIS  PART  TO
 DETERMINE  WHETHER  THE  ALLEGATIONS IN THE PETITION THAT THE RESPONDENT
 COMMITTED RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35, RAPE IN
 THE SECOND DEGREE AS DEFINED IN SECTION 130.30  OR  RAPE  IN  THE  THIRD
 DEGREE AS DEFINED IN SECTION 130.25 OF THE PENAL LAW, AND THAT THE CHILD
 WAS  CONCEIVED  AS  A  RESULT  OF  SUCH  ACT  ARE SUPPORTED BY CLEAR AND
 CONVINCING PROOF. ONLY COMPETENT, MATERIAL AND RELEVANT EVIDENCE MAY  BE
 ADMITTED  IN  A  HEARING  PURSUANT  TO THIS SECTION. A CONVICTION OF THE
 RESPONDENT ON THE CHARGES ALLEGED SHALL NOT BE REQUIRED  FOR  A  FINDING
 UNDER THIS SECTION.
   § 6. This act shall take effect immediately.

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Senate Bill S3515

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

2017-S3515 (ACTIVE) - Details

2017-S3515 (ACTIVE) - Summary

2017-S3515 (ACTIVE) - Sponsor Memo

2017-S3515 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S3515

Share this bill

Sponsored By

Toby Ann Stavisky

Archive: Last Bill Status - In Senate Committee Codes Committee

2017-S3515 (ACTIVE) - Details

2017-S3515 (ACTIVE) - Summary

2017-S3515 (ACTIVE) - Sponsor Memo

2017-S3515 (ACTIVE) - Bill Text download pdf

Comments