BILL NUMBER: S5145          REVISED MEMO 01/25/2018

SPONSOR: LANZA
 
TITLE OF BILL:  An act to amend the executive law and the criminal
procedure law, in relation to the definition of designated offender

 
PURPOSE:

To exempt victims of sex trafficking from the requirement to provide a
DNA sample for inclusion in the state DNA identification index

 
SUMMARY OF PROVISIONS:

Section one amends subdivision 7 of section 995 of the Executive Law, as
amended by Chapter 19 of the Laws of 2012, to provide that the defi-
nition of designated offender shall not include (i) a person convicted
of loitering for the purpose of engaging in prostitution under subdivi-
sion two of section 240.37 of the penal law, (ii) a person convicted of
prostitution under section 230.00 of the penal law, or (iii) a person
whose participation in the offense is determined by a court was to have
been a result of having been a victim of sex trafficking under section
              

230.34 of the penal law or trafficking in persons under the Trafficking
Victims Protection Act (United States Code, title 22, chapter 78).

Section two amends subdivision two of section 420.35 of the criminal
procedure law, as amended by Chapter 426 of the Laws of 2015, to make
technical amendments as necessitated by the amendment to such section by
Chapter 368 of the Laws of 2015.

Section three provides the effective date.

 
JUSTIFICATION:

Pursuant to section 995-c (3)(a) of the Executive Law, a designated
offender convicted and sentenced for a crime is required to provide a
sample appropriate for DNA testing to determine identification charac-
teristics specific to such person and to be included in the state's DNA
identification index. Section 995(7) of the Executive Law defines a
designated offender to be any person convicted of a felony or any misde-
meanor defined in the penal law other than a person who, as a first time
offense, knowingly and unlawfully possesses marijuana in a public place
and the marijuana is burning or open to public view.

New York has been a leader in enacting laws that recognize that sexually
exploited persons should be treated as victims and not as criminals,
including most recently by passing and having signed into law the
comprehensive Trafficking Victims Protection and Justice Act (Chapter
368 of the Laws of 2015) and legislation to require courts to waive
payment by sex trafficking victims of a mandatory surcharge, crime
victim assistance fee and DNA databank fee where the victim is convicted
of a misdemeanor or a violation (Ch. 385 of the Laws of 2014 and Ch. 426
of the Laws of 2015).

As we have learned, a young woman may be forced to engage in prostitu-
tion by her sex trafficker. Although she faces conviction, she may not
be prepared, for a variety of reasons, to seek or receive services,
primarily because she is still under the control of her exploiter and
does not believe she can escape her situation.  Accordingly, she may
decide, for example, to plead guilty to a misdemeanor offense of loiter-
ing for the purpose of engaging in prostitution to be able to return to
the streets.

This legislation will exclude from the definition of a designated offen-
der a person convicted of prostitution or loitering for the purpose of
engaging in prostitution or a person whose participation in the offense
the court determines was a result of having been a sex trafficking
victim under federal or New York state trafficking law.  By stating that
these victims are not designated offenders, these victims will not be
required to provide DNA samples to be included in the state DNA iden-
tification database.

We have been steadfast in our commitment to the principle that a person
who is commercially sexually exploited is a victim, and must not be
treated as a criminal. However, by continuing to require sex trafficking
victims to provide DNA samples following conviction, we run afoul of
that commitment and we treat these victims as criminals.  These victims
have entered our criminal justice system by virtue of their enslavement
at the hands of their traffickers. The basic human rights of sex traf-
ficking victims have already been violated by their traffickers; we
should not compound the further violation of their rights by requiring a
DNA sample.

 
LEGISLATIVE HISTORY:

2017: S.5145 - Died on Third Reading Calendar / A.1030 - Passed Assembly
2016: S.7069 - Died on Third Reading Calendar / A.9306 - Died on Third
Reading Calendar

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.