NY State Senate Bill 2017-S9019A

Archive: Last Bill Status - In Senate Committee Rules 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
Jun 15, 2018	print number 9019a
Jun 15, 2018	amend (t) and recommit to rules
Jun 14, 2018	referred to rules

Bill Amendments

Original

A (Active)

co-Sponsors

2017-S9019 - Details

See Assembly Version of this Bill:: A11188
Current Committee:: Senate Rules
Law Section:: Penal Law
Laws Affected:: Add §245.15, Pen L; amd §530.11, CP L; amd §812, Fam Ct Act; add §52-b, Civ Rts L
Versions Introduced in 2019-2020 Legislative Session:: A2056

2017-S9019 - Summary

Establishes the crime of unlawful dissemination or publication of an intimate image and creates a private right of action for such crime.

2017-S9019 - Sponsor Memo

                                
 
BILL NUMBER: S9019

SPONSOR: BOYLE
 
TITLE OF BILL:

An act to amend the penal law and the civil rights law, in relation to
establishing the crime of unlawful dissemination or publication of an
intimate image

 
PURPOSE OR GENERAL IDEA OF BILL:

Establishes the crime of unlawful dissemination or publication of an
intimate image

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 adds a new section, 245.15 to the Penal Law, which provides
that a person is guilty of unlawful dissemination or publication of an
intimate image when with intent to cause material harm to the emotional,
financial or physical welfare of another person, he or she intentionally
disseminates or publishes a still or video image of such other person,

who is identifiable from the still or video image itself or from infor-
mation displayed in connection with the still or video image, without
such person's consent.

Additionally, the dissemination must depict an unclothed or exposed
intimate part of such other person; or such other person engaging in
sexual conduct with another person and which reveals an unclothed or
exposed intimate part; and such still or video image was taken under
circumstances when the person depicted had a reasonable expectation of
privacy and the actor knew or reasonably should have known the person
depicted intended for the still or video image to remain private indefi-
nitely, regardless of whether the actor was present when the still or
video image was taken.

Section 2 provides definitions of "intimate part."

Section 3 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure in a commercial setting,
dissemination or publication for a legitimate public purpose, and
providers of an interactive computer service for images provided by
another person.

Section 4 - Unlawful dissemination or publication of an intimate image
is a class A misdemeanor.

Section 52-B is also added to the Civil Rights Law to allow for a
private right of action for the unlawful dissemination or publication of
an intimate image.

Section 1 provides that any website or internet service provider that
hosts or transmits a still or video image, viewable in this state, taken
under circumstances where the person depicted had a reasonable expecta-
tion of privacy, which depicts an unclothed or exposed intimate part of
a resident of this state, or a resident of this state engaging in sexual
conduct with another person and which reveals an unclothed or exposed
intimate part, and such still or video image is hosted or transmitted
without the consent of such resident of this state, shall be subject to
personal jurisdiction in a civil action in this state to the maximum
extent permitted.

Section 2 - Regardless of whether or not the original still or video
image was consensually obtained, a person depicted shall have a cause of
action against an individual who, for the purpose of harassing, annoying
or alarming such person, disseminated or published, or threatened to
disseminate or publish, such still or video image, where such image was
taken when such person had a reasonable expectation of privacy, and it
depicts an unclothed or exposed intimate part of such person, or such
person engaging in sexual conduct with another person which reveals an
unclothed or exposed intimate part, and it was disseminated or published
without the consent of such person.

Section 3 - In any action commenced, the finder of fact may award
injunctive relief, exemplary damages, compensatory damages and reason-
able court costs and attorney's fees.

Section 4 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure in a commercial setting, and
dissemination or publication for a legitimate public purpose.

Section 5 provides for an action or special proceeding for a court order
to require any website or internet service provider to permanently
remove such still or video image.

Section 6 - A cause of action or special proceeding shall be commenced
the later of either three years after the dissemination or publication
of an image, or one year from the date a person discovers the dissem-
ination or publication of such image.

Section 7 - Nothing herein shall be read to require a prior criminal
complaint, prosecution or conviction to establish the elements of the
cause of action provided for by this section.

 
JUSTIFICATION:

In an era of increased text messaging, social networking, and emailing,
people in intimate relationships sometimes share pictures with each
other, some of which may be sexually explicit in nature. However, recip-
ients of these images do not always keep the images within the confines
of an intimate relationship, and have the ability to widely disseminate
the photos on the Internet.

The unlawful dissemination and publication of such intimate images, also
known as "revenge porn" is often provided to Internet websites, and
features photos sometimes accompanied by disparaging descriptions and
identifying details, such as where the victims live and work, as well as
links to their social network pages.

Posting these photographs online is damaging to the reputations of the
victims. These photographs have extensive negative effects, including
destroying future intimate relationships and educational and employment
opportunities. Victims are routinely threatened with sexual assault,
stalked, harassed, or fired from jobs.
Criminalization is preferable to civil suits by victims because civil
suits do not deter those who upload or disclose new images after a civil
suit has ended. Furthermore, a lengthy trial is emotionally exhausting
and prohibitively expensive. Moreover, the websites that distribute
nonconsensual pornography are given broad immunity for civil liability
under federal law through the Communications Decency Act. Therefore,
criminalizing dissemination and publication of these photos may prevent
websites from benefiting from the harmful images.

However, because New York relies on common law to pursue a civil case,
including the torts of harassment and intentional infliction of
emotional distress, a civil suit is often difficult to pursue and win.
As such, this legislation adds a private right of action for unlawful
dissemination and publication images that would provide recourse to
victims. The private right of action is designed to work in conjunction
with the criminal law, and does not require that a criminal conviction
or charge be obtained in order to proceed. The victim will have a choice
whether to pursue a criminal or civil case, or both.

 
PRIOR LEGISLATIVE HISTORY:

This is a new bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become a law.

2017-S9019 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9019
 
                             I N  S E N A T E
 
                               June 14, 2018
                                ___________
 
 Introduced by Sens. BOYLE, GRIFFO -- read twice and ordered printed, and
   when printed to be committed to the Committee on Rules
 
 AN  ACT  to amend the penal law and the civil rights law, in relation to
   establishing the crime of unlawful dissemination or publication of  an
   intimate image
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The penal law is amended by adding a new section 245.15  to
 read as follows:
 § 245.15 UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE.
   1.  A  PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OR PUBLICATION OF AN
 INTIMATE IMAGE WHEN:
   (A) WITH INTENT TO CAUSE MATERIAL HARM TO THE EMOTIONAL, FINANCIAL  OR
 PHYSICAL WELFARE OF ANOTHER PERSON, HE OR SHE INTENTIONALLY DISSEMINATES
 OR  PUBLISHES  A STILL OR VIDEO IMAGE OF SUCH OTHER PERSON, WHO IS IDEN-
 TIFIABLE FROM THE STILL  OR  VIDEO  IMAGE  ITSELF  OR  FROM  INFORMATION
 DISPLAYED  IN  CONNECTION  WITH  THE  STILL OR VIDEO IMAGE, WITHOUT SUCH
 OTHER PERSON'S CONSENT, WHICH DEPICTS:
   (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH OTHER PERSON; OR
   (II) SUCH OTHER PERSON ENGAGING IN SEXUAL CONDUCT AS DEFINED IN SUBDI-
 VISION TEN OF SECTION 130.00 OF THIS CHAPTER  WITH  ANOTHER  PERSON  AND
 WHICH REVEALS AN UNCLOTHED OR EXPOSED INTIMATE PART; AND
   (B)  SUCH  STILL OR VIDEO IMAGE WAS TAKEN UNDER CIRCUMSTANCES WHEN THE
 PERSON DEPICTED HAD A REASONABLE EXPECTATION OF PRIVACY  AND  THE  ACTOR
 KNEW  OR  REASONABLY  SHOULD HAVE KNOWN THE PERSON DEPICTED INTENDED FOR
 THE STILL OR VIDEO IMAGE TO REMAIN PRIVATE INDEFINITELY,  REGARDLESS  OF
 WHETHER THE ACTOR WAS PRESENT WHEN THE STILL OR VIDEO IMAGE WAS TAKEN.
   2.  FOR PURPOSES OF THIS SECTION "INTIMATE PART" MEANS THE NAKED GENI-
 TALS, PUBIC AREA, ANUS OR FEMALE NIPPLE OF THE PERSON.
   3. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
   (A) THE REPORTING OF UNLAWFUL CONDUCT;
   (B) DISSEMINATION OR PUBLICATION OF  AN  INTIMATE  IMAGE  MADE  DURING
 LAWFUL  AND  COMMON  PRACTICES  OF LAW ENFORCEMENT, LEGAL PROCEEDINGS OR
 MEDICAL TREATMENT;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD16264-03-8

 S. 9019                             2
 
   (C) IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING;
   (D)  DISSEMINATION  OR  PUBLICATION  OF  AN  INTIMATE IMAGE MADE FOR A
 LEGITIMATE PUBLIC PURPOSE;
   (E) PROVIDERS OF AN INTERACTIVE COMPUTER SERVICE FOR  IMAGES  PROVIDED
 BY  ANOTHER  PERSON.    FOR  PURPOSES  OF THIS SUBDIVISION, "INTERACTIVE
 COMPUTER SERVICE" SHALL MEAN: ANY INFORMATION SERVICE, SYSTEM OR  ACCESS
 SOFTWARE  PROVIDER  THAT PROVIDES OR ENABLES COMPUTER ACCESS BY MULTIPLE
 USERS TO A COMPUTER SERVER, INCLUDING SPECIFICALLY A SERVICE  OR  SYSTEM
 THAT  PROVIDES  ACCESS  TO  THE  INTERNET  AND  SUCH SYSTEMS OPERATED OR
 SERVICES OFFERED BY LIBRARIES OR EDUCATIONAL INSTITUTIONS.
   UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE IS A  CLASS
 A MISDEMEANOR.
   §  2.  The civil rights law is amended by adding a new section 52-b to
 read as follows:
   § 52-B. PRIVATE RIGHT OF ACTION FOR UNLAWFUL DISSEMINATION OR PUBLICA-
 TION OF AN INTIMATE IMAGE. 1. A. ANY WEBSITE OR INTERNET SERVICE PROVID-
 ER THAT HOSTS OR TRANSMITS A STILL OR  VIDEO  IMAGE,  VIEWABLE  IN  THIS
 STATE, TAKEN UNDER CIRCUMSTANCES WHERE THE PERSON DEPICTED HAD A REASON-
 ABLE EXPECTATION OF PRIVACY, WHICH DEPICTS:
   (I)  AN  UNCLOTHED  OR  EXPOSED  INTIMATE  PART, AS DEFINED IN SECTION
 245.15 OF THE PENAL LAW, OF A RESIDENT OF THIS STATE; OR
   (II) A RESIDENT OF THIS STATE ENGAGING IN SEXUAL CONDUCT AS DEFINED IN
 SUBDIVISION TEN OF SECTION 130.00 OF THE PENAL LAW WITH  ANOTHER  PERSON
 AND WHICH REVEALS AN UNCLOTHED OR EXPOSED INTIMATE PART; AND
   B.  SUCH  STILL  OR  VIDEO  IMAGE IS HOSTED OR TRANSMITTED WITHOUT THE
 CONSENT OF SUCH RESIDENT OF THIS STATE, SHALL  BE  SUBJECT  TO  PERSONAL
 JURISDICTION  IN  A  CIVIL  ACTION  IN  THIS STATE TO THE MAXIMUM EXTENT
 PERMITTED UNDER THE UNITED STATES CONSTITUTION AND FEDERAL LAW.
   2. REGARDLESS OF WHETHER OR NOT THE ORIGINAL STILL OR VIDEO IMAGE  WAS
 CONSENSUALLY OBTAINED, A PERSON DEPICTED IN A STILL OR VIDEO IMAGE SHALL
 HAVE  A  CAUSE  OF  ACTION AGAINST AN INDIVIDUAL WHO, FOR THE PURPOSE OF
 HARASSING, ANNOYING OR ALARMING SUCH PERSON, DISSEMINATED OR  PUBLISHED,
 OR  THREATENED  TO  DISSEMINATE  OR  PUBLISH, SUCH STILL OR VIDEO IMAGE,
 WHERE SUCH IMAGE:
   A. WAS TAKEN WHEN SUCH PERSON HAD A REASONABLE EXPECTATION OF PRIVACY;
 AND
   B. DEPICTS (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF  SUCH  PERSON;
 OR  (II)  SUCH PERSON ENGAGING IN SEXUAL CONDUCT, AS DEFINED IN SUBDIVI-
 SION TEN OF SECTION 130.00 OF THE PENAL LAW, WITH ANOTHER  PERSON  WHICH
 REVEALS AN UNCLOTHED OR EXPOSED INTIMATE PART; AND
   C.  WAS DISSEMINATED OR PUBLISHED, OR THREATENED TO BE DISSEMINATED OR
 PUBLISHED, WITHOUT THE CONSENT OF SUCH PERSON.
   3. IN ANY  ACTION  COMMENCED  PURSUANT  TO  SUBDIVISION  TWO  OF  THIS
 SECTION,  THE  FINDER  OF  FACT, IN ITS DISCRETION, MAY AWARD INJUNCTIVE
 RELIEF, EXEMPLARY DAMAGES, COMPENSATORY  DAMAGES  AND  REASONABLE  COURT
 COSTS AND ATTORNEY'S FEES.
   4. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
   A. THE REPORTING OF UNLAWFUL CONDUCT;
   B.  DISSEMINATION  OR  PUBLICATION OF AN INTIMATE STILL OR VIDEO IMAGE
 MADE DURING LAWFUL  AND  COMMON  PRACTICES  OF  LAW  ENFORCEMENT,  LEGAL
 PROCEEDINGS OR MEDICAL TREATMENT;
   C. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING; OR
   D.  DISSEMINATION  OR  PUBLICATION OF AN INTIMATE STILL OR VIDEO IMAGE
 MADE FOR A LEGITIMATE PUBLIC PURPOSE.
   5. ANY PERSON DEPICTED IN A STILL  OR  VIDEO  IMAGE  THAT  DEPICTS  AN
 UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH PERSON, OR SUCH PERSON ENGAG-

 S. 9019                             3
 
 ING IN SEXUAL CONDUCT AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF
 THE  PENAL LAW WITH ANOTHER PERSON WHICH REVEALS AN UNCLOTHED OR EXPOSED
 INTIMATE PART, WHICH IS DISSEMINATED OR PUBLISHED WITHOUT THE CONSENT OF
 SUCH PERSON AND WHERE SUCH PERSON HAD A REASONABLE EXPECTATION OF PRIVA-
 CY,  MAY  MAINTAIN  AN ACTION OR SPECIAL PROCEEDING FOR A COURT ORDER TO
 REQUIRE ANY WEBSITE OR INTERNET SERVICE  PROVIDER  THAT  IS  SUBJECT  TO
 PERSONAL  JURISDICTION  UNDER  SUBDIVISION ONE OF THIS SECTION TO PERMA-
 NENTLY REMOVE SUCH STILL OR VIDEO IMAGE.
   6. A CAUSE OF ACTION OR SPECIAL PROCEEDING UNDER THIS SECTION SHALL BE
 COMMENCED THE LATER OF EITHER:
   A. THREE YEARS AFTER THE DISSEMINATION OR PUBLICATION OF AN IMAGE; OR
   B. ONE YEAR FROM THE DATE A PERSON  DISCOVERS,  OR  REASONABLY  SHOULD
 HAVE DISCOVERED, THE DISSEMINATION OR PUBLICATION OF SUCH IMAGE.
   7. NOTHING HEREIN SHALL BE READ TO REQUIRE A PRIOR CRIMINAL COMPLAINT,
 PROSECUTION  OR  CONVICTION  TO  ESTABLISH  THE ELEMENTS OF THE CAUSE OF
 ACTION PROVIDED FOR BY THIS SECTION.
   8. IF ANY PROVISION OF THIS SECTION OR ITS APPLICATION TO  ANY  PERSON
 OR  CIRCUMSTANCE  IS HELD INVALID, THE INVALIDITY SHALL NOT AFFECT OTHER
 PROVISIONS OR APPLICATIONS OF THIS SECTION WHICH  CAN  BE  GIVEN  EFFECT
 WITHOUT  THE  INVALID  PROVISION  OR  APPLICATION,  AND  TO THIS END THE
 PROVISIONS OF THIS SECTION ARE SEVERABLE.
   § 3. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.

co-Sponsors

View additional co-sponsors

2017-S9019A (ACTIVE) - Details

See Assembly Version of this Bill:: A11188
Current Committee:: Senate Rules
Law Section:: Penal Law
Laws Affected:: Add §245.15, Pen L; amd §530.11, CP L; amd §812, Fam Ct Act; add §52-b, Civ Rts L
Versions Introduced in 2019-2020 Legislative Session:: A2056

2017-S9019A (ACTIVE) - Summary

Establishes the crime of unlawful dissemination or publication of an intimate image and creates a private right of action for such crime.

2017-S9019A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S9019A

SPONSOR: BOYLE
 
TITLE OF BILL:  An act to amend the penal law, the criminal procedure
law, the family court act and the civil rights law, in relation to
establishing the crime of unlawful dissemination or publication of an
intimate image

 
PURPOSE OR GENERAL IDEA OF BILL:

Establishes the crime of unlawful dissemination or publication of an
intimate image

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 adds a new section, 245.15 to the Penal Law, which provides
that a person is guilty of unlawful dissemination or publication of an
intimate image when with intent to cause material harm to the emotional,
financial or physical welfare of another person, he or she intentionally
disseminates or publishes a still or video image of such other person,
who is identifiable from the still or video image itself or from infor-

mation displayed in connection with the still or video image, without
such person's consent.

Additionally, the dissemination must depict an unclothed or exposed
intimate part of such other person; or such other person engaging in
sexual conduct with another person; and such still or video image was
taken under circumstances when the person depicted had a reasonable
expectation of privacy and the actor knew or reasonably should have
known the person depicted intended for the still or video image to
remain private indefinitely, regardless of whether the actor was present
when the still or video image was taken.

Subsection 2 provides definitions of "intimate part", "disseminate" and
"publish."

Subsection 3 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure-in a commercial setting,
dissemination or publication for a legitimate public purpose, and
providers of an interactive computer service for images provided by
another person.

Section 2 & 3 - amends section 530.11 of the criminal procedure law to
provide family court and criminal court concurrent jurisdiction over
unlawful dissemination or publication of an intimate image.

Section 4 - Unlawful dissemination or publication of an intimate image
is a class A misdemeanor.

Section 52-B is also added to the Civil Rights Law to allow for a
private right of action for the unlawful dissemination or publication of
an intimate image.

Section 1 provides that any website or internet service provider that
hosts or transmits a still or video image, viewable in this state, taken
under circumstances where the person depicted had a reasonable expecta-
tion of privacy, which depicts an unclothed or exposed intimate part of
a resident of this state, or a resident of this state engaging in sexual
conduct with another person and which reveals an unclothed or exposed
intimate part, and such still or video image is hosted or transmitted
without the consent of such resident of this state, shall be subject to
personal jurisdiction in a civil action in this state to the maximum
extent permitted.

Section 2 - Regardless of whether or not the original still or video
image was consensually obtained, a person depicted shall have a cause of
action against an individual who, for the purpose of .harassing, annoy-
ing or alarming such person, disseminated or published, or threatened to
disseminate or publish, such still or video image, where such image was
taken when such person had a reasonable expectation of privacy, and it
depicts an unclothed or exposed intimate part of such person, or such
person engaging in sexual conduct with another person which reveals an
unclothed or exposed intimate part, and it was disseminated or published
without the consent of such person.

Section 3 - In any action commenced, the finder of fact may award
injunctive relief, punitive damages, compensatory damages and reasonable
court costs and attorney's fees.

Section 4 provides exceptions for the reporting of unlawful conduct,
dissemination or publication of an intimate image made during lawful and
common practices of law enforcement, legal proceedings or medical treat-
ment, images involving voluntary exposure in a commercial setting, and
dissemination or publication for a legitimate public purpose.

Section 5 provides for an action or special proceeding for a court order
to require any website or internet service provider to permanently
remove such still or video image.

Section 6 - A cause of action or special proceeding shall be commenced
the later of either three years after the dissemination or publication
of an image, or one year from the date a person discovers the dissem-
ination or publication of such image.

Section 7 - Nothing herein shall be read to require a prior criminal
complaint, prosecution or conviction to establish the elements of the
cause of action provided for by this section.'

 
JUSTIFICATION:

In an era of increased text messaging, social networking, and emailing,
people in intimate relationships sometimes share pictures with each
other, some of which may be sexually explicit in nature. However, recip-
ients of these images do not always keep the images within the confines
of an intimate relationship, and have the ability to widely disseminate
the photos on the Internet.

The unlawful dissemination and publication of such intimate images, also
known as "revenge porn" is often provided to Internet websites, and
features photos sometimes accompanied by disparaging descriptions and
identifying details, such as where the victims live and work, as well as
links to their social network pages.

Posting these photographs online is damaging to the reputations of the
victims. These photographs have extensive negative effects, including
destroying future intimate relationships and educational and employment
opportunities. Victims are routinely threatened with sexual assault,
stalked, harassed, or fired from jobs.  Criminalization is preferable to
civil suits by victims because civil suits do not deter those who upload
or disclose new images after a civil suit has ended. Furthermore, a
lengthy trial is emotionally exhausting and prohibitively expensive.
Moreover, the websites that distribute nonconsensual pornography are
given broad immunity for civil liability under federal law through the
Communications Decency Act. Therefore, criminalizing dissemination and
publication of these photos may prevent websites from benefiting from
the harmful images.

However, because New York relies on common law to pursue a civil case,
including the torts of harassment and intentional infliction of
emotional distress, a civil suit is often difficult to pursue and win.
As such, this legislation adds a private right of action for unlawful
dissemination and publication images that would provide recourse to
victims. The private right of action is designed to work in conjunction
with the criminal law, and does not require that a criminal conviction
or charge be obtained in order to proceed. The victim will have a choice
whether to pursue a criminal or civil case, or both.

 
PRIOR LEGISLATIVE HISTORY:

This is a new bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become a law.

2017-S9019A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  9019--A
 
                             I N  S E N A T E
 
                               June 14, 2018
                                ___________
 
 Introduced by Sens. BOYLE, GRIFFO -- read twice and ordered printed, and
   when  printed  to  be committed to the Committee on Rules -- committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN ACT to amend the penal law, the criminal procedure  law,  the  family
   court  act  and  the civil rights law, in relation to establishing the
   crime of unlawful dissemination or publication of an intimate image
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. The penal law is amended by adding a new section 245.15 to
 read as follows:
 § 245.15 UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE.
   1. A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OR PUBLICATION  OF  AN
 INTIMATE IMAGE WHEN:
   (A)  WITH INTENT TO CAUSE MATERIAL HARM TO THE EMOTIONAL, FINANCIAL OR
 PHYSICAL WELFARE OF ANOTHER PERSON, HE OR SHE INTENTIONALLY DISSEMINATES
 OR PUBLISHES A STILL OR VIDEO IMAGE OF SUCH OTHER PERSON, WHO  IS  IDEN-
 TIFIABLE  FROM  THE  STILL  OR  VIDEO  IMAGE  ITSELF OR FROM INFORMATION
 DISPLAYED IN CONNECTION WITH THE STILL  OR  VIDEO  IMAGE,  WITHOUT  SUCH
 OTHER PERSON'S CONSENT, WHICH DEPICTS:
   (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH OTHER PERSON; OR
   (II) SUCH OTHER PERSON ENGAGING IN SEXUAL CONDUCT AS DEFINED IN SUBDI-
 VISION TEN OF SECTION 130.00 OF THIS CHAPTER WITH ANOTHER PERSON; AND
   (B)  SUCH  STILL OR VIDEO IMAGE WAS TAKEN UNDER CIRCUMSTANCES WHEN THE
 PERSON DEPICTED HAD A REASONABLE EXPECTATION OF PRIVACY  AND  THE  ACTOR
 KNEW  OR  REASONABLY  SHOULD HAVE KNOWN THE PERSON DEPICTED INTENDED FOR
 THE STILL OR VIDEO IMAGE TO REMAIN PRIVATE INDEFINITELY,  REGARDLESS  OF
 WHETHER THE ACTOR WAS PRESENT WHEN THE STILL OR VIDEO IMAGE WAS TAKEN.
   2.  FOR PURPOSES OF THIS SECTION "INTIMATE PART" MEANS THE NAKED GENI-
 TALS, PUBIC AREA, ANUS OR FEMALE NIPPLE OF THE PERSON.
   2-A. FOR PURPOSES OF THIS SECTION "DISSEMINATE"  AND  "PUBLISH"  SHALL
 HAVE THE SAME MEANING AS DEFINED IN SECTION 250.40 OF THIS TITLE.
   3. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
   (A) THE REPORTING OF UNLAWFUL CONDUCT;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD16264-09-8

 S. 9019--A                          2
 
   (B)  DISSEMINATION  OR  PUBLICATION  OF  AN INTIMATE IMAGE MADE DURING
 LAWFUL AND COMMON PRACTICES OF LAW  ENFORCEMENT,  LEGAL  PROCEEDINGS  OR
 MEDICAL TREATMENT;
   (C) IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING;
   (D)  DISSEMINATION  OR  PUBLICATION  OF  AN  INTIMATE IMAGE MADE FOR A
 LEGITIMATE PUBLIC PURPOSE;
   (E) PROVIDERS OF AN INTERACTIVE COMPUTER SERVICE FOR  IMAGES  PROVIDED
 BY  ANOTHER  PERSON.    FOR  PURPOSES  OF THIS SUBDIVISION, "INTERACTIVE
 COMPUTER SERVICE" SHALL MEAN: ANY INFORMATION SERVICE, SYSTEM OR  ACCESS
 SOFTWARE  PROVIDER  THAT PROVIDES OR ENABLES COMPUTER ACCESS BY MULTIPLE
 USERS TO A COMPUTER SERVER, INCLUDING SPECIFICALLY A SERVICE  OR  SYSTEM
 THAT  PROVIDES  ACCESS  TO  THE  INTERNET  AND  SUCH SYSTEMS OPERATED OR
 SERVICES OFFERED BY LIBRARIES OR EDUCATIONAL INSTITUTIONS.
   UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE IS A  CLASS
 A MISDEMEANOR.
   §  2.  The opening paragraph of subdivision 1 of section 530.11 of the
 criminal procedure law, as amended by section 4 of part NN of chapter 55
 of the laws of 2018, is amended to read as follows:
   The family court and the criminal courts shall have concurrent  juris-
 diction  over  any  proceeding  concerning  acts  which would constitute
 disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
 IMAGE, harassment in the first degree, harassment in the second  degree,
 aggravated  harassment in the second degree, sexual misconduct, forcible
 touching, sexual abuse in the third degree, sexual abuse in  the  second
 degree  as  set  forth in subdivision one of section 130.60 of the penal
 law, stalking in the first degree, stalking in the second degree, stalk-
 ing in the  third  degree,  stalking  in  the  fourth  degree,  criminal
 mischief,  menacing  in the second degree, menacing in the third degree,
 reckless endangerment, strangulation in the first degree,  strangulation
 in  the second degree, criminal obstruction of breathing or blood circu-
 lation, assault in the second degree, assault in the  third  degree,  an
 attempted assault, identity theft in the first degree, identity theft in
 the  second degree, identity theft in the third degree, grand larceny in
 the fourth degree, grand larceny in the third degree,  coercion  in  the
 second  degree  or coercion in the third degree as set forth in subdivi-
 sions one, two and three of section 135.60  of  the  penal  law  between
 spouses  or  former  spouses,  or  between  parent  and child or between
 members of the same family or household except that  if  the  respondent
 would not be criminally responsible by reason of age pursuant to section
 30.00  of  the  penal  law,  then  the family court shall have exclusive
 jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
 election  to  proceed  in  family court, the criminal court shall not be
 divested of jurisdiction to hear a family offense proceeding pursuant to
 this  section.  For  purposes  of  this  section,  "disorderly  conduct"
 includes disorderly conduct not in a public place.  For purposes of this
 section,  "members  of  the  same family or household" with respect to a
 proceeding in the criminal courts shall mean the following:
   § 3. The opening paragraph of subdivision 1  of  section  812  of  the
 family  court  act,  as amended by section 5 of part NN of chapter 55 of
 the laws of 2018, is amended to read as follows:
   The family court and the criminal courts shall have concurrent  juris-
 diction  over  any  proceeding  concerning  acts  which would constitute
 disorderly conduct, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
 IMAGE, harassment in the first degree, harassment in the second  degree,
 aggravated  harassment in the second degree, sexual misconduct, forcible
 touching, sexual abuse in the third degree, sexual abuse in  the  second

 S. 9019--A                          3
 
 degree  as  set  forth in subdivision one of section 130.60 of the penal
 law, stalking in the first degree, stalking in the second degree, stalk-
 ing in the  third  degree,  stalking  in  the  fourth  degree,  criminal
 mischief,  menacing  in the second degree, menacing in the third degree,
 reckless endangerment, criminal obstruction of breathing or blood circu-
 lation, strangulation in the second degree, strangulation in  the  first
 degree,  assault  in  the second degree, assault in the third degree, an
 attempted assault, identity theft in the first degree, identity theft in
 the second degree, identity theft in the third degree, grand larceny  in
 the  fourth  degree,  grand larceny in the third degree, coercion in the
 second degree or coercion in the third degree as set forth  in  subdivi-
 sions  one,  two  and  three  of section 135.60 of the penal law between
 spouses or former spouses,  or  between  parent  and  child  or  between
 members  of  the  same family or household except that if the respondent
 would not be criminally responsible by reason of age pursuant to section
 30.00 of the penal law, then  the  family  court  shall  have  exclusive
 jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
 election to proceed in family court, the criminal  court  shall  not  be
 divested of jurisdiction to hear a family offense proceeding pursuant to
 this  section. In any proceeding pursuant to this article, a court shall
 not deny an order of protection, or dismiss a petition,  solely  on  the
 basis that the acts or events alleged are not relatively contemporaneous
 with the date of the petition, the conclusion of the fact-finding or the
 conclusion  of  the dispositional hearing. For purposes of this article,
 "disorderly conduct" includes disorderly conduct not in a public  place.
 For  purposes of this article, "members of the same family or household"
 shall mean the following:
   § 4. The civil rights law is amended by adding a new section  52-b  to
 read as follows:
   § 52-B. PRIVATE RIGHT OF ACTION FOR UNLAWFUL DISSEMINATION OR PUBLICA-
 TION OF AN INTIMATE IMAGE. 1. A. ANY WEBSITE OR INTERNET SERVICE PROVID-
 ER  THAT  HOSTS  OR  TRANSMITS  A STILL OR VIDEO IMAGE, VIEWABLE IN THIS
 STATE, TAKEN UNDER CIRCUMSTANCES WHERE THE PERSON DEPICTED HAD A REASON-
 ABLE EXPECTATION OF PRIVACY, WHICH DEPICTS:
   (I) AN UNCLOTHED OR EXPOSED  INTIMATE  PART,  AS  DEFINED  IN  SECTION
 245.15 OF THE PENAL LAW, OF A RESIDENT OF THIS STATE; OR
   (II) A RESIDENT OF THIS STATE ENGAGING IN SEXUAL CONDUCT AS DEFINED IN
 SUBDIVISION  TEN OF SECTION 130.00 OF THE PENAL LAW WITH ANOTHER PERSON;
 AND
   B. SUCH STILL OR VIDEO IMAGE IS  HOSTED  OR  TRANSMITTED  WITHOUT  THE
 CONSENT  OF  SUCH  RESIDENT  OF THIS STATE, SHALL BE SUBJECT TO PERSONAL
 JURISDICTION IN A CIVIL ACTION IN  THIS  STATE  TO  THE  MAXIMUM  EXTENT
 PERMITTED UNDER THE UNITED STATES CONSTITUTION AND FEDERAL LAW.
   2.  REGARDLESS OF WHETHER OR NOT THE ORIGINAL STILL OR VIDEO IMAGE WAS
 CONSENSUALLY OBTAINED, A PERSON DEPICTED IN A STILL OR VIDEO IMAGE SHALL
 HAVE A CAUSE OF ACTION AGAINST AN INDIVIDUAL WHO,  FOR  THE  PURPOSE  OF
 HARASSING,  ANNOYING OR ALARMING SUCH PERSON, DISSEMINATED OR PUBLISHED,
 OR THREATENED TO DISSEMINATE OR PUBLISH,  SUCH  STILL  OR  VIDEO  IMAGE,
 WHERE SUCH IMAGE:
   A. WAS TAKEN WHEN SUCH PERSON HAD A REASONABLE EXPECTATION OF PRIVACY;
 AND
   B.  DEPICTS  (I) AN UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH PERSON;
 OR (II) SUCH PERSON ENGAGING IN SEXUAL CONDUCT, AS DEFINED  IN  SUBDIVI-
 SION TEN OF SECTION 130.00 OF THE PENAL LAW, WITH ANOTHER PERSON; AND
   C.  WAS DISSEMINATED OR PUBLISHED, OR THREATENED TO BE DISSEMINATED OR
 PUBLISHED, WITHOUT THE CONSENT OF SUCH PERSON.

 S. 9019--A                          4
 
   3. IN ANY  ACTION  COMMENCED  PURSUANT  TO  SUBDIVISION  TWO  OF  THIS
 SECTION,  THE  FINDER  OF  FACT, IN ITS DISCRETION, MAY AWARD INJUNCTIVE
 RELIEF, PUNITIVE DAMAGES,  COMPENSATORY  DAMAGES  AND  REASONABLE  COURT
 COSTS AND ATTORNEY'S FEES.
   4. THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:
   A. THE REPORTING OF UNLAWFUL CONDUCT;
   B.  DISSEMINATION  OR  PUBLICATION OF AN INTIMATE STILL OR VIDEO IMAGE
 MADE DURING LAWFUL  AND  COMMON  PRACTICES  OF  LAW  ENFORCEMENT,  LEGAL
 PROCEEDINGS OR MEDICAL TREATMENT;
   C. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A COMMERCIAL SETTING; OR
   D.  DISSEMINATION  OR  PUBLICATION OF AN INTIMATE STILL OR VIDEO IMAGE
 MADE FOR A LEGITIMATE PUBLIC PURPOSE.
   5. ANY PERSON DEPICTED IN A STILL  OR  VIDEO  IMAGE  THAT  DEPICTS  AN
 UNCLOTHED OR EXPOSED INTIMATE PART OF SUCH PERSON, OR SUCH PERSON ENGAG-
 ING IN SEXUAL CONDUCT AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF
 THE  PENAL  LAW  WITH ANOTHER PERSON, WHICH IS DISSEMINATED OR PUBLISHED
 WITHOUT THE CONSENT OF SUCH PERSON AND WHERE SUCH PERSON HAD  A  REASON-
 ABLE  EXPECTATION OF PRIVACY, MAY MAINTAIN AN ACTION OR SPECIAL PROCEED-
 ING FOR A COURT ORDER TO REQUIRE ANY WEBSITE OR INTERNET SERVICE PROVID-
 ER THAT IS SUBJECT TO PERSONAL JURISDICTION  UNDER  SUBDIVISION  ONE  OF
 THIS SECTION TO PERMANENTLY REMOVE SUCH STILL OR VIDEO IMAGE.
   6. A CAUSE OF ACTION OR SPECIAL PROCEEDING UNDER THIS SECTION SHALL BE
 COMMENCED THE LATER OF EITHER:
   A. THREE YEARS AFTER THE DISSEMINATION OR PUBLICATION OF AN IMAGE; OR
   B.  ONE  YEAR  FROM  THE DATE A PERSON DISCOVERS, OR REASONABLY SHOULD
 HAVE DISCOVERED, THE DISSEMINATION OR PUBLICATION OF SUCH IMAGE.
   7. NOTHING HEREIN SHALL BE READ TO REQUIRE A PRIOR CRIMINAL COMPLAINT,
 PROSECUTION OR CONVICTION TO ESTABLISH THE  ELEMENTS  OF  THE  CAUSE  OF
 ACTION PROVIDED FOR BY THIS SECTION.
   8.  THE  PROVISIONS  OF THIS SECTION ARE IN ADDITION TO, BUT SHALL NOT
 SUPERSEDE, ANY OTHER RIGHTS OR REMEDIES AVAILABLE IN LAW OR EQUITY.
   9. IF ANY PROVISION OF THIS SECTION OR ITS APPLICATION TO  ANY  PERSON
 OR  CIRCUMSTANCE  IS HELD INVALID, THE INVALIDITY SHALL NOT AFFECT OTHER
 PROVISIONS OR APPLICATIONS OF THIS SECTION WHICH  CAN  BE  GIVEN  EFFECT
 WITHOUT  THE  INVALID  PROVISION  OR  APPLICATION,  AND  TO THIS END THE
 PROVISIONS OF THIS SECTION ARE SEVERABLE.
   § 5. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law; provided, however, that:
   (a)  if  section  4 of part NN of chapter 55 of the laws of 2018 shall
 not have taken effect on or before such effective date, then section two
 of this act shall take effect on the same date and in the same manner as
 such section of such chapter of the laws of 2018, takes effect; and
   (b) if section 5 of part NN of chapter 55 of the laws  of  2018  shall
 not  have  taken  effect  on or before such effective date, then section
 three of this act shall take effect on the same date  and  in  the  same
 manner  as  such  section  of  such  chapter  of the laws of 2018, takes
 effect.

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Senate Bill S9019A

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Bill Amendments

co-Sponsors

2017-S9019 - Details

2017-S9019 - Summary

2017-S9019 - Sponsor Memo

2017-S9019 - Bill Text download pdf

co-Sponsors

2017-S9019A (ACTIVE) - Details

2017-S9019A (ACTIVE) - Summary

2017-S9019A (ACTIVE) - Sponsor Memo

2017-S9019A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S9019A

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Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Bill Amendments

co-Sponsors

2017-S9019 - Details

2017-S9019 - Summary

2017-S9019 - Sponsor Memo

2017-S9019 - Bill Text download pdf

co-Sponsors

2017-S9019A (ACTIVE) - Details

2017-S9019A (ACTIVE) - Summary

2017-S9019A (ACTIVE) - Sponsor Memo

2017-S9019A (ACTIVE) - Bill Text download pdf

Comments