S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2043
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 22, 2019
                                ___________
 
 Introduced  by  M.  of  A. GUNTHER, GALEF, BENEDETTO, JAFFEE, MONTESANO,
   STEC -- Multi-Sponsored by  --  M.  of  A.  BARCLAY,  CRESPO,  DAVILA,
   GIGLIO,  GOODELL,  PERRY,  RIVERA, THIELE -- read once and referred to
   the Committee on Codes
 
 AN ACT to amend the penal law, in relation to providing that an  elemen-
   tary  or  secondary school student shall be incapable of consenting to
   sexual conduct with a school employee
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 130.00 of the penal law is amended by adding a new
 subdivision 14 to read as follows:
   14. "SCHOOL EMPLOYEE" SHALL MEAN ANY PERSON DEFINED AS  AN  "EMPLOYEE"
 OR  "VOLUNTEER"  PURSUANT  TO  SECTION ELEVEN HUNDRED TWENTY-FIVE OF THE
 EDUCATION LAW.
   § 2. Paragraphs (i) and (j) of subdivision 3 of section 130.05 of  the
 penal  law,  paragraph  (i)  as  amended  and  paragraph (j) as added by
 section 1 of part JJ of chapter 55 of the laws of 2018, are amended  and
 a new paragraph (k) 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01866-01-9

 A. 2043                             2
 
 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
 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)  detained  or  otherwise in the custody of a police officer, peace
 officer, or other law enforcement official and the  actor  is  a  police
 officer, peace officer or other law enforcement official who either: (i)
 is  detaining  or  maintaining custody of such person; or (ii) knows, or
 reasonably should know, that at the time of the offense, such person was
 detained or in custody[.]; OR
   (K) A STUDENT AT AN ELEMENTARY OR SECONDARY SCHOOL, AND THE ACTOR:
   (I) IS A SCHOOL EMPLOYEE AT THE SAME SCHOOL OR CO-LOCATED SCHOOL  SUCH
 STUDENT ATTENDS, AND
   (II)  IS EIGHTEEN YEARS OF AGE OR OLDER AND MORE THAN FOUR YEARS OLDER
 THAN SUCH STUDENT AT THE TIME OF THE ACT, AND
   (III) IS NOT MARRIED TO SUCH STUDENT, AND
   (IV) KNOWS OR REASONABLY SHOULD KNOW THAT SUCH PERSON IS A STUDENT  AT
 SUCH SCHOOL OR CO-LOCATED SCHOOL, AND
   (V) HE OR SHE IS NOT A STUDENT AT THE SAME SCHOOL.
   § 3. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.