S T A T E O F N E W Y O R K
________________________________________________________________________
1719--C
Cal. No. 61
2019-2020 Regular Sessions
I N S E N A T E
January 15, 2019
___________
Introduced by Sens. MARTINEZ, BOYLE, BIAGGI, GOUNARDES, HOYLMAN, KAMIN-
SKY, KRUEGER, THOMAS -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported favorably from said committee, ordered
to first and second report, ordered to a third reading, amended and
ordered reprinted, retaining its place in the order of third reading
-- again amended and ordered reprinted, retaining its place in the
order of third reading
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 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 IDENTIFI-
ABLE 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 THAT THE IMAGE WOULD REMAIN
PRIVATE AND THE ACTOR KNEW OR REASONABLY SHOULD HAVE KNOWN THE PERSON
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06276-12-9
S. 1719--C 2
DEPICTED INTENDED FOR THE STILL OR VIDEO IMAGE TO REMAIN PRIVATE,
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;
(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 PUBLIC OR COMMERCIAL
SETTING; OR
(D) DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE MADE FOR A
LEGITIMATE PUBLIC PURPOSE.
4. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT, OR TO ENLARGE,
THE PROTECTIONS THAT 47 U.S.C § 230 CONFERS ON AN INTERACTIVE COMPUTER
SERVICE FOR CONTENT PROVIDED BY ANOTHER INFORMATION CONTENT PROVIDER, AS
SUCH TERMS ARE DEFINED IN 47 U.S.C. § 230.
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:
S. 1719--C 3
§ 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
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. ANY PERSON DEPICTED IN A STILL OR VIDEO
IMAGE, REGARDLESS OF WHETHER OR NOT THE ORIGINAL STILL OR VIDEO IMAGE
WAS CONSENSUALLY OBTAINED, SHALL HAVE A CAUSE OF ACTION AGAINST AN INDI-
VIDUAL 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 THAT THE
IMAGE WOULD REMAIN PRIVATE; 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.
2. IN ANY ACTION COMMENCED PURSUANT TO SUBDIVISION ONE 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.
S. 1719--C 4
3. 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 PUBLIC OR COMMERCIAL
SETTING; OR
D. DISSEMINATION OR PUBLICATION OF AN INTIMATE STILL OR VIDEO IMAGE
MADE FOR A LEGITIMATE PUBLIC PURPOSE.
4. 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 THAT THE IMAGE WOULD REMAIN PRIVATE, MAY MAINTAIN AN
ACTION OR SPECIAL PROCEEDING FOR A COURT ORDER TO REQUIRE ANY WEBSITE
THAT IS SUBJECT TO PERSONAL JURISDICTION UNDER SUBDIVISION FIVE OF THIS
SECTION TO PERMANENTLY REMOVE SUCH STILL OR VIDEO IMAGE; ANY SUCH COURT
ORDER GRANTED PURSUANT TO THIS SUBDIVISION MAY DIRECT REMOVAL ONLY AS TO
IMAGES THAT ARE REASONABLY WITHIN SUCH WEBSITE'S CONTROL.
5. A. ANY WEBSITE THAT HOSTS OR TRANSMITS A STILL OR VIDEO IMAGE,
VIEWABLE IN THIS STATE, TAKEN UNDER CIRCUMSTANCES WHERE THE PERSON
DEPICTED HAD A REASONABLE EXPECTATION THAT THE IMAGE WOULD REMAIN
PRIVATE, 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.
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.
10. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT, OR TO
ENLARGE, THE PROTECTIONS THAT 47 U.S.C § 230 CONFERS ON AN INTERACTIVE
COMPUTER SERVICE FOR CONTENT PROVIDED BY ANOTHER INFORMATION CONTENT
PROVIDER, AS SUCH TERMS ARE DEFINED IN 47 U.S.C. § 230.
§ 5. This act shall take effect on the sixtieth day after it shall
have become a law.
