S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    71
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by  Sen.  ROBACH -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the penal law, in relation to elder abuse through social
   media
 
   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 260.40 to
 read as follows:
 § 260.40 UNLAWFUL POSTING OF  A  VULNERABLE  ELDERLY  PERSON  ON  SOCIAL
            MEDIA.
   A  PERSON IS GUILTY OF UNLAWFUL POSTING OF A VULNERABLE ELDERLY PERSON
 ON SOCIAL MEDIA WHEN, BEING A CAREGIVER WHILE PERFORMING THEIR  DUTY  OF
 CARE  FOR A VULNERABLE ELDERLY PERSON, HE OR SHE POSTS AN IMAGE OR VIDEO
 OF SUCH PERSON ON SOCIAL MEDIA INCLUDING, BUT NOT LIMITED  TO  FACEBOOK,
 YOUTUBE,  TWITTER,  INSTAGRAM, SNAPCHAT, TUMBLR AND FLICKR, WITHOUT SUCH
 PERSON'S CONSENT.
   1. THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS SECTION:
   (A) "FORCIBLE COMPULSION" MEANS TO COMPEL BY EITHER:
   (I) USE OF PHYSICAL FORCE; OR
   (II) A THREAT, EXPRESS OR IMPLIED, WHICH PLACES A PERSON  IN  FEAR  OF
 IMMEDIATE  DEATH  OR  PHYSICAL  INJURY  TO  HIMSELF,  HERSELF OR ANOTHER
 PERSON, OR IN FEAR THAT HE, SHE OR ANOTHER PERSON  WILL  IMMEDIATELY  BE
 KIDNAPPED.
   (B)  "PHYSICAL HELPLESSNESS" MEANS THAT A PERSON IS UNCONSCIOUS OR FOR
 ANY OTHER REASON IS PHYSICALLY UNABLE TO COMMUNICATE UNWILLINGNESS TO AN
 ACT.
   (C) "MENTAL INCAPACITY" MEANS AN INDIVIDUAL DOES  NOT  COMPREHEND  THE
 NATURE AND CONSEQUENCES OF WHAT HE OR SHE CONSENTS TO.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05215-01-9
              

 S. 71                               2
 
   (D)  "MENTAL  DISABILITY"  MEANS  THAT  A PERSON SUFFERS FROM A MENTAL
 DISEASE OR DEFECT  WHICH  RENDERS  HIM  OR  HER  INCAPABLE  OF  INFORMED
 CONSENT.
   (E)  "CAREGIVER" MEANS A PERSON WHO (I) ASSUMES RESPONSIBILITY FOR THE
 CARE OF A VULNERABLE ELDERLY PERSON PURSUANT  TO  A  COURT  ORDER;  (II)
 RECEIVES MONETARY OR OTHER VALUABLE CONSIDERATION FOR PROVIDING CARE FOR
 A  VULNERABLE  ELDERLY  PERSON;  (III) IS IDENTIFIED AS A CAREGIVER BY A
 PATIENT UNDER THE PUBLIC HEALTH LAW WHO PROVIDES  AFTER-CARE  ASSISTANCE
 TO  A  PATIENT LIVING IN HIS OR HER RESIDENCE INCLUDING, BUT NOT LIMITED
 TO, A RELATIVE, PARTNER,  FRIEND  OR  NEIGHBOR  WHO  HAS  A  SIGNIFICANT
 RELATIONSHIP  WITH THE PATIENT; OR (IV) IS AN INFORMAL CAREGIVER SUCH AS
 A FAMILY MEMBER, FRIEND, NEIGHBOR, OR OTHER NATURAL PERSON WHO  NORMALLY
 PROVIDES  THE  DAILY  CARE OR SUPERVISION OF A VULNERABLE ELDERLY PERSON
 WHO MAY, BUT NEED NOT RESIDE IN THE SAME  HOUSEHOLD  AS  THE  VULNERABLE
 ELDERLY PERSON.
   (F)  "VULNERABLE  ELDERLY PERSON" MEANS A PERSON SIXTY YEARS OF AGE OR
 OLDER WHO IS SUFFERING FROM  A  DISEASE  OR  INFIRMITY  ASSOCIATED  WITH
 ADVANCED   AGE  AND  MANIFESTED  BY  DEMONSTRABLE  PHYSICAL,  MENTAL  OR
 EMOTIONAL DYSFUNCTION TO THE EXTENT THAT  THE  PERSON  IS  INCAPABLE  OF
 ADEQUATELY PROVIDING FOR HIS OR HER OWN HEALTH OR PERSONAL CARE.
   2. LACK OF CONSENT UNDER THIS SECTION RESULTS FROM:
   (A) FORCIBLE COMPULSION;
   (B) PHYSICAL HELPLESSNESS;
   (C) MENTAL INCAPACITY;
   (D) MENTAL DISABILITY; OR
   (E)  ANY  CIRCUMSTANCE  IN  WHICH  THE  VICTIM  DOES  NOT EXPRESSLY OR
 IMPLIEDLY ACQUIESCE IN THE ACTOR'S CONDUCT.
   UNLAWFUL POSTING OF A VULNERABLE ELDERLY PERSON ON SOCIAL MEDIA  IS  A
 CLASS A MISDEMEANOR.
   § 2. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.