S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8773
 
                             I N  S E N A T E
 
                               July 15, 2020
                                ___________
 
 Introduced  by  Sen.  RAMOS  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the civil practice law and rules, the criminal procedure
   law, the executive law, and the legislative law in relation to the use
   in evidence of the fact of possession or presence on the  premises  of
   condoms  and  other  sexual  and  reproductive  health devices; and to
   repeal paragraph (d) of subdivision 1 of section 160.10 of the  crimi-
   nal procedure law relating thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as  the  "Decrimi-
 nalize condoms act".
   § 2. Legislative findings. The legislature hereby finds that promoting
 and  protecting  health  and  respecting and fulfilling human rights are
 necessarily  linked,  and  that  health-oriented  and  rights-based  law
 enforcement efforts are central to the effective provision of government
 services for the benefit of the people of the State. Article 17, section
 3 of the New York constitution requires that the legislature protect and
 promote  the  health  of  the  inhabitants  of this state as a matter of
 public concern. Despite these provisions, for  purposes  of  prosecuting
 certain  criminal,  civil  and administrative offenses, reproductive and
 sexual health tools, including condoms, are currently  being  destroyed,
 confiscated,  or  used  as  evidence  by  law enforcement officers. This
 legislation is intended to strengthen the public health of all New York-
 ers, including the most vulnerable, while preserving the ability of  law
 enforcement  to  prosecute  other crimes such as felony sexual offenses.
 The purpose of this bill is to avoid the disparate impact of  the  prac-
 tice of citing condoms and other reproductive and sexual health tools as
 evidence  upon  survivors  of  trafficking  and  people  who  are or are
 profiled as being engaged in sex work.
   § 3. The civil practice law and rules  is  amended  by  adding  a  new
 section 4519-a to read as follows:
   § 4519-A. POSSESSION OF REPRODUCTIVE OR SEXUAL HEALTH DEVICES; RECEIPT
 INTO EVIDENCE.  1. THE FACT OF POSSESSION OF A CONDOM OR OTHER REPRODUC-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD16901-01-0

 S. 8773                             2
 
 TIVE  OR  SEXUAL  HEALTH  DEVICE  MAY NOT BE RECEIVED IN EVIDENCE IN ANY
 TRIAL, HEARING OR PROCEEDING PURSUANT  TO  SUBDIVISION  ONE  OF  SECTION
 TWELVE  AND  ARTICLE TEN OF THE MULTIPLE DWELLING LAW, SECTIONS TWELVE-A
 AND  TWENTY-THREE  HUNDRED  TWENTY OF THE PUBLIC HEALTH LAW, SECTION TWO
 HUNDRED THIRTY-ONE OF THE REAL  PROPERTY  LAW  OR  SUBDIVISION  FIVE  OF
 SECTION  SEVEN  HUNDRED  ELEVEN AND SECTION SEVEN HUNDRED FIFTEEN OF THE
 REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, OR BY ANY LAW, LOCAL  LAW  OR
 ORDINANCE OF A POLITICAL SUBDIVISION OF THIS STATE, OR BY ANY WORD, RULE
 OR  REGULATION  OF ANY GOVERNMENTAL INSTRUMENTALITY AUTHORIZED BY LAW TO
 ADOPT THE SAME AS EVIDENCE OF PROSTITUTION,  PATRONIZING  A  PROSTITUTE,
 PROMOTING  PROSTITUTION, PERMITTING PROSTITUTION, MAINTAINING A PREMISES
 FOR PROSTITUTION, LEWDNESS OR ASSIGNATION, MAINTAINING  A  BAWDY  HOUSE,
 COMPELLING PROSTITUTION, OR SEX TRAFFICKING.
   2. "REPRODUCTIVE OR SEXUAL HEALTH DEVICE" SHALL INCLUDE ANY CONTRACEP-
 TIVE  OR  OTHER  TOOL  USED  TO PREVENT UNWANTED PREGNANCY OR THE TRANS-
 MISSION OF HIV OR OTHER SEXUALLY TRANSMITTED  DISEASES  AND  INFECTIONS,
 INCLUDING  BUT  NOT LIMITED TO MALE CONDOMS, FEMALE CONDOMS, LUBRICANTS,
 PRE-EXPOSURE PROPHYLAXIS ("PREP"),  POST-EXPOSURE  PROPHYLAXIS  ("PEP"),
 HIV  ANTI-RETROVIRAL MEDICATION, SPERMICIDE, HORMONAL METHODS, EMERGENCY
 CONTRACEPTION, DIAPHRAGM, CERVICAL CAP, OR SPONGE.
   § 4. Section 60.47 of the criminal procedure law, as added by  section
 2  of  part  I  of chapter 57 of the laws of 2015, is amended to read as
 follows:
 § 60.47 Possession of condoms OR OTHER  REPRODUCTIVE  OR  SEXUAL  HEALTH
           DEVICE; receipt into evidence.
   1.  Evidence that a person was in possession of one or more condoms OR
 OTHER REPRODUCTIVE OR SEXUAL HEALTH DEVICE may not be  admitted  at  any
 trial,  hearing,  or  other  proceeding  in  a  prosecution for [section
 230.00] ANY OFFENSE, OR AN ATTEMPT TO COMMIT  ANY  OFFENSE,  DEFINED  IN
 ARTICLE  TWO  HUNDRED  THIRTY  or  section  240.37  of the penal law, OR
 SECTION SIXTY-FIVE HUNDRED TWELVE OF THE  EDUCATION  LAW,  OR  ANY  LAW,
 LOCAL  LAW OR ORDINANCE OF A POLITICAL SUBDIVISION OF THIS STATE, OR ANY
 WORD, RULE OR REGULATION OF ANY GOVERNMENTAL INSTRUMENTALITY  AUTHORIZED
 BY LAW TO ADOPT THE SAME, for the purpose of establishing probable cause
 for an arrest or proving any person's commission or attempted commission
 of  such  offense,  AS  EVIDENCE  OF PROSTITUTION OR TRAFFICKING-RELATED
 ACTIVITY.
   2. "REPRODUCTIVE OR SEXUAL HEALTH DEVICE" SHALL INCLUDE ANY CONTRACEP-
 TIVE OR OTHER TOOL USED TO PREVENT  UNWANTED  PREGNANCY  OR  THE  TRANS-
 MISSION  OF  HIV  OR OTHER SEXUALLY TRANSMITTED DISEASES AND INFECTIONS,
 INCLUDING BUT NOT LIMITED TO MALE CONDOMS,  FEMALE  CONDOMS,  LUBRICANT,
 PRE-EXPOSURE  PROPHYLAXIS  ("PREP"),  POST-EXPOSURE PROPHYLAXIS ("PEP"),
 HIV ANTI-RETROVIRAL MEDICATION, SPERMICIDE, HORMONAL METHODS,  EMERGENCY
 CONTRACEPTION, DIAPHRAGM, CERVICAL CAP, OR SPONGE.
   §  5. Paragraph (d) of subdivision 1 of section 160.10 of the criminal
 procedure law is REPEALED.
   § 5-a. Paragraph (c) of subdivision 1 of section 160.10 of the  crimi-
 nal  procedure  law,  as  amended by chapter 762 of the laws of 1971, is
 amended to read as follows:
   (c) A misdemeanor defined outside the penal law which would constitute
 a felony if such person had a previous  judgment  of  conviction  for  a
 crime[; or].
   §  6. The opening paragraph of subdivision 1, subdivision 2 and subdi-
 vision 3 of section 160.55 of the criminal procedure  law,  the  opening
 paragraph  of  subdivision  1  as  amended by chapter 359 of the laws of
 2019, subdivision 2 as amended by chapter 476 of the laws  of  2009  and

 S. 8773                             3
 
 subdivision  3  as amended by chapter 249 of the laws of 1981 and renum-
 bered by chapter 142 of the  laws  of  1991,  are  amended  to  read  as
 follows:
   Regardless  of  the  class  of offense for which a person is initially
 charged, upon the termination of a criminal action or proceeding against
 a person by the conviction of such person of a traffic infraction  or  a
 violation,  other  than  [a violation of loitering as described in para-
 graph (d) of subdivision one of section 160.10 of this article  or]  the
 violation  of  operating  a  motor  vehicle  while  ability  impaired as
 described in subdivision one of section eleven hundred ninety-two of the
 vehicle and traffic law, unless the district attorney upon  motion  with
 not  less  than  five days' notice to such person or his or her attorney
 demonstrates to the satisfaction of the  court  that  the  interests  of
 justice  require otherwise, or the court on its own motion with not less
 than five days' notice to such person or his or her attorney  determines
 that  the  interests of justice require otherwise and states the reasons
 for such determination on the record, the clerk  of  the  court  wherein
 such  criminal  action  or  proceeding  was terminated shall immediately
 notify the commissioner of the division of criminal justice services and
 the heads of all appropriate police departments and other  law  enforce-
 ment  agencies  that  the action has been terminated by such conviction.
 Upon receipt of notification of such termination:
   2. A report  of  the  termination  of  the  action  or  proceeding  by
 conviction of a traffic violation or a violation other than [a violation
 of  loitering as described in paragraph (d) or (e) of subdivision one of
 section 160.10 of this title or] the  violation  of  operating  a  motor
 vehicle  while  ability  impaired  as  described  in  subdivision one of
 section eleven hundred ninety-two of the vehicle and traffic law,  shall
 be  sufficient  notice of sealing to the commissioner of the division of
 criminal justice services unless the  report  also  indicates  that  the
 court  directed  that  the  record  not  be  sealed  in the interests of
 justice. Where the court has determined pursuant to subdivision  one  of
 this  section that sealing is not in the interests of justice, the clerk
 of the court shall include notification of  that  determination  in  any
 report  to such division of the disposition of the action or proceeding.
 When the defendant has been found guilty of a violation of harassment in
 the second degree and it was determined pursuant to subdivision  eight-a
 of  section  170.10  of  this  title  that  such violation was committed
 against a member of the same family or household as the  defendant,  the
 clerk  of  the court shall include notification of that determination in
 any report to such division of the disposition of the action or proceed-
 ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d)
 of subdivision one of this section.
   3. A person against whom a criminal action or  proceeding  was  termi-
 nated  by  such person's conviction of a traffic infraction or violation
 other than [a violation of loitering as described in  paragraph  (d)  or
 (e)  of  subdivision  one  of  section  160.10  of  this chapter or] the
 violation of  operating  a  motor  vehicle  while  ability  impaired  as
 described in subdivision one of section eleven hundred ninety-two of the
 vehicle  and  traffic  law, prior to the effective date of this section,
 may upon motion apply to the court in which such  termination  occurred,
 upon  not  less than twenty days notice to the district attorney, for an
 order granting to such person the relief set forth in subdivision one of
 this section, and such order shall be granted unless the district attor-
 ney demonstrates to the satisfaction of the court that the interests  of
 justice require otherwise.

 S. 8773                             4
 
   §  7.  Section  841  of  the  executive law is amended by adding a new
 subdivision 7-b to read as follows:
   7-B.  TAKE  SUCH  STEPS  AS MAY BE NECESSARY TO ENSURE THAT ALL POLICE
 OFFICERS AND PEACE OFFICERS CERTIFIED PURSUANT TO SUBDIVISION  THREE  OF
 THIS  SECTION  RECEIVE APPROPRIATE INSTRUCTION REGARDING THE EVIDENTIARY
 PROHIBITION SET FORTH IN SECTION 60.47 OF THE CRIMINAL PROCEDURE LAW AND
 SECTION FORTY-FIVE HUNDRED NINETEEN-A OF  THE  CIVIL  PRACTICE  LAW  AND
 RULES  RELATING  TO  THE USE OF CONDOMS AND OTHER REPRODUCTIVE OR SEXUAL
 HEALTH DEVICES AS EVIDENCE IN CERTAIN TRIALS, HEARINGS  OR  PROCEEDINGS,
 OR AS A BASIS FOR PROBABLE CAUSE FOR ARREST, INCLUDING THAT UNAUTHORIZED
 SEIZURE  OR  CONFISCATION  OF  CONDOMS  AND OTHER REPRODUCTIVE OR SEXUAL
 HEALTH DEVICES IS A BREACH OF PUBLIC POLICY.
   § 8. The legislative law is amended by adding a new section 49 to read
 as follows:
   § 49. REQUIREMENT WITH RESPECT TO BILLS AMENDING  CERTAIN  LAWS  WHICH
 AFFECT HEALTH AND HUMAN RIGHTS. WHENEVER A COMMITTEE FAVORABLY REPORTS A
 BILL TO AMEND ARTICLES TWO HUNDRED THIRTY OR SECTION 240.37 OF THE PENAL
 LAW,  OR, AT THE DISCRETION OF THE VOTING MAJORITY OF THE COMMITTEE, ANY
 BILL WHICH, IF PASSED, WOULD INCREASE OR DECREASE THE NUMBER  OF  ARRES-
 TEES  OR  PRETRIAL OR SENTENCED POPULATION OF CORRECTIONAL FACILITIES IN
 THIS STATE, A MAJORITY OF THE COMMITTEE MEMBERS VOTING MAY REQUEST  THAT
 A HEALTH AND HUMAN RIGHTS IMPACT STATEMENT BE PREPARED.  THE LEGISLATURE
 SHALL  BY  CONCURRENT  RESOLUTION  OF  THE SENATE AND ASSEMBLY PRESCRIBE
 RULES REQUIRING HEALTH AND HUMAN RIGHTS IMPACT STATEMENTS TO  ACCOMPANY,
 ON  A SEPARATE FORM, BILLS AND AMENDMENTS TO BILLS AFTER SUCH BILLS HAVE
 BEEN REPORTED FROM COMMITTEE.  HEALTH AND HUMAN RIGHTS IMPACT STATEMENTS
 SHALL BE PREPARED BEFORE THE BILL IS CONSIDERED FOR FINAL  PASSAGE.  THE
 STATEMENT  SHALL INDICATE WHETHER THE BILL WOULD HAVE A DISPARATE IMPACT
 BY  RACE,  ETHNICITY,  RELIGION,  AGE,  GENDER,   GENDER   IDENTITY   OR
 EXPRESSION, SEXUAL ORIENTATION, IMMIGRATION STATUS, DISABILITY, OR HOUS-
 ING  STATUS  COMPOSITION OF THE ARRESTEE AND CORRECTIONAL FACILITY POPU-
 LATION AND AN EXPLANATION OF THAT IMPACT. ANY IMPACT  STATEMENT  PRINTED
 WITH  OR  PREPARED  FOR A BILL IS SOLELY FOR THE PURPOSE OF INFORMATION,
 SUMMARIZATION AND EXPLANATION FOR MEMBERS OF THE LEGISLATURE  AND  SHALL
 NOT  BE  CONSTRUED  TO REPRESENT THE INTENT OF THE LEGISLATURE OR EITHER
 CHAMBER THEREOF FOR ANY PURPOSE. EACH IMPACT STATEMENT  SHALL  BEAR  THE
 FOLLOWING  DISCLAIMER:  "THE  FOLLOWING  HEALTH  AND HUMAN RIGHTS IMPACT
 STATEMENT IS PREPARED FOR THE BENEFIT OF THE MEMBERS OF THE LEGISLATURE,
 SOLELY FOR PURPOSES OF INFORMATION, SUMMARIZATION  AND  EXPLANATION  AND
 DOES NOT REPRESENT THE INTENT OF THE LEGISLATURE OR EITHER CHAMBER THER-
 EOF FOR ANY PURPOSE."
   §  9.  The  legislative law is amended by adding a new section 83-n to
 read as follows:
   § 83-N. LEGISLATIVE COMMISSION ON HEALTH AND HUMAN  RIGHTS.    1.  THE
 LEGISLATURE  HEREBY  FINDS  THAT  PROMOTING  AND  PROTECTING  HEALTH AND
 RESPECTING AND FULFILLING HUMAN RIGHTS ARE NECESSARILY LINKED, AND  THAT
 COORDINATION  BETWEEN  HEALTH  AND LAW ENFORCEMENT EFFORTS IS CENTRAL TO
 THE EFFECTIVE PROVISION OF GOVERNMENT SERVICES FOR THE  BENEFIT  OF  THE
 PEOPLE OF THE STATE.
   2.  A  LEGISLATIVE  COMMISSION  ON  HEALTH  AND HUMAN RIGHTS IS HEREBY
 ESTABLISHED TO EXAMINE, EVALUATE  AND  MAKE  RECOMMENDATIONS  CONCERNING
 RIGHTS-BASED  APPROACHES  TO  HEALTH  AND LAW ENFORCEMENT INTERVENTIONS.
 THE COMMISSION SHALL ACT AS  A  MECHANISM  FOR  ONGOING  AND  MEANINGFUL
 INVOLVEMENT  OF  THOSE  WHO ARE OR POTENTIALLY COULD BE AFFECTED BY THIS
 LAW, INCLUDING, BUT NOT LIMITED TO, SURVIVORS OF TRAFFICKING, PEOPLE WHO
 ARE OR ARE PROFILED AS BEING INVOLVED IN SEX WORK, COMMUNITIES OF COLOR,

 S. 8773                             5
 
 LESBIAN, GAY, BISEXUAL AND TRANSGENDER PEOPLE, AND PEOPLE  IN  CUSTODIAL
 SETTINGS. THE COMMISSION SHALL PROVIDE MONITORING AND EXPERT PERSPECTIVE
 TO THE LEGISLATURE, PROMOTING AWARENESS OF PROBLEMS IN REAL TIME AS THEY
 EMERGE,  INCREASE  COOPERATION AND COLLABORATION BETWEEN THE INDIVIDUALS
 AND COMMUNITIES DIRECTLY  IMPACTED  AND  THEIR  LEGISLATORS,  AND  ALLOW
 LEGISLATORS  TO SHARE RESPONSIBILITY FOR SUCCESSES AND FAILURES OF THESE
 INITIATIVES. THE COMMISSION SHALL MAKE SUCH RECOMMENDATIONS  AS  IT  MAY
 DEEM  NECESSARY  AS  TO  REGULATIONS,  POLICIES,  PROGRAMS, AND PROPOSED
 LEGISLATION TO PROVIDE AN EQUITABLE SYSTEM OF PROVIDING FOR  THE  PUBLIC
 SAFETY WHILE ALSO PROTECTING PUBLIC HEALTH, TO ENCOURAGE THE MOST EFFEC-
 TIVE  USE OF STATE AND LOCAL RESOURCES, TO PRESERVE THE FISCAL INTEGRITY
 OF BOTH STATE AND LOCAL  GOVERNMENT  HEALTH  SYSTEMS  AND  OTHERWISE  TO
 STRENGTHEN THE FUNDAMENTAL HUMAN RIGHT TO HEALTH.
   3.  THE COMMISSION SHALL CONSIST OF TEN REPRESENTATIVES FROM ORGANIZA-
 TIONS THAT PROMOTE ADVOCACY BY AND FOR  DIRECTLY  IMPACTED  COMMUNITIES.
 FROM  AMONG THE MEMBERS SO APPOINTED, A CHAIRPERSON AND VICE CHAIRPERSON
 SHALL BE DESIGNATED BY THE JOINT  ACTION  OF  THE  CHAIRPERSONS  OF  THE
 SENATE  AND  ASSEMBLY  HEALTH COMMITTEES. ANY VACANCY THAT OCCURS IN THE
 COMMISSION OR IN THE CHAIRMANSHIP OR VICE CHAIRMANSHIP SHALL  BE  FILLED
 IN  THE SAME MANNER IN WHICH THE ORIGINAL APPOINTMENT OR DESIGNATION WAS
 MADE.
   4. THE COMMISSION IN ADDITION TO THE ABOVE MENTIONED POWERS SHALL HAVE
 ALL THE POWERS AND PRIVILEGES OF A  LEGISLATIVE  COMMITTEE  PURSUANT  TO
 THIS CHAPTER.
   5.  FOR  THE  ACCOMPLISHMENT  OF  ITS PURPOSE, THE COMMISSION SHALL BE
 AUTHORIZED AND EMPOWERED TO UNDERTAKE ANY  STUDY,  INQUIRY,  SURVEY,  OR
 ANALYSIS  IT  MAY DEEM RELEVANT THROUGH ITS OWN PERSONNEL IN COOPERATION
 WITH OR BY AGREEMENT WITH ANY OTHER PUBLIC OR PRIVATE AGENCY.
   6. THE COMMISSION MAY REQUIRE AND SHALL RECEIVE FROM  ANY  DEPARTMENT,
 BOARD,  BUREAU,  COMMISSION, AUTHORITY, OFFICE, OR OTHER INSTRUMENTALITY
 OF THE STATE, AND FROM ANY COUNTY, CITY, TOWN OR VILLAGE OF THIS  STATE,
 SUCH  FACILITIES, ASSISTANCE, AND DATA, AS IT DEEMS NECESSARY OR DESIRA-
 BLE FOR PROPER EXECUTION OF ITS POWERS AND DUTIES.
   7. THE COMMISSION MAY HOLD PUBLIC OR PRIVATE HEARINGS AND  SHALL  HAVE
 FULL  POWERS TO SUBPOENA WITNESSES AND ALL RECORDS OR DATA IT SHALL DEEM
 NECESSARY OR DESIRABLE PURSUANT TO THIS CHAPTER.
   8. THE MEMBERS OF THE COMMISSION SHALL SERVE ON A VOLUNTARY BASIS  AND
 RECEIVE NO COMPENSATION FOR THEIR SERVICES.
   §  10.  Paragraph (f) of subdivision 4 of section 837 of the executive
 law, as amended by chapter 169 of the laws of 1994, is amended and a new
 paragraph (g) is added to read as follows:
   (f) Accomplish all of the functions, powers, and duties set  forth  in
 paragraphs (a), (b), (c) and (d) of this subdivision with respect to the
 processing  and  disposition  of cases involving violent felony offenses
 specified in subdivision one of section 70.02 of the penal law[.]; AND
   (G) ACCOMPLISH ALL OF THE FUNCTIONS, POWERS, AND DUTIES SET  FORTH  IN
 PARAGRAPHS (A), (B), (C) AND (D) OF THIS SUBDIVISION WITH RESPECT TO ALL
 CHAPTERS  OF LAW RESULTING FROM LEGISLATIVE BILLS THAT HAVE BEEN SUBJECT
 TO THE PROVISIONS OF  SECTIONS  FORTY-NINE  AND  EIGHTY-THREE-N  OF  THE
 LEGISLATIVE  LAW. THE DIVISION SHALL PRESENT TO THE GOVERNOR, THE TEMPO-
 RARY PRESIDENT OF THE SENATE, THE MINORITY LEADER  OF  THE  SENATE,  THE
 SPEAKER OF THE ASSEMBLY AND THE MINORITY LEADER OF THE ASSEMBLY AN ANNU-
 AL  REPORT  CONTAINING  THE STATISTICS AND OTHER INFORMATION RELEVANT TO
 THIS SUBDIVISION.
   § 11. If any provision of this article or the application  thereof  to
 any  person,  circumstances,  or  political subdivision of this state is

 S. 8773                             6

 adjudged invalid by a court  of  competent  jurisdiction  such  judgment
 shall  not  affect or impair the validity of the other provisions of the
 article or the application thereof to other  political  subdivisions  of
 this state, persons, and circumstances.
   § 12. This act shall take effect on the first of March next succeeding
 the date on which it shall have become a law; provided, however that the
 amendments to article 5-A of the legislative law made by section nine of
 this act shall not affect the repeal of such article and shall be deemed
 repealed therewith.