S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    45
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  M.  of A. GUNTHER, GALEF, BENEDETTO, MONTESANO -- Multi-
   Sponsored by -- M.  of  A.  BARCLAY,  DAVILA,  J. M. GIGLIO,  GOODELL,
   PERRY, J. 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-

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02430-01-1

 A. 45                               2
 
 dential facility, who knows or reasonably should know that the person is
 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.