S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4619
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 4, 2021
                                ___________
 
 Introduced by M. of A. JENSEN -- read once and referred 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.
   (D) "MENTAL DISABILITY" MEANS THAT A  PERSON  SUFFERS  FROM  A  MENTAL
 DISEASE  OR  DEFECT  WHICH  RENDERS  HIM  OR  HER  INCAPABLE OF INFORMED
 CONSENT.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08836-01-1

 A. 4619                             2
 
   (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.