S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2878
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 26, 2021
                                ___________
 
 Introduced  by  Sen.  RAMOS  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Judiciary
 
 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.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06647-01-1
              

 S. 2878                             2
 
   § 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-
 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].

 S. 2878                             3
 
   § 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
 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

 S. 2878                             4
 
 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.
   §  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.

 S. 2878                             5
 
 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,
 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-

 S. 2878                             6
 
 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
 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.