S T A T E   O F   N E W   Y O R K
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                                  452--A
     Cal. No. 100
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by Sens. BIAGGI, BROUK, COMRIE, COONEY, GOUNARDES, HARCKHAM,
   HINCHEY, HOYLMAN, JACKSON, KAVANAGH, LIU, MANNION, MAY, MYRIE, PARKER,
   REICHLIN-MELNICK, RIVERA, SALAZAR, SEPULVEDA, SERRANO, SKOUFIS -- read
   twice and ordered printed, and when printed to  be  committed  to  the
   Committee  on Codes -- reported favorably from said committee, ordered
   to first and second report, ordered to a third  reading,  amended  and
   ordered reprinted, retaining its place in the order of third reading
 
 AN ACT to amend the penal law, in relation to prohibiting the use of the
   intoxication  of  a  victim  as a defense to a criminal charge for sex
   crimes and creating an affirmative defense for such criminal charges
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Paragraph  (d)  of subdivision 2 of section 130.05 of the
 penal law, as amended by chapter 40 of the laws of 2004, is amended  and
 a new paragraph (e) is added to read as follows:
   (d)  Where  the  offense  charged  is  SEXUAL MISCONDUCT AS DEFINED IN
 SUBDIVISIONS ONE AND TWO OF SECTION 130.20, rape in the third degree  as
 defined  in  subdivision three of section 130.25, or criminal sexual act
 in the third degree as defined in subdivision three of  section  130.40,
 in  addition  to  forcible compulsion, circumstances under which, at the
 time of the act of intercourse,  oral  sexual  conduct  or  anal  sexual
 conduct,  the victim clearly expressed that he or she did not consent to
 engage in such act, and a reasonable person  in  the  actor's  situation
 would  have  understood such person's words and acts as an expression of
 lack of consent to such act under all the circumstances[.]; OR
   (E) WHERE THE OFFENSE CHARGED  IS  SEXUAL  MISCONDUCT  AS  DEFINED  IN
 SUBDIVISIONS  ONE AND TWO OF SECTION 130.20, RAPE IN THE THIRD DEGREE AS
 DEFINED IN SUBDIVISION THREE OF SECTION 130.25, OR CRIMINAL  SEXUAL  ACT
 IN  THE  THIRD DEGREE AS DEFINED IN SUBDIVISION THREE OF SECTION 130.40,
 IN ADDITION TO FORCIBLE COMPULSION, CIRCUMSTANCES UNDER  WHICH,  AT  THE
 
              

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02954-04-1

 S. 452--A                           2
 
 TIME  OF  THE  ACT  OF  INTERCOURSE,  ORAL SEXUAL CONDUCT OR ANAL SEXUAL
 CONDUCT, THE VICTIM IS UNDER THE INFLUENCE OF ANY DRUG,  INTOXICANT,  OR
 OTHER  SUBSTANCE TO A DEGREE WHICH RENDERS SUCH PERSON TEMPORARILY INCA-
 PABLE  OF   APPRAISING OR CONTROLLING HIS OR HER CONDUCT AND SUCH CONDI-
 TION IS KNOWN OR REASONABLY SHOULD BE KNOWN TO A PERSON IN  THE  ACTOR'S
 SITUATION.
   § 2. Section 130.10 of the penal law is amended by adding a new subdi-
 vision 5 to read as follows:
   5. IN ANY PROSECUTION FOR THE CRIME OF SEXUAL MISCONDUCT AS DEFINED IN
 SUBDIVISIONS  ONE AND TWO OF SECTION 130.20, RAPE IN THE THIRD DEGREE AS
 DEFINED IN SUBDIVISION THREE OF SECTION 130.25, OR CRIMINAL  SEXUAL  ACT
 IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION THREE OF SECTION 130.40 IN
 WHICH  LACK  OF CONSENT IS BASED ON THE CIRCUMSTANCES SET FORTH IN PARA-
 GRAPH (E) OF SUBDIVISION THREE OF SECTION 130.05  OF  THIS  ARTICLE,  IT
 SHALL  BE  AN  AFFIRMATIVE DEFENSE THAT THE DEFENDANT, AT THE TIME HE OR
 SHE ENGAGED IN THE CONDUCT CONSTITUTING THE OFFENSE, DID NOT KNOW OF THE
 FACTS OR CONDITIONS RESPONSIBLE FOR SUCH LACK OF CONSENT.
   § 3. This act shall take effect immediately.