S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    692
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 11, 2023
                                ___________
 
 Introduced by M. of A. HUNTER, EPSTEIN, JACKSON, STIRPE -- read once and
   referred to the Committee on Codes
 
 AN ACT to amend the penal law, in relation to establishing incapacity to
   consent  when  a person is a witness to or subject of an investigation
   under certain circumstances

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  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] ADDICTION services AND SUPPORTS, 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 resi-
 dent resides; or an officer or other employee, consultant, contractor or
 volunteer of the residential 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,  contrac-
 tor  or  volunteer providing services pursuant to a contractual arrange-
 ment 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00453-01-3
              

 A. 692                              2
 
 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  recipient  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  WITNESS  TO  OR VICTIM OF AN INCIDENT UNDER INVESTIGATION BY A
 POLICE OFFICER, PEACE OFFICER OR OTHER LAW ENFORCEMENT  OFFICIAL,  OR  A
 SUSPECT OR PERSON OF INTEREST IN SUCH AN INVESTIGATION, AND THE ACTOR IS
 A  POLICE  OFFICER,  PEACE OFFICER OR OTHER LAW ENFORCEMENT OFFICIAL WHO
 EITHER: (I) IS PARTICIPATING IN THE INVESTIGATION OF SUCH  INCIDENT;  OR
 (II)  KNOWS, OR REASONABLY SHOULD KNOW, THAT AT THE TIME OF THE OFFENSE,
 SUCH PERSON WAS A WITNESS, VICTIM, SUSPECT, OR  PERSON  OF  INTEREST  IN
 SUCH INVESTIGATION.  NOTWITHSTANDING THE PROVISIONS OF THIS PARAGRAPH, A
 WITNESS  TO, VICTIM, SUSPECT, OR PERSON OF INTEREST IN AN INCIDENT UNDER
 INVESTIGATION BY A POLICE OFFICER, PEACE OFFICER, OR OTHER LAW  ENFORCE-
 MENT  OFFICIAL  SHALL NOT BE DEEMED INCAPABLE OF CONSENT WHERE THE ACTOR
 AND SUCH WITNESS, VICTIM, SUSPECT, OR PERSON OF INTEREST HAD ENGAGED  IN
 A SEXUAL RELATIONSHIP PRIOR TO THE COMMENCEMENT OF SUCH INVESTIGATION.
   §  2.  Subdivision 4 of section 130.10 of the penal law, as amended by
 section 2 of part JJ of chapter 55 of the laws of 2018,  is  amended  to
 read as follows:
   4. In any prosecution under this article in which the victim's lack of
 consent  is  based solely on his or her incapacity to consent because he
 or she was less than seventeen years old, mentally disabled, a client or
 patient and the actor is a health care provider, detained  or  otherwise
 in custody of law enforcement under the circumstances described in para-
 graph  (j)  of  subdivision  three  of section 130.05 of this article, A
 WITNESS TO OR  SUBJECT  OF  AN  INVESTIGATION  UNDER  THE  CIRCUMSTANCES
 DESCRIBED  IN  PARAGRAPH  (K)  OF SUBDIVISION THREE OF SECTION 130.05 OF
 THIS ARTICLE, or committed to the care and custody or supervision of the
 state department of corrections and community supervision or a  hospital
 and  the  actor is an employee, it shall be a defense that the defendant
 was married to the victim as defined  in  subdivision  four  of  section
 130.00 of this article.
   §  3.  This  act shall take effect on the thirtieth day after it shall
 have become a law.