S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2628
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 23, 2023
                                ___________
 
 Introduced  by  Sens.  MAY, RAMOS -- read twice and ordered printed, and
   when printed to be committed 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
              

 S. 2628                             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.