S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5399
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 13, 2025
                                ___________
 
 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 (j) and (k) of subdivision 3 of section 130.05
 of the penal law, paragraph (j) as added by section  1  of  part  JJ  of
 chapter  55  of  the laws of 2018, and paragraph (k) as added by chapter
 503 of the laws of 2024, are amended and a new paragraph (l) is added to
 read as follows:
   (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) under the supervision of a local probation department, pursuant to
 section  two hundred seventy-two of the correction law, or another local
 department or agency which fulfills a similar function and the actor  is
 an  employee  who  knows  or  reasonably should know that such person is
 committed to the  supervision  of  a  local  probation  department.  For
 purposes  of  this paragraph, "employee" means an employee of such local
 probation department or agency who, as part of his  or  her  employment,
 supervises  the  victim at the time of the offense or has supervised the
 victim and the victim is still under supervision of  a  local  probation
 department or agency at the time of the offense[.]; OR
   (L)  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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD08589-01-5
              

 A. 5399                             2
 
 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]  THEIR  incapacity  to  consent
 because  [he  or  she]  SUCH  VICTIM  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 paragraph (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 (L) 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; provided however, that if chapter 503 of the laws of
 2024 shall not have taken effect on or before such date then the  amend-
 ments  to  paragraph (k) of subdivision 3 of section 130.05 of the penal
 law made by section one of this act shall take effect on the  same  date
 and  in  the  same  manner  as  such  chapter of the laws of 2024, takes
 effect.