S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4404
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                             February 4, 2025
                                ___________
 
 Introduced  by  Sen.  MAY  --  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 (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
              

 S. 4404                             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.