Includes individuals with a mental defect as a victim under sexual abuse in the first degree.
TITLE OF BILL: An act to amend the penal law, in relation to including individuals with a mental defect as a victim under sexual abuse in the first degree
PURPOSE: The purpose of this legislation is to amend Sexual Abuse in the First Degree to include a victim's mental disability as grounds for this felony charge.
SUMMARY OF PROVISIONS:
Section 1 adds a new subdivision 5 to Section 130.65 of the penal law, as amended by chapter 26 of the laws of 2011. The new subdivision 5 reads: When the other person has a mental disease or defect. Section 2 sets the effective date to begin on the 90th day after becoming law.
EXISTING LAW: New York law does not sufficiently protect our mentally disabled population with respect to sexual abuse. It is only a misdemeanor to sexually abuse a mentally disabled person (Sexual Abuse in the Second Degree, Penal Law § 130.60(1). The crime is only a felony if the person is 1) less than eleven years old; 2) is physically helpless; or 3) forcible compulsion is used. Rape in the Second Degree, Penal Law
§ 130.30(2) makes it a felony to rape or engage in a criminal sexual act with a mentally disabled individual and Criminal Sexual Act in the second Degree, penal Law § 130.45(2). Both are only D felonies and the penalties imposed for these crimes are inadequate.
JUSTIFICATION: In a recent court decision (NYS v Maclean) vacated the jury's verdict of guilty on the felony forcible compulsion count Class B Felony of Sexual Abuse 1st Degree on the issue of what constitutes forcible compulsion when a twelve year old, severely handicapped and disabled girl is sexually abused by an adult. The Penal Law Felony sanctions and protection are not provided for by current law where the child/infant does not resist and is incapable of articulating a fear or threat of death or serious injury as required by the Penal Law statutory definition of "physical compulsion."
LEGISLATIVE HISTORY: 2011-12: S.621, Referred to Codes 2009-10: S.6285 (Klein) Referred to Codes 2007-08: S.8759 (Bonacic) Referred to Rules
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: First day of November next succeeding its enactment.
STATE OF NEW YORK ________________________________________________________________________ 2259 2013-2014 Regular Sessions IN SENATE January 15, 2013 ___________Introduced by Sens. KLEIN, BONACIC, RANZENHOFER -- 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 including individuals with a mental defect as a victim under sexual abuse in the first degree THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 4 of section 130.65 of the penal law, as amended by chapter 26 of the laws of 2011, is amended and a new subdivi- sion 5 is added to read as follows: 4. When the other person is less than thirteen years old and the actor is twenty-one years old or older
[.]; OR 5. WHEN THE OTHER PERSON HAS A MENTAL DISEASE OR DEFECT. S 2. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02375-02-3