S605-2013 - NY Senate Open Legislation - Makes certain sex offenses committed against a child class A-I felonies subject to a sentence of imprisonment of 25 years to life; repealer

Makes the commission of rape, a criminal sexual act, aggravated sexual abuse or course of sexual conduct against a child less than 12 years of age or against a child less than 14 years of age by a person 21 years old or more a class A-I felony; eliminates references to such offenses in less severe crimes; includes such offenses within murder in the second degree for purposes of sentencing to life imprisonment without parole for murder committed in the course of committing such sex offenses against a child; designates such sex offenses against a child as sexually violent offenses for the purposes of sex offender registration; requires every sex offender convicted of such an offense to be subject to lifetime electronic monitoring by the division of criminal justice services upon release from prison.

Sponsor: GIANARIS

Co-sponsor(s): O'BRIEN

Committee: CODES
Law Section: Penal Law
Law: Amd SS70.00, 125.25, 130.70 & 130.75, add SS130.36, 130.51, 130.71 & 130.81, rpld S130.35 sub 3, S130.50 sub 3, Pen L; amd S168-a, rel S168-w to be S168-x, add S168-w, Cor L

S605-2013 Actions

Jan 9, 2013: REFERRED TO CODES

S605-2013 Memo

BILL NUMBER:S605

TITLE OF BILL:
An act
to amend the penal law and the correction law, in relation to sex
offenses committed against children under 12 years of age and
sex offenses committed by persons 21 years old or older against children
under
14 years of age;
to amend the correction law, in relation to requiring electronic
monitoring of sex offenders convicted of such offenses against a child;
to repeal
subdivision 3 of section 130.35 of the penal law relating to rape of a
child less than 11 years old; and to repeal subdivision 3 of section
130.50 of the penal law relating to a criminal sexual act with a child
less than 11 years old

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends section 70.00 of the penal law to impose a penalty of
twenty-five years to life imprisonment on a defendant convicted of
rape of a child, criminal sexual act against a child, aggravated
sexual abuse of a child, aggravated course of sexual conduct against
a child.

Section 2 amends section 125.25 of the penal law to establish
penalties for the crimes of rape of a child, criminal sexual act
against a child, aggravated sexual abuse of a child, aggravated
course of sexual conduct against a child if the perpetrator is 18
years old or older.

Section 3 repeals section 130.35 of the penal law.

Section 4 amends the penal law by adding section 130.36 which defines
rape of a child to include acts committed against children under 12,
and under 14 if the perpetrator is 21 or older; makes the crime an
A-1 felony.

Section 5 repeals section 130.50 of the penal law.

Section 6 amends the penal law by adding section 130.51 which defines
criminal sexual act against a child to include acts committed against
children under 12, and under 14 if the perpetrator is 21 or older;
makes the crime an A-1 felony.

Section 7 defines the crime of aggravated sexual abuse.

Section 8 amends the penal law by adding section 130.71 which defines
aggravated sexual abuse of a child to include acts committed against
children under 12, and under 14 if the perpetrator is 21 or older;
makes the crime an A-1 felony.

Section 9 defines the crime of course of sexual conduct against a child.

Section 10 amends the penal law by adding section 130.81 which defines
aggravated course of sexual conduct against a child to include acts
committed against children under 12, and under 14 if the perpetrator
is 21 or older; makes the crime an A-1 felony.


Section 11 amends section 168-a of the correction law to include the
aforementioned crimes under the sexual offender registration act.

Section 12 adds to section 168-w of the correction law to provide for
lifetime electronic monitoring of sex offenders convicted of rape of
a child, criminal sexual act against a child, aggravated sexual abuse
of a child, aggravated course of sexual conduct against a child.

Section 13 enacts the act immediately.

JUSTIFICATION:
In the wake of several recent sex crimes against children, including
the horrifying rape of a thirteen-year-old girl and the abuse of a
nine-year-old girl, it has become clear that the existing penalties
for such heinous crimes do not fit the crime. Considering the lasting
physical, emotional and psychological trauma the victim endures,
combined with the high rate of recidivism among sex offenders, it is
necessary to enact a law that provides New York's children with the
protection they need and deserve.
A sentence of 25 years to life would ensure that sex offenders who
commit these crimes against children would not be on the street to
victimize others. Electronic monitoring after release would also be
an effective method to prevent future attacks.

PRIOR LEGISLATIVE HISTORY:
2012: Senate Bill
2527 (Gianaris) - Died in Senate Codes
Committee
2012: Assembly Bill
4755 (Simotas)- Died in Assembly Codes
Committee
2010: Assembly Bill
5232 (Gianaris)- Died in Assembly Codes
Committee
2008: Assembly Bill
4856( Gianaris)- Died in Assembly Codes
Committee
2006: Assembly Bill
9168(Gianaris)- Died in Assembly Codes
Committee

FISCAL IMPLICATIONS:
To be determined.

EFFECTIVE DATE:
Immediately, with provisions.

S605-2013 Text


                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                     605

                         2013-2014 Regular Sessions

                              I N  SENATE

                                 (PREFILED)

                               January 9, 2013
                                 ___________

  Introduced  by Sen. GIANARIS -- read twice and ordered printed, and when
    printed to be committed to the Committee on Codes

  AN ACT to amend the penal law and the correction law, in relation to sex
    offenses committed against children under 12  years  of  age  and  sex
    offenses  committed  by persons 21 years old or older against children
    under 14 years of age; to amend the correction  law,  in  relation  to
    requiring  electronic  monitoring  of  sex offenders convicted of such
    offenses against a child; to repeal subdivision 3 of section 130.35 of
    the penal law relating to rape of a child less than 11 years old;  and
    to repeal subdivision 3 of section 130.50 of the penal law relating to
    a criminal sexual act with a child less than 11 years old

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. Subparagraph (i) of  paragraph  (a)  of  subdivision  3  of
  section 70.00 of the penal law, as amended by chapter 107 of the laws of
  2006, is amended to read as follows:

    (i) For a class A-I felony, such minimum period shall not be less than
  fifteen  years  nor more than twenty-five years; provided, however, that
  (A) where a sentence, other than a sentence of death or  life  imprison-
  ment  without parole, is imposed upon a defendant convicted of murder in
  the first degree as defined in section 125.27 of this chapter such mini-
  mum period shall be not less than twenty years nor more than twenty-five
  years, and, (B) where a sentence is imposed upon a  defendant  convicted
  of murder in the second degree as defined in subdivision five of section
  125.25  of  this chapter or convicted of aggravated murder as defined in
  section 125.26 of this chapter, the sentence shall be life  imprisonment
  without  parole,  and,  (C) where a sentence is imposed upon a defendant
  convicted of attempted murder in the first degree as defined in  article
  one  hundred  ten of this chapter and subparagraph (i), (ii) or (iii) of
  paragraph (a) of subdivision one and paragraph (b) of subdivision one of

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD01533-01-3

 S. 605                              2

  section 125.27 of this chapter or attempted aggravated murder as defined
  in article one hundred ten of this chapter and section  125.26  of  this
  chapter such minimum period shall be not less than twenty years nor more
  than  forty years, AND, (D) WHERE A SENTENCE IS IMPOSED UPON A DEFENDANT
  CONVICTED OF RAPE OF A CHILD AS  DEFINED  IN  SECTION  130.36,  CRIMINAL
  SEXUAL  ACT  AGAINST  A  CHILD  AS DEFINED IN SECTION 130.51, AGGRAVATED
  SEXUAL ABUSE OF A CHILD AS  DEFINED  IN  SECTION  130.71  OR  AGGRAVATED
  COURSE OF SEXUAL CONDUCT AGAINST A CHILD AS DEFINED IN SECTION 130.81 OF
  THIS CHAPTER SUCH MINIMUM PERIOD SHALL BE TWENTY YEARS.
    S  2.  Subdivision 5 of section 125.25 of the penal law, as amended by
  chapter 320 of the laws of 2006, is amended to read as follows:

    5. Being eighteen years old or more, while in the course of committing
  rape in the first, second or third degree, criminal sexual  act  in  the
  first, second or third degree, sexual abuse in the first degree, RAPE OF
  A CHILD, CRIMINAL SEXUAL ACT AGAINST A CHILD, AGGRAVATED SEXUAL ABUSE OF
  A CHILD, AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A CHILD, aggravated
  sexual  abuse in the first, second, third or fourth degree, or incest in
  the first, second or third degree, against a person less  than  fourteen
  years old, he or she intentionally causes the death of such person.
    S 3. Subdivision 3 of section 130.35 of the penal law is REPEALED.
    S  4.  The penal law is amended by adding a new section 130.36 to read
  as follows:

  S 130.36 RAPE OF A CHILD.
    A PERSON IS GUILTY OF RAPE OF A CHILD WHEN:

    1. HE OR SHE ENGAGES IN SEXUAL INTERCOURSE WITH ANOTHER PERSON WHO  IS
  LESS THAN TWELVE YEARS OLD; OR
    2.  BEING  TWENTY-ONE  YEARS  OLD OR MORE, HE OR SHE ENGAGES IN SEXUAL
  INTERCOURSE WITH ANOTHER PERSON LESS THAN FOURTEEN YEARS OLD.
    RAPE OF A CHILD IS A CLASS A-I FELONY.
    S 5. Subdivision 3 of section 130.50 of the penal law is REPEALED.
    S 6. The penal law is amended by adding a new section 130.51  to  read
  as follows:

  S 130.51 CRIMINAL SEXUAL ACT AGAINST A CHILD.
    A PERSON IS GUILTY OF CRIMINAL SEXUAL ACT AGAINST A CHILD WHEN:

    1.  HE  OR  SHE  ENGAGES IN ORAL SEXUAL CONDUCT OR ANAL SEXUAL CONDUCT
  WITH ANOTHER PERSON WHO IS LESS THAN TWELVE YEARS OLD; OR
    2. BEING TWENTY-ONE YEARS OLD OR MORE, HE OR SHE ENGAGES IN ORAL SEXU-
  AL CONDUCT OR ANAL SEXUAL CONDUCT WITH ANOTHER PERSON WHO IS  LESS  THAN
  FOURTEEN YEARS OLD.
    CRIMINAL SEXUAL ACT AGAINST A CHILD IS A CLASS A-I FELONY.
    S  7.  Subdivision 1 of section 130.70 of the penal law, as amended by
  chapter 450 of the laws of 1988, the opening  paragraph  as  amended  by
  chapter 485 of the laws of 2009, is amended to read as follows:

    1.  A  person is guilty of aggravated sexual abuse in the first degree
  when he or she inserts a foreign object in the vagina,  urethra,  penis,
  rectum or anus of another person causing physical injury to such person:

    (a) By forcible compulsion; or
    (b) When the other  person  is incapable of consent by reason of being
  physically helpless[; or
    (c) When the other person is less than eleven years old].
    S 8. The penal law is amended by adding a new section 130.71  to  read
  as follows:

  S 130.71 AGGRAVATED SEXUAL ABUSE OF A CHILD.
    1. A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE OF A CHILD WHEN:


 S. 605                              3

    (A)  HE OR SHE INSERTS A FOREIGN OBJECT IN THE VAGINA, URETHRA, PENIS,
  RECTUM OR ANUS OF ANOTHER PERSON CAUSING PHYSICAL INJURY TO SUCH  PERSON
  WHEN SUCH OTHER PERSON IS LESS THAN TWELVE YEARS OLD; OR
    (B)  BEING  TWENTY-ONE  YEARS OLD OR MORE, HE OR SHE INSERTS A FOREIGN
  OBJECT IN THE VAGINA, URETHRA, PENIS, RECTUM OR ANUS OF  ANOTHER  PERSON
  CAUSING  PHYSICAL  INJURY  TO SUCH PERSON WHEN SUCH OTHER PERSON IS LESS
  THAN FOURTEEN YEARS OLD.
    2. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE  THE
  PROVISIONS OF THIS SECTION.
    AGGRAVATED SEXUAL ABUSE OF A CHILD IS A CLASS A-I FELONY.
    S  9.  Subdivision 1 of section 130.75 of the penal law, as amended by
  chapter 1 of the laws of 2000, paragraphs (a)  and  (b)  as  amended  by
  chapter 264 of the laws of 2003, is amended to read as follows:

    1.  A  person is guilty of course of sexual conduct against a child in
  the first degree when, over a period of time not less than three  months
  in duration[:
    (a)  he  or  she  engages in two or more acts of sexual conduct, which
  includes at least one act of sexual intercourse,  oral  sexual  conduct,
  anal sexual conduct or aggravated sexual contact, with a child less than
  eleven years old; or
    (b)],  he  or she, being eighteen years old or more, engages in two or
  more acts of sexual conduct, which include at least one  act  of  sexual
  intercourse,  oral  sexual  conduct,  anal  sexual conduct or aggravated
  sexual contact, with a child less than thirteen years old.
    S 10. The penal law is amended by adding a new section 130.81 to  read
  as follows:

  S 130.81 AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A CHILD.
    1. A PERSON IS GUILTY OF AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A
  CHILD  WHEN,  OVER  A PERIOD OF TIME NOT LESS THAN THREE MONTHS IN DURA-
  TION:

    (A) HE OR SHE ENGAGES IN TWO OR MORE ACTS  OF  SEXUAL  CONDUCT,  WHICH
  INCLUDES  AT  LEAST  ONE ACT OF SEXUAL INTERCOURSE, ORAL SEXUAL CONDUCT,
  ANAL SEXUAL CONDUCT OR AGGRAVATED SEXUAL CONTACT, WITH A CHILD LESS THAN
  TWELVE YEARS OLD; OR
    (B) HE OR SHE, BEING TWENTY-ONE YEARS OLD OR MORE, ENGAGES IN  TWO  OR
  MORE  ACTS  OF SEXUAL CONDUCT, WHICH INCLUDES AT LEAST ONE ACT OF SEXUAL
  INTERCOURSE, ORAL SEXUAL CONDUCT,  ANAL  SEXUAL  CONDUCT  OR  AGGRAVATED
  SEXUAL CONTACT, WITH A CHILD LESS THAN FOURTEEN YEARS OLD.
    2.  A  PERSON  MAY NOT BE SUBSEQUENTLY PROSECUTED FOR ANY OTHER SEXUAL
  OFFENSE INVOLVING THE SAME  VICTIM  UNLESS  THE  OTHER  CHARGED  OFFENSE
  OCCURRED OUTSIDE THE TIME PERIOD CHARGED UNDER THIS SECTION.
    AGGRAVATED  COURSE  OF  SEXUAL  CONDUCT AGAINST A CHILD IS A CLASS A-I
  FELONY.
    S 11. Subparagraph (i) of paragraph (a) of subdivision  3  of  section
  168-a  of  the  correction law, as amended by chapter 107 of the laws of
  2006, is amended to read as follows:

    (i) a conviction of or a conviction for an attempt to  commit  any  of
  the  provisions  of  sections  130.35,  130.36,  130.50, 130.51, 130.65,
  130.66, 130.67, 130.70,  130.71,  130.75,  130.80,  130.81,  130.95  and
  130.96 of the penal law, or
    S  12.  Section  168-w of the correction law, as relettered by chapter
  604 of the laws of 2005, is relettered 168-x and a new section 168-w  is
  added to read as follows:

    S  168-W.  ELECTRONIC  MONITORING OF CERTAIN SEX OFFENDERS. 1. ANY SEX
  OFFENDER HAVING BEEN CONVICTED OF RAPE OF A CHILD AS DEFINED IN  SECTION
  130.36,  CRIMINAL  SEXUAL  ACT  AGAINST  A  CHILD  AS DEFINED IN SECTION

 S. 605                              4

  130.51, AGGRAVATED SEXUAL ABUSE OF A CHILD AS DEFINED IN SECTION  130.71
  OR  AGGRAVATED  COURSE  OF  SEXUAL CONDUCT AGAINST A CHILD AS DEFINED IN
  SECTION 130.81 OF THE PENAL LAW SHALL BE PLACED ON ELECTRONIC MONITORING
  FOR LIFE.
    2. THE DIVISION SHALL ESTABLISH A SYSTEM OF ACTIVE ELECTRONIC MONITOR-
  ING  THAT IDENTIFIES THE LOCATION OF A SEX OFFENDER REQUIRED TO BE MONI-
  TORED PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THAT CAN  PRODUCE,
  UPON  REQUEST, REPORTS OR RECORDS OF THE SEX OFFENDER'S PRESENCE NEAR OR
  WITHIN A CRIME SCENE OR PROHIBITED AREA OR THE SEX OFFENDER'S  DEPARTURE
  FROM SPECIFIED GEOGRAPHIC LIMITATIONS.
    3.  THE  DIVISION  SHALL  ALSO PROMULGATE REGULATIONS IMPLEMENTING THE
  IMPOSITION AND COLLECTION  OF  FEES  RELATED  TO  ELECTRONIC  MONITORING
  PURSUANT  TO  THIS  SECTION. SUCH REGULATIONS SHALL UTILIZE A MEANS TEST
  BASED ON TWO HUNDRED PERCENT OF THE FEDERAL POVERTY  GUIDELINES  PROMUL-
  GATED  ANNUALLY  BY  THE FEDERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES
  AND IF THE SEX OFFENDER FALLS BELOW SUCH PERCENTAGE THEN NO FEE SHALL BE
  CHARGED, AND EARNINGS ABOVE SUCH PERCENTAGE SHALL  BE  CONSIDERED  ON  A
  SLIDING  SCALE. SUCH REGULATIONS SHALL ALSO PROVIDE THAT THE DIVISION OF
  PAROLE CONSIDER ANY ADDITIONAL TEST OR  INDICIA  THAT  DEMONSTRATES  THE
  INABILITY  OF THE SEX OFFENDER TO PAY SUCH FEES.  EMPLOYEES OF THE DIVI-
  SION OF PAROLE SHALL BE PROHIBITED FROM COLLECTING ELECTRONIC MONITORING
  RELATED FEES.
    4. ANY SEX OFFENDER REQUIRED TO BE ELECTRONICALLY  MONITORED  PURSUANT
  TO THE PROVISIONS OF THIS SECTION WHO VIOLATES SUCH REQUIREMENT SHALL BE
  GUILTY  OF  A  CLASS E FELONY UPON CONVICTION FOR THE FIRST OFFENSE, AND
  UPON CONVICTION FOR A SECOND OR SUBSEQUENT OFFENSE SHALL BE GUILTY OF  A
  CLASS  D FELONY. ANY SUCH VIOLATION MAY ALSO BE THE BASIS FOR REVOCATION
  OF PAROLE PURSUANT TO SECTION TWO HUNDRED FIFTY-NINE-I OF THE  EXECUTIVE
  LAW.
    S  13.  This  act  shall  take  effect  immediately and shall apply to
  offenses committed on or after  such  effective  date;  furthermore  all
  offenses committed prior to such effective date shall be governed by the
  provisions of law in effect immediately before such date.

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S605-2013: Makes certain sex offenses committed against a child class A-I felonies subject to a sentence of imprisonment of 25 years to life; repealer

S605-2013 Actions

S605-2013 Memo

S605-2013 Text

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