Bill 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

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.

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  • Jan 8, 2014: REFERRED TO CODES
  • Jan 9, 2013: REFERRED TO CODES

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 605 2013-2014 Regular Sessions IN 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
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:
(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
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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