Eliminates the exemption of married persons from the definition of the commission of "sexual contact" for purposes of sex offenses and endangering the welfare of a vulnerable elderly person.
BILL NUMBER: S7894
TITLE OF BILL : An act to amend the penal law, in relation to the definition of sexual contact for the purposes of sex offenses and endangering the welfare of a vulnerable elderly person
PURPOSE OF BILL : This measure eliminates the marital exception in the penal law provisions relating to certain sex offenses including sexual abuse in the second and third degrees and endangering the welfare of the elderly.
SUMMARY OF PROVISIONS OF BILL : Removes the exemptions for married persons from the definition of the commission of "sexual contact" in subdivision 3 of section 130 of the penal law and subdivision 2 of section 260.31 of the penal law.
JUSTIFICATION : The penal law offenses of sexual abuse in the second and third degrees criminalize subjecting another to non-consensual sexual contact. However, the current definition of sexual contact in PL 130.50 exempts such non-consensual contact between married persons thereby exempting married persons from the crime, even where there is forced compulsion or non-consensual contact. See PL section 130.65 and 130.55.
In 2009, New York enacted L. 2009 c.476, to add the crimes of sexual abuse in the third and second degrees to those family offenses for which a victim may obtain an order of protection in family court. This law was passed recognizing that sexual violence crimes are perpetrated by abusers against their intimate partners as part of the dynamic of power and control, and that such crimes constitute domestic violence. However, the marital exception in the penal law would preclude the ability of victims of domestic violence who are married to their abuser from availing of the full protections of our domestic violence laws.
Furthermore, PL section 26032 and 260.34 penalize non-consensual sexual contact by a caregiver against a vulnerable elderly person. A caregiver may be a spouse. However, subdivision 2 of section 260.31 of the penal law exempts such non-consensual sexual contact between married couples.
In 1984, the Court of Appeals held that there was no rational basis for distinguishing between marital rape and non-marital rape, and therefore declared the marital exception for rape in the first degree and sodomy in the first degree unconstitutional. See people v. Liberto, 64 N.Y.2d 152,485 N.Y.S.2d 207,474 N.E.2d 567(1984). In 1992, the Appellate Division for the Second Department extended the holding in Liberto to sexual abuse in the first degree. The court ruled that sexual abuse in the first degree is a criminal act regardless of the relationship between the actor and the victim. See People v. Orvath, 183 A.D.2d 915,584 N.Y.S.2d 148 (1992).
It is well established that spouses have no right to commit crimes in the name of conjugal visits or familial relations. This measure would remove the marital exception in our current penal law, thereby enabling married couples to avail equal and full protection of New York's penal and domestic violence laws.
LEGISLATIVE HISTORY : New bill, 2010 but similar to A.9938 '10 - Passed Assembly.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS : None. EFFECTIVE DATE : Immediately.
STATE OF NEW YORK ________________________________________________________________________ 7894 IN SENATE May 20, 2010 ___________Introduced by Sen. KRUEGER -- 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 the definition of sexual contact for the purposes of sex offenses and endangering the welfare of a vulnerable elderly person THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 3 of section 130.00 of the penal law, as amended by chapter 650 of the laws of 1984, is amended to read as follows: 3. "Sexual contact" means any touching of the sexual or other intimate parts of a person
[not married to the actor]for the purpose of gratify- ing sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing. S 2. Subdivision 2 of section 260.31 of the penal law, as added by chapter 381 of the laws of 1998, such section as renumbered by chapter 14 of the laws of 2010, is amended to read as follows: 2. "Sexual contact" means any touching of the sexual or other intimate parts of a person [not married to the actor]for the purpose of gratify- ing sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing. S 3. This act shall take effect immediately, except that section two of this act shall take effect on the same date and in the same manner as chapter 14 of the laws of 2010, takes effect.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD16938-01-0