STATE OF NEW YORK ________________________________________________________________________ 494 2023-2024 Regular Sessions IN SENATE January 4, 2023 ___________ Introduced by Sen. STEC -- 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 providing that an elemen- tary or secondary school student shall be incapable of consenting to sexual conduct with a school employee The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 130.00 of the penal law is amended by adding a new 2 subdivision 14 to read as follows: 3 14. "School employee" shall mean any person defined as an "employee" 4 or "volunteer" pursuant to section eleven hundred twenty-five of the 5 education law. 6 § 2. Paragraphs (i) and (j) of subdivision 3 of section 130.05 of the 7 penal law, paragraph (i) as amended and paragraph (j) as added by 8 section 1 of part JJ of chapter 55 of the laws of 2018, are amended and 9 a new paragraph (k) is added to read as follows: 10 (i) a resident or inpatient of a residential facility operated, 11 licensed or certified by (i) the office of mental health; (ii) the 12 office for people with developmental disabilities; or (iii) the office 13 of alcoholism and substance abuse services, and the actor is an employee 14 of the facility not married to such resident or inpatient. For purposes 15 of this paragraph, "employee" means either: an employee of the agency 16 operating the residential facility, who knows or reasonably should know 17 that such person is a resident or inpatient of such facility and who 18 provides direct care services, case management services, medical or 19 other clinical services, habilitative services or direct supervision of 20 the residents in the facility in which the resident resides; or an offi- 21 cer or other employee, consultant, contractor or volunteer of the resi- 22 dential facility, who knows or reasonably should know that the person is 23 a resident of such facility and who is in direct contact with residents 24 or inpatients; provided, however, that the provisions of this paragraph EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01165-01-3
S. 494 2 1 shall only apply to a consultant, contractor or volunteer providing 2 services pursuant to a contractual arrangement with the agency operating 3 the residential facility or, in the case of a volunteer, a written 4 agreement with such facility, provided that the person received written 5 notice concerning the provisions of this paragraph; provided further, 6 however, "employee" shall not include a person with a developmental 7 disability who is or was receiving services and is also an employee of a 8 service provider and who has sexual contact with another service recipi- 9 ent who is a consenting adult who has consented to such contact; [or] 10 (j) detained or otherwise in the custody of a police officer, peace 11 officer, or other law enforcement official and the actor is a police 12 officer, peace officer or other law enforcement official who either: (i) 13 is detaining or maintaining custody of such person; or (ii) knows, or 14 reasonably should know, that at the time of the offense, such person was 15 detained or in custody[.]; or 16 (k) a student at an elementary or secondary school, and the actor: 17 (i) is a school employee at the same school or co-located school such 18 student attends, and 19 (ii) is eighteen years of age or older and more than four years older 20 than such student at the time of the act, and 21 (iii) is not married to such student, and 22 (iv) knows or reasonably should know that such person is a student at 23 such school or co-located school, and 24 (v) he or she is not a student at the same school. 25 § 3. This act shall take effect on the first of November next succeed- 26 ing the date on which it shall have become a law.