STATE OF NEW YORK ________________________________________________________________________ 3578 2023-2024 Regular Sessions IN SENATE February 1, 2023 ___________ Introduced by Sen. STAVISKY -- 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 aggravated sexual abuse against children under age thirteen; and to repeal section 130.65-a of the penal law relating to aggravated sexual abuse in the fourth degree The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 130.65-a of the penal law is REPEALED. 2 § 2. Section 130.66 of the penal law, as added by chapter 181 of the 3 laws of 1996, subdivision 1 as amended by chapter 647 of the laws of 4 2022, subdivision 2 as amended by chapter 485 of the laws of 2009, and 5 subdivision 3 as renumbered by chapter 1 of the laws of 2000, is amended 6 to read as follows: 7 § 130.66 Aggravated sexual abuse in the third degree. 8 [1. A person is guilty of aggravated sexual abuse in the third degree 9 when he or she inserts a foreign object or a finger in the vagina, 10 urethra, penis, rectum or anus of another person: 11 (a) By forcible compulsion; or 12 (b) When the other person is incapable of consent by reason of being 13 physically helpless; 14 (c) When the other person is less than eleven years old; or 15 (d) When the other person is less than thirteen years old and the 16 actor is eighteen years of age or older. 17 2. A person is guilty of aggravated sexual abuse in the third degree 18 when he or she inserts a foreign object in the vagina, urethra, penis, 19 rectum or anus of another person causing physical injury to such person 20 and such person is incapable of consent by reason of being mentally 21 disabled or mentally incapacitated. 22 3. Conduct performed for a valid medical purpose does not violate the 23 provisions of this section] A person is guilty of aggravated sexual 24 abuse in the third degree when such person intentionally, and for no EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06055-02-3
S. 3578 2 1 legitimate purpose, touches the vagina, vulva, penis, rectum, or anus of 2 another person using a finger, hand, or foreign object for the purpose 3 of degrading or abusing such person, or for the purpose of gratifying 4 the actor's sexual desire, when such other person is under the age of 5 thirteen. 6 Aggravated sexual abuse in the third degree is a class [D] E felony. 7 § 3. Subdivision 1 and the closing paragraph of section 130.67 of the 8 penal law, as added by chapter 450 of the laws of 1988, the opening 9 paragraph of subdivision 1 as amended by chapter 485 of the laws of 10 2009, are amended to read as follows: 11 1. A person is guilty of aggravated sexual abuse in the second degree 12 when [he or she] such person inserts a finger, hand, or foreign object 13 in the vagina, urethra, penis, rectum or anus of another person [causing 14 physical injury to such person]: 15 (a) By forcible compulsion; or 16 (b) When the other person is incapable of consent by reason of being 17 physically helpless; or 18 (c) When the other person is incapable of consent by reason of being 19 mentally disabled or mentally incapacitated; or 20 (d) When the other person is less than eleven years old; or 21 (e) When the other person is less than thirteen years old and the 22 actor is eighteen years old or older. 23 Aggravated sexual abuse in the second degree is a class [C] D felony. 24 § 4. Subdivision 1 of section 130.70 of the penal law, as amended by 25 chapter 450 of the laws of 1988, the opening paragraph of subdivision 1 26 as amended by chapter 485 of the laws of 2009, is amended to read as 27 follows: 28 1. A person is guilty of aggravated sexual abuse in the first degree 29 when [he or she] such person inserts a finger, hand, or foreign object 30 in the vagina, urethra, penis, rectum or anus of another person causing 31 physical injury to such person: 32 (a) By forcible compulsion; or 33 (b) When the other person is incapable of consent by reason of being 34 physically helpless; or 35 (c) When the other person is incapable of consent by reason of being 36 mentally disabled or mentally incapacitated; or 37 (d) When the other person is less than eleven years old; or 38 (e) When the other person is less than thirteen years old and the 39 actor is eighteen years old or older. 40 § 5. Paragraph (h) of subdivision 3 of section 130.05 of the penal 41 law, as amended by section 2 of part G of chapter 501 of the laws of 42 2012, is amended to read as follows: 43 (h) a client or patient and the actor is a health care provider or 44 mental health care provider charged with rape in the third degree as 45 defined in section 130.25 of this article, criminal sexual act in the 46 third degree as defined in section 130.40 of this article, aggravated 47 sexual abuse in the [fourth] third degree as defined in section 48 [130.65-a] 130.66 of this article, or sexual abuse in the third degree 49 as defined in section 130.55 of this article, and the act of sexual 50 conduct occurs during a treatment session, consultation, interview, or 51 examination; or 52 § 6. Subdivision 3 of section 130.10 of the penal law, as amended by 53 chapter 264 of the laws of 2003, is amended to read as follows: 54 3. In any prosecution for the crime of rape in the third degree as 55 defined in section 130.25 of this article, criminal sexual act in the 56 third degree as defined in section 130.40 of this article, aggravated
S. 3578 3 1 sexual abuse in the [fourth] third degree as defined in section 2 [130.65-a] 130.66 of this article, or sexual abuse in the third degree 3 as defined in section 130.55 of this article in which incapacity to 4 consent is based on the circumstances set forth in paragraph (h) of 5 subdivision three of section 130.05 of this article it shall be an 6 affirmative defense that the client or patient consented to such conduct 7 charged after having been expressly advised by the health care or mental 8 health care provider that such conduct was not performed for a valid 9 medical purpose. 10 § 7. This act shall take effect immediately.