Provides the same criminal penalties for endangering the welfare of a care dependent person as exist for vulnerable elderly persons

Title of bill

An act to amend the penal law, in relation to endangering the welfare of a care dependent person

Purpose

This bill enhances the penalty for caregivers who assault or engage in prohibited sexual activity with a care dependent person.

Summary of provisions

The bill amends Penal Law §260.30 to define a "care dependent person" as one who is a patient at a hospital, nursing home or residential health care facility. The bill amends the provisions of the first and second degree crimes of Endangering the Welfare of a Vulnerable Elderly Person (penal Law §§260.32 and 260.34) to expand the currently prohibited conduct to include cases where a "care dependent person" is the victim.

The present definition of "vulnerable elderly person" would be amended to delete the criterion that the individual's disease or infirmity be associated with "advanced age."

The bill takes effect on the first day of November after enactment.

Existing law

Penal Law §§260.32 and 260.34 provide enhanced penalties for Endangering the Welfare of an Elderly Person. The proscribed conduct, which otherwise would be punishable as a misdemeanor, is classified as a Class E felony if the victim is a "vulnerable elderly person," and as a Class D felony where such a victim incurs serious physical injury.

Justification

In 1998, the legislature recognized that caregivers of the vulnerable elderly owed those in their custody a special duty of care, and enhanced penalties for caregivers who betray the trust of their elderly charges by causing them physical injury or subjecting them to prohibited sexual conduct. The specific crimes of Endangering the Welfare of a Vulnerable Elderly Person in the first and second degree were established. The second degree crime provides for punishment as a class E felony in cases where physical injury is caused either intentionally or recklessly, and where the caregiver engages in sexual contact with the vulnerable person without that person's consent The first degree crime, punishable as a class D felony, applies when the caregiver intentionally or recklessly causes the patient serious physical injury.

This bill would make identical enhanced penalties apply to such conduct when any victim is dependent on care being provided in an institutional setting. The bill would retain the definition of "caregiver" while expanding the population protected to include those who are patients or residents of nursing homes, hospitals or residential health care facilities. This recognizes that care dependent persons of whatever age can exhibit a special vulnerability when isolated from family and friends, and that all persons entrusted with their care and custody owe a special duty of care to safeguard their welfare.

In addition, this bill would remove the requirement that an elderly person's disease or infirmity must be associated with advanced age, so as to protect, for example, elderly persons whose infirmity predated or is not associated with their age.

Legislative history

2007-2008: S.4966 - Referred to Codes

This bill was introduced S.4105/A.4828 during the 2005-06 legislative session and as S.3214/A.8735 in the 2003-04 legislative session and as S.5301/A.11344 during the 2001-02 session.

Fiscal implications

There are no fiscal implications.

Effective date

This bill takes effect on the first day of November after it becomes a law.