Provides that an elementary or secondary student shall not have capacity to consent to sexual conduct with a school employee

Title of bill

An act to amend the penal law, in relation to providing that an elementary or secondary school student shall be incapable of consenting to sexual conduct with a school employee

Purpose

To criminalize school employees for sexual conduct with full time students of elementary and secondary schools.

Summary of provisions

Section one amends section 130.00 of the penal law by defining "school employee."

Section two amends paragraph (h) of subdivision 3 of section 130.05 of the penal law and adds a new paragraph (i) to include school employees, being eighteen years of age or older, at the same school such student attends to be charged with a crime if sexual conduct occurs.

Section three contains the effective date.

Existing law

Section 130.05 provides for the definition of sex offense with lack of consent as rape in the third degree, which is a class E felony and carries a sentence of 1 1/3 - 4 years imprisonment.

Justification

This legislation has been introduced at the request of the New York State District Attorneys' Association's Legislative Committee in order to criminalize sexual conduct between school employees or volunteers and students. This legislation seeks to assign a criminal penalty to these persons who engage in sexual conduct with a person that he or she knows or reasonably should know is a full time student at the school that they are employed.

Children need to be protected from those in positions of power who may try and manipulate them into engaging in sexual activities, even if they are at the age of consent. There have been far too many instances of inappropriate sexual conduct between teachers and their students.

This legislation also defines the term school employee to mean any person defined as an employee or volunteer pursuant to section 1125 of the education law. Any person receiving compensation from a school district where services performed involve direct student contact and any person, other than an employee, who provide services to a school or school district, which involve direct student contact would be considered a school employee. This legislation addresses any possible adult that is in a position of trust in a school.

Twenty-two other states have recognized the seriousness of the issue and criminalize this conduct under their current statutes.

Legislative history

2007/08: S.1116-B Passed Senate; A.7671 Codes 2006: S.8098 Passed Senate

Fiscal implications

None.

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall have become a law.