Provides a reporting requirement regarding sexual conduct by an employee with an inmate

Title of bill

An act to amend the correction law, in relation to the duty to report sexual conduct by an employee with an inmate

Summary of provisions

A new Section 22-b would be added to the Correction Law creating an affirmative duty for employees of local correction departments to report any and all sexual conduct or suspected sexual conduct they have knowledge of between a department employee and an inmate. The failure to report the conduct would be a Class A misdemeanor.

The definition of employee would include persons permitted entry to a correctional facility pursuant to their duties as an employee of any governmental agency, as a volunteer or under a contractual arrangement with any governmental agency.

Reasons for support

Current law does not impose an affirmative duty on a department employee to report his or her knowledge or reasonable suspicion of any sexual conduct between an inmate and a local correction department employee.

This new section is similar to ones contained in "duty to report" statutes throughout the country holding pediatricians and teachers, among other professionals, responsible for any knowledge they have regarding abuses against children.

Local correction departments are under a duty to protect and ensure the welfare of all inmates under their care and custody. Inmates are dependent upon the departments for the fulfillment of every basic human need, including but not limited to, the provision of food, clothing, shelter, exercise, medical care, and religious needs and practices. Inmates are under a legal duty to obey all lawful orders given by a department employee.

Because of the authority that department employees wield, the Legislature in 1996 changed penal law Section 130 to provide that an inmate is incapable of consenting to sexual conduct with most Department employees. Although instances of sexual relationships between an employee and an inmate are infrequent, when they do occur, they: (1) compromise the safety and security of the institution; (2) are a potential source of grievous harm to the inmate; and (3) discredit and demoralize the overwhelming majority of department employees who are hard-working and perform their duties in a professional manner. Therefore, it is crucial that the department have the necessary means to eliminate completely all such conduct.

While DNA technology has been an important tool in the departments' arsenal to eradicate such behavior, it is not available in every instance where sexual conduct may have taken place. Therefore the departments must attempt to conduct investigations through other means, i.e., interviews with inmates and employees. The placement of an affirmative duty on all employees to report sexual conduct between an inmate and an employee of which they have knowledge, or reason to suspect, will further enhance the departments' efforts.

Furthermore, volunteers, contractors and employees of other governmental agencies are routinely permitted access to correction facilities pursuant to their duties and are given regular access to inmates. For this reason, the definition of "employee" in this statute includes them among those having a duty to report, and as persons about whom a report may be issued.

Accordingly, the Mayor urges the earliest possible favorable consideration of this proposal by the Legislature.

Legislative history

S.5640 of 2005/2006, S.335 of 2007/2008

Effective date

Sixtieth day after becoming law.