Eliminates exemption of married persons from the definition of the commission of "sexual contact" for purposes of sex offenses and endangering welfare of elderly

Title of bill

An act to amend the penal law, in relation to the definition of sexual contact for the purposes of sex offenses and endangering the welfare of a vulnerable elderly person

Purpose of bill

This measure eliminates the marital exception in the penal law provisions relating to certain sex offenses including sexual abuse in the second and third degrees and endangering the welfare of the elderly.

Summary of provisions of bill

Removes the exemptions for married persons from the definition of the commission of "sexual contact" in subdivision 3 of section 130 of the penal law and subdivision 2 of section 260.31 of the penal law.

Justification

The penal law offenses of sexual abuse in the second and third degrees criminalize subjecting another to non-consensual sexual contact. However, the current definition of sexual contact in PL 130.50 exempts such non-consensual contact between married persons thereby exempting married persons from the crime, even where there is forced compulsion or non-consensual contact. See PL section 130.65 and 130.55.

In 2009, New York enacted L. 2009 c.476, to add the crimes of sexual abuse in the third and second degrees to those family offenses for which a victim may obtain an order of protection in family court. This law was passed recognizing that sexual violence crimes are perpetrated by abusers against their intimate partners as part of the dynamic of power and control, and that such crimes constitute domestic violence. However, the marital exception in the penal law would preclude the ability of victims of domestic violence who are married to their abuser from availing of the full protections of our domestic violence laws.

Furthermore, PL section 26032 and 260.34 penalize non-consensual sexual contact by a caregiver against a vulnerable elderly person. A caregiver may be a spouse. However, subdivision 2 of section 260.31 of the penal law exempts such non-consensual sexual contact between married couples.

In 1984, the Court of Appeals held that there was no rational basis for distinguishing between marital rape and non-marital rape, and therefore declared the marital exception for rape in the first degree and sodomy in the first degree unconstitutional. See people v. Liberto, 64 N.Y.2d 152,485 N.Y.S.2d 207,474 N.E.2d 567(1984). In 1992, the Appellate Division for the Second Department extended the holding in Liberto to sexual abuse in the first degree. The court ruled that sexual abuse in the first degree is a criminal act regardless of the relationship between the actor and the victim. See People v. Orvath, 183 A.D.2d 915,584 N.Y.S.2d 148 (1992).

It is well established that spouses have no right to commit crimes in the name of conjugal visits or familial relations. This measure would remove the marital exception in our current penal law, thereby enabling married couples to avail equal and full protection of New York's penal and domestic violence laws.

Legislative history

New bill, 2010 but similar to A.9938 '10 - Passed Assembly.

Fiscal implications for state and local governments

None. EFFECTIVE DATE : Immediately.