Relates to sexual conduct between a state employee and an inmate

Summary of provisions

Section 1 of the bill would amend PL § 130.05(3)(e) to expand the definition of "employee" to include any employee of DOCCS or the Office of Mental Health (OMH) who works in a state correctional facility in which the victim is an inmate at the time of the offense, any employee of DOCCS who supervises persons released on community supervision, and supervises the victim at the time of the offense.

Section 2 of the bill would amend PL § 130.05(g) to expand the definition of employee to impose criminal liability upon any employee of OCFS who works in an OCFS operated residential facility and engages in a sexual relationship with a person committed to or placed with OCFS and in residential care.

Section 3 of the bill would amend PL § 130.10(4) to make marriage a defense for any prosecution under Article 130 of the Penal Law in which the victim's lack of consent is based solely on the fact that the defendant is an employee and the victim is an inmate, supervisee, or a resident of an OCFS-operated residential facility.

Section 4 of the bill would provide that the bill would become effective on the first day of November after the bill becomes law, and would apply to offenses occurring on or after that date.

Existing law

Under current PL § 130.05, it is an element of every sex offense defined in Article 130 of the Penal Law that the sexual act was committed without the consent of the victim. PL § 130.05(3) lists groups of persons who are incapable of consent. The list includes persons committed to the care and custody of DOCCS, where the perpetrator is an employee, not married to the victim, who knows or reasonably should know that the victim is committed to the custody and care of DOCCS. The term "employee" is defined in § PL 130.05(3)(e) as a DOCCS employee who performs professional duties in a state correctional facility consisting of providing custody, medical or mental health services, counseling services, education programs, or vocational training for inmates. For volunteers, outside contractors and other persons providing direct services to inmates pursuant to a written agreement, the inability of an inmate to consent to a sexual relationship is limited to those persons who provide direct services to inmates in the correctional facility in which the victim is confined at the time of the offense. See PL § 130(3)(e)(iv). For the Office of Children and Family Services, including residential facilities, the term "employee" is defined in the same manner as a DOCCS employee who provides professional duties. PL § 130(3)(g).

At least one court has held that PL § 130.05(3)(e) does not cover all DOCCS employees working in correctional facilities, but only those with a certain level of authority and responsibility over inmate security.

Prior legislative history

A similar bill was submitted to the Legislature in 2010, but not introduced.

A similar bill was introduced in the Senate in 2003-2004 (S.6441) and referred to Codes. The same bill was again introduced in the 2005-2006 session (S.4032), was passed by the Senate, delivered to the Assembly, and referred to Assembly Codes.

In the 2007-2008 session, a related bill (A.4332-A) adding volunteers and contract employees to the definition of "employee" was introduced at the request of the City of New York, substituted by S.5012-A, and signed into law as Chapter 335 of the Laws of 2007.

Statement in support

DOCCS has for many years sought to send a clear message to its employees that it will not tolerate any employee engaging in sexual activity with an inmate, and has made several efforts to enact legislation in the area. The existing statute contains ambiguities and some employees of both DOCCS and other State agencies have escaped criminal responsibility for conduct that included a sexual relationship with an inmate. For example, multiple charges were recently dismissed by the court in three cases in St. Lawrence County after the court found that evidence had not been presented to the Grand Jury that the defendants met the statutory definition of "employee." In one of the decisions, the court wrote that the prosecution had not shown that the defendant, who had been indicted for rape in the third degree, criminal sexual act in the third

degree, promoting prison contraband in the first degree for giving the inmate a folding knife, and two counts of official misconduct, had the "level of authority or responsibility with respect to inmate security that is contemplated by the statute defining situations in which an inmate is helpless." In another decision, the court wrote "it is axiomatic that the Penal Law is to be read according to the fair meaning of its terms. The statute does not declare that sexual conduct between any employee of the department of corrections sic and an inmate is illegal."

This bill would amend the current lack of consent provisions and clarify that criminal liability is imposed on any DOCCS employee who works in a State correctional facility and engages in sexual conduct with an inmate confined in the facility, any employee who supervises a person released on community supervision who engages in sexual conduct with a person they supervise, and any employee of OMH who works in a State correctional facility, and engages in sexual conduct with an inmate confined there. Under this bill, criminal liability would attach regardless of an individual employee's job title. The amendment is necessary because the potential for abuse is not just limited to those employees who provide custody, medical and mental health services to the inmate. Any DOCCS employee or outside employee assigned to a facility has the potential to misuse his or her official position to demand sexual favors. For example, such a person could attempt to smuggle into the institution drugs or other contraband that are highly valued by the inmate population, to induce an inmate to enter into a sexual relationship with the transgressing employee. The same reasoning applies to DOCCS employees who supervise persons released to community supervision with respect to their supervisees, and to employees of OCFS with respect to individuals committed to OCFS care and custody and in residential care. Many OCFS residents were victims of child abuse, including sexual abuse, prior to being placed or committed to OCFS custody. This bill sends the message that further victimization of these youth by any OCFS employee is absolutely unacceptable.

This bill also recognizes that marriage between the defendant and the victim at the time of the act is an appropriate defense to such crimes. Current PL, 130.05(e) and (f) make lack of marriage to the victim an element of a crime that must be proved by a prosecutor. The bill would remove this language from those sections, and instead make marriage a defense to be raised by the defendant. This change is appropriate for several reasons. Under PL, § 130.10(4), marriage is a defense in cases based solely on lack of consent to the sexual conduct where the victim is a client or a patient and the defendant is a health care provider. There is no reason to treat DOCCS or OCFS employees differently from health care providers. Moreover, it is the defendant, not DOCCS or OCFS, who is most likely to have evidence of his or her own marriage and should be the one obligated to raise the defense. Final1y, because DOCCS policy requires disclosure by employees of any relationships or dealings with current or former inmates, it is extremely unlikely that a DOCCS employee would be supervising his or her spouse in the community, or working in the same correctional facility housing his or her spouse. It is, therefore, unduly burdensome to require prosecutors to prove that a

defendant is not married to the victim where the defense has not even been raised.

Budget implications

This bill has no budget implications.

Effective date

The bill would become effective on the first day of November after the bill becomes law, and would apply to offenses occurring on or after that date.