Relates to disqualification of employment for criminal history and the definition of ability to consent

Summary of provisions

Section 1 of the bill would amend the Mental Hygiene Law (MHL) to add a new section 13.40 to provide that OPWDD and authorized agencies may not hire an individual who has been convicted of certain crimes, including homicide, sex offenses, felony level assaults, endangering the welfare of a child, incompetent of physically disabled person, kidnapping, robbery, any attempt to commit one of the specified crimes, or any comparable offense in any other jurisdiction.

Section 2 of the bill would amend Penal Law § 130.05(3) to add a new paragraph (i) to provide that, for purposes of determining whether an individual can consent to sexual contact for purposes of criminal liability under Article 130 of the Penal Law, an individual with a developmental disability cannot consent if he or she is receiving services from OPWDD or an agency operated, certified, authorized or funded through OPWDD and the actor is an employee, intern, consultant, contractor or volunteer of such agency where the individual receives services.

Section 3 of the bill would provide for an immediate effective date.

Existing law

Civil Services Law § 50 provides authorization for criminal background checks for prospective State employees. Labor Law . 201-a further authorizes fingerprinting of State employees. MHL § 16.3 3 authorizes criminal background checks for prospective operators, volunteers and employees of service providers that contract with, are approved by, or are otherwise authorized to provide services, provided that the person "will have regular and substantial unsupervised or unrestricted physical contact with the clients of such provider."

Executive Law § 845-b sets forth the procedures for the conduct of criminal background checks and the rights and obligations of the

parties involved, including State agencies that conduct the background checks, employing private sector agencies and the individuals who are fingerprinted. Section 845-b provides that where the criminal history information for a subject reveals: (1) a conviction at any time for a sex offense; (2) a felony conviction within the past ten years involving violence; or (3) a conviction for endangering the welfare of an incompetent or physically disabled person pursuant to section 260.25 of the Penal Law, or any comparable offense in any 'other jurisdiction, the fingerprinting agency (OPWDD) shall deny employment, disapprove the application or direct the employing agency to do so unless it determines, in its discretion, that approval will not in any way jeopardize the health, safety or welfare of the beneficiaries of the services.

Article 23-A of the Correction Law sets forth the standard for evaluation of criminal history information. Correction Law § 752 provides that employment or licensure may not be denied to an applicant by reason of prior criminal conviction(s) unless: (1) there is a direct relationship between one or more of the criminal offenses and the specific license or employment sought, or (2) the granting of employment/license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. Correction Law § 753(1) mandates that review of the criminal history record be based on consideration of nine statutory criteria, including, among other factors, the time elapsed since the offense, the individual's age at the time of the occurrence, the seriousness of the offense, the specific duties which the individual will perform, and "[t]he public policy of the state... to encourage the licensure and employment of persons previously convicted of one or more criminal offenses."

Article 130 of the Penal Law governs criminal liability for sex offenses.

Legislative history

This is a new bill.

Statement in support

Protecting the safety and welfare of individuals receiving services in the OPWDD system must be the highest priority. This bill would heighten protections for individuals receiving services in the OPWDD system and ensure that individuals employed in the system are of the highest caliber by prohibiting the employment of persons who have been convicted of certain violent and serious crimes. While most criminal convictions would be evaluated under the standards set forth in the Executive Law and the Corrections Law, certain individuals who have committed the most heinous of crimes would be ineligible for employment. This would include convictions for offenses such as homicides, sex crimes, arsons, and sexual performance by a child, and felony level assaults, robberies, kidnappings and endangering the welfare of a child, vulnerable elderly person or incompetent person. All other criminal convictions will continue to be reviewed in accordance with the standard set forth in Correction Law Article 23-A and Executive Law § 845-b.

This bill would also enhance the safety of individuals who receive services from OPWDD or authorized agencies by making it clear that such individuals are legally incapable of consenting to sexual contact with employees or other similar individuals who provide services to them. Under Penal Law § 130.05(1), lack of consent is an element of all sex offenses defined in Penal Law Article 130. Recognizing that consent is not-truly voluntary when a perpetrator is in a special position of authority over a victim, the Penal Law §130.05(3) thereafter provides that certain individuals are legally incapable of consenting to sexual contact, including certain . individuals who are incarcerated and in the custody of the Department of Corrections and Community Supervision (DOCCS), or in the care of the Office of Children and Family Services (OCFS). There is no similar provision that an individual with a developmental disability who is receiving services in the OPWDD system is incapable of consenting to sexual contact with employees of OPWDD or the agency in which they receive services, even though these employees are in the same special positions of authority as DOCCS or OCFS employees.

While such contact is considered sexual abuse under OPWDD regulations, there is no presumption in the Penal Law that such contact is criminal. Making this amendment will send a clear message to employees, interns, consultants, contractors or volunteers of such agencies that engaging in sexual contact with individuals who are receiving services will not be tolerated.

It also will ensure that such behavior will be effectively punished. A review of cases involving sexual assaults by employees against consumers receiving services in the OPWDD system has shown that in a majority of cases law enforcement officials have been unable to prosecute alleged offenders. Generally, law enforcement took action only when there were eyewitnesses to the crime or physical evidence substantiating the use of force. In addition, in many cases, consumers initially denied the abuse out of fear that something would happen to the person on whom they relied for their daily care. This bill would appropriately give prosecutors the ability to establish lack of consent based on the perpetrators' relationship of authority over the consumer, just as is done for similarly situated victims in the OCFS and DOCCS systems. As a result, individuals receiving services in the OPWDD system would receive the highest level of protection from sexual advances by individuals employed by OPWDD or authorized agencies, and staff who engage in this criminal behavior would be appropriately subject to criminal penalties.

Budget implications

This bill would have no fiscal implications.

Effective date

This bill would take effect immediately.