Relates to the definition of term "sexual intercourse" as such term applies to sex offenses and establishes the crimes of anal rape and oral rape; repealer

Summary of provisions

Section 1 redefines sexual intercourse as any contact between persons that consists of contact between the penis and the vagina or vulva.

Sections 2 through 4 amend penal law sections 130.40, 130.45 and 130.50 "criminal sexual act in the third degree", "criminal sexual act in the second degree" and "criminal sexual act in the first degree" to exclude any reference to "oral sexual conduct" and redefine these sections as more specialized offenses of "anal rape in the third degree", "anal rape in the second degree," and "anal rape in the first degree", respectively.

Section 5 adds a new penal law section 130.37, "oral rape in the third degree". A person is guilty of oral rape in the third degree, a class E felony, when he or she engages in oral sexual conduct with a person who is incapable of consent for a reason other than being less than 17; or when a person 21 or older engages in oral sexual conduct with a person less than 17; or when a person engages in oral sexual conduct without another person's consent where the lack of consent is by reason of some factor other than the incapacity to consent.

Section 6 adds a new penal law section 130.38, "oral rape in the second degree". A person is guilty of oral rape in the second degree, a class D felony, when he or she engages in oral sexual conduct with a person less than 15 years old or engages in oral sexual conduct with another person who is incapable of consent because they are mentally disabled or mentally incapacitated. The fact that the victim was less than 4 years older than the victim at the time of the act shall constitute an affirmative defense.

Section 7 adds a new penal law section 130.39, "oral rape in the first degree". A person is guilty of oral rape in the second degree, a class B felony, when he or she engages in oral sexual conduct with a person by forcible compulsion or who is incapable of consent due to being physically helpless; or who is less than 11 years old; or who is less than 13 years old and the actor is 18 years old or older.

Sections 8 through 47 amend various sections of the penal law, criminal procedure law, the civil practice law and rules and the family court act to make technical conforming changes to remove references made to "oral sexual conduct" and "criminal sexual act" and replace them with corresponding references to the appropriate anal rape and oral rape provisions.

Section 48 amends subparagraph (i) of Paragraph (a) of subdivision 3 of section 168-a of the correction law to include penal law sections 130.37 and 130.38.

Section 49 amends subparagraph (i) of paragraph (a) of subdivision 3 of section 168-a of the correction law to include Penal Law Section 130.39.

Section 50 provides the effective date.

Justification

On March 28, 2012, a Justice of the New York State Supreme Court declared a mistrial on the rape charge against former New York City Police Officer Michael Pena. Pena was convicted of several other charges for holding a school teacher at gunpoint, threatening her life and committing criminal sexual acts against her. Pena was not convicted of rape despite overwhelming evidence of forcible, non-consensual sexual contact with the young school teacher who was on her way to her first day of school at her first teaching job. It is galling that in the face of evidence of the defendant's semen in the victim's underwear, redness to her genitals, eyewitness testimony and the victim's own account of the pain of the attack, Pena was not convicted of rape at trial.

Despite this overwhelming evidence of force, bodily fluids and injury, three jurors voted not to convict because an element of rape as currently defined in state statute requires evidence of penetration by the penis into the vagina. These jurors were not able to convict Mr. Pena of the top charge of rape because they were not convinced such penetration of the vagina took place. This bill eliminates the requirement of penetration in a vaginal rape and makes the elements of Rape equivalent to those of criminal sexual act which only requires contact of the genitals to the month or anus and force to complete the crime.

This bill has been introduced at the recommendation of the District Attorneys Association of the State of New York. Specifically, they recommend that Article 130 of the Penal Law should be amended to address the inconsistent requirement that penetration be proved as an element of Rape, while mere contact is sufficient to prove the current crime of Criminal Sexual Act (the crime formerly known as "Sodomy"). The District Attorneys Association states that "while forcible, non-consensual contact between a penis and the mouth or anus is currently a class B violent felony; the same contact with a woman's genitalia constitutes only a D felony. There is no valid reason why one is worthy of a potential 25-year sentence, while the other only merits a maximum of 7 years." By redefining sexual intercourse-as an element of the crime of Rape- as any contact between the penis and vagina or vulva, rather than the current definition, which requires

penetration, this bill would eliminate the disparity in possible punishment between Rape and other crimes, and provide equal protection against forcible sexual attack to all intimate parts of a victim's body.

Further, the bill addresses another sensitive and often emotional issue for victims of sexual assault-that some of the current nomenclature of the penal law does not clearly describe the true nature of the violence suffered by victims. In the Pena Case, in addition to rape, the victim suffered a sexual assault that is defined as a "Criminal Sexual Act" under the current law. Although the perpetrator was convicted of this crime, because the term "Criminal Sexual Act" is non-descriptive, the victim's status as a victim of severe sexual assault was questioned. To assure the victim's justice, these acts of sexual assault must be described in a manner that will provide juries, and the public, a better understanding of the true nature of these crimes. Thus, this bill amends the penal law such that the acts currently prohibited by the crimes of Criminal Sexual Acts, in the first, second and third degrees are renamed as Anal Rape and Oral Rape, in the first, second and third degrees, and separates such into new separate sections of the penal law to address each of these horrific acts.

By providing these new sections of the law which separately define each of these acts, the bill ensures that if more than one of these acts occur during the course of sexual assault, each act is treated as distinct from the other(s). The amendment is significant because it assures that a convicted perpetrator can be held accountable with the potential of consecutive sentences for each crime committed during a sexual assault. Such a concern was raised by the recent Court of Appeals decision in People v. Alonzo, 16 N.Y.3d 267, which held that the legislative intent to provide for distinct sentences for separate acts committed during the commission of a criminal event could be best evidenced by establishing separate statutes with distinct definitions. To that end, and rejecting proposals to include all acts of sexual assault under the definition of Rape, this bill provides separate statutes for each of these criminal acts. Rape, Anal Rape, and Oral Rape will be stand alone sections of the penal law and make clear to the courts that the intent of the Legislature is to establish these acts as separate crimes, so that each crime is eligible, when warranted, for the more stringent sentence of consecutive prison terms upon conviction.

By unifying the standard of proof for all sexual contact constituting a severe sexual assault, and by distinctly redefining "Criminal Sexual Conduct" as Anal Rape and Oral Rape, the Rape Victims Equality Act would give equal protection to women and all victims of sexual assault, while assuring that the courts will have the authority to appropriately sentence sex offenders.

Legislative history

New Bill.

Fiscal implications

None to the state.

Effective date

This act shall take effect immediately; provided that section fourteen of this act shall take effect on the same date and in the same manner as section 27 of chapter 1 of the laws of 2013, takes effect.