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

BILL NUMBER:S5466

Title of bill

An act to amend the penal law, in relation to disqualification of employment for certain criminal history information and deeming an individual with a developmental disability is incapable of giving consent

Purpose of bill

This bill would provide that an individual with a developmental disability who is receiving services from OPWDD or an agency operated, certified, authorized or funded through OPWDD is incapable of consenting to sexual contact with an employee, intern, consultant, contractor or volunteer of such office or agency where the individual receives services.

Summary of provisions

Section 1 of the bill would amend Penal Law § 130.05(3) to add a new paragraph (j) 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 2 of the bill would provide for an immediate effective date.

Existing law

Section 130.05 (3)(i) provides that a resident or inpatient of a residential facility operated, licensed or certified by OMH, OPWDD or OASAS is incapable of consenting to sexual conduct by an employee.

Legislative history

This is a new bill.

Justification:

This bill would enhance the safety of individuals who receive services from programs operated, licensed or funded by OPWDD 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). In 2012 the Governor signed into a law a provision that provides that residents or in-patients of a residential facility operated, licensed or certified

by OMH, OPWDD or OASAS are incapable of consenting to a sexual contact if the actor is an employee, intern, consultant or contractor of the facility and not married to such resident or inpatient. however, the Provision only applies to residential and in-patient facilities. This bill would create a new provision providing that a person with developmental disabilities receiving services from a program operated, certified or authorized by OPWDD is incapable of consenting to sexual conduct. This provision expands upon what was passed last year to encompass all services in order to ensure the safety of our most vulnerable population.

Budget implications

This bill would have no fiscal implications.

Effective date

This bill would take effect immediately.