Relates to the definition of designated offender

Section three provides the effective date.

Justification

Pursuant to section 995-c (3)(a) of the Executive Law, a designated offender convicted and sentenced for a crime is required to provide a sample appropriate for DNA testing to determine identification characteristics specific to such person and to be included in the state's DNA identification index. Section 995(7) of the Executive Law defines a designated offender to be any person convicted of a felony or any misdemeanor defined in the penal law other than a person who, as a first time offense, knowingly and unlawfully possesses marijuana in a public place and the marijuana is burning or open to public view.

New York has been a leader in enacting laws that recognize that sexually exploited persons should be treated as victims and not as criminals, including most recently by passing and having signed into law the comprehensive Trafficking Victims Protection and Justice Act (Chapter 368 of the Laws of 2015) and legislation to require courts to waive payment by sex trafficking victims of a mandatory surcharge, crime victim assistance fee and DNA databank fee where the victim is convicted of a misdemeanor or a violation (Ch. 385 of the Laws of 2014 and Ch. 426 of the Laws of 2015).

As we have learned, a young woman may be forced to engage in prostitution by her sex trafficker. Although she faces conviction, she may not be prepared, for a variety of reasons, to seek or receive services, primarily because she is still under the control of her exploiter and does not believe she can escape her situation. Accordingly, she may decide, for example, to plead guilty to a misdemeanor offense of loitering for the purpose of engaging in prostitution to be able to return to the streets.

This legislation will exclude from the definition of a designated offender a person convicted of prostitution or loitering for the purpose of engaging in prostitution or a person whose participation in the offense the court determines was a result of having been a sex trafficking victim under federal or New York state trafficking law. By stating that these victims are not designated offenders, these victims will not be required to provide DNA samples to be included in the state DNA identification database.

We have been steadfast in our commitment to the principle that a person who is commercially sexually exploited is a victim, and must not be treated as a criminal. However, by continuing to require sex trafficking victims to provide DNA samples following conviction, we run afoul of that commitment and we treat these victims as criminals. These victims have entered our criminal justice system by virtue of their enslavement at the hands of their traffickers. The basic human rights of sex trafficking victims have already been violated by their traffickers; we should not compound the further violation of their rights by requiring a DNA sample.

Legislative history

New bill.

Fiscal implications

None.

Effective date

This act shall take effect immediately.