STATE OF NEW YORK ________________________________________________________________________ 4968 2019-2020 Regular Sessions IN SENATE April 2, 2019 ___________ Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, the criminal procedure law, the family court act, and the domestic relations law, in relation to sex offenses The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 1 of section 130.00 of the penal law is 2 amended to read as follows: 3 1. "[~~Sexual intercourse~~] Vaginal sexual contact" [~~has its ordinary~~ 4 ~~meaning and occurs upon any penetration, however slight~~] means conduct 5 between persons consisting of contact between the penis and the vagina 6 or vulva. 7 § 2. Section 130.25 of the penal law, as amended by chapter 1 of the 8 laws of 2000, is amended to read as follows: 9 § 130.25 Rape in the third degree. 10 A person is guilty of rape in the third degree when: 11 1. He or she engages in [~~sexual intercourse~~] vaginal sexual contact 12 with another person who is incapable of consent by reason of some factor 13 other than being less than seventeen years old; 14 2. Being twenty-one years old or more, he or she engages in [~~sexual~~ 15 ~~intercourse~~] vaginal sexual contact with another person less than seven- 16 teen years old; or 17 3. He or she engages in [~~sexual intercourse~~] vaginal sexual contact 18 with another person without such person's consent where such lack of 19 consent is by reason of some factor other than incapacity to consent. 20 Rape in the third degree is a class E felony. 21 § 3. Section 130.30 of the penal law, as amended by chapter 1 of the 22 laws of 2000, is amended to read as follows: 23 § 130.30 Rape in the second degree. 24 A person is guilty of rape in the second degree when: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01481-04-9

S. 4968 2 1 1. being eighteen years old or more, he or she engages in [~~sexual~~ 2 ~~intercourse~~] vaginal sexual contact with another person less than 3 fifteen years old; or 4 2. he or she engages in [~~sexual intercourse~~] vaginal sexual contact 5 with another person who is incapable of consent by reason of being 6 mentally disabled or mentally incapacitated. 7 It shall be an affirmative defense to the crime of rape in the second 8 degree as defined in subdivision one of this section that the defendant 9 was less than four years older than the victim at the time of the act. 10 Rape in the second degree is a class D felony. 11 § 4. Section 130.35 of the penal law, as amended by chapter 1 of the 12 laws of 2000, is amended to read as follows: 13 § 130.35 Rape in the first degree. 14 A person is guilty of rape in the first degree when he or she engages 15 in [~~sexual intercourse~~] vaginal sexual contact with another person: 16 1. By forcible compulsion; or 17 2. Who is incapable of consent by reason of being physically helpless; 18 or 19 3. Who is less than eleven years old; or 20 4. Who is less than thirteen years old and the actor is eighteen years 21 old or more. 22 Rape in the first degree is a class B felony. 23 § 5. Subdivision 1 of section 210.16 of the criminal procedure law, as 24 added by chapter 571 of the laws of 2007, is amended to read as follows: 25 1. (a) In a case where an indictment or a superior court information 26 has been filed with a superior court which charges the defendant with a 27 felony offense enumerated in any section of article one hundred thirty 28 of the penal law where an act of "[~~sexual intercourse~~] vaginal sexual 29 contact", "oral sexual conduct" or "anal sexual conduct," as those terms 30 are defined in section 130.00 of the penal law, is required as an essen- 31 tial element for the commission thereof, the court shall, upon a request 32 of the victim within six months of the date of the crimes charged, order 33 that the defendant submit to human immunodeficiency virus (HIV) related 34 testing. Testing of a defendant shall be ordered when the result would 35 provide medical benefit to the victim or a psychological benefit to the 36 victim. Medical benefit shall be found when the following elements are 37 satisfied: (i) a decision is pending about beginning, continuing, or 38 discontinuing a medical intervention for the victim; and (ii) the result 39 of an HIV test of the accused could affect that decision, and could 40 provide relevant information beyond that which would be provided by an 41 HIV test of the victim. If testing the defendant would provide medical 42 benefit to the victim or a psychological benefit to the victim, then the 43 testing is to be conducted by a state, county, or local public health 44 officer designated by the order. Test results, which shall not be 45 disclosed to the court, shall be communicated to the defendant and the 46 victim named in the order in accordance with the provisions of section 47 twenty-seven hundred eighty-five-a of the public health law. 48 (b) For the purposes of this section, the terms "victim" and "appli- 49 cant" mean the person with whom the defendant is charged to have engaged 50 in an act of "[~~sexual intercourse~~] vaginal sexual contact", "oral sexual 51 conduct" or "anal sexual conduct", as those terms are defined in section 52 130.00 of the penal law, where such conduct with such victim was the 53 basis for charging the defendant with an offense specified in paragraph 54 (a) of this subdivision.

S. 4968 3 1 § 6. Subdivision 1 of section 390.15 of the criminal procedure law, as 2 amended by chapter 264 of the laws of 2003, is amended to read as 3 follows: 4 1. (a) In any case where the defendant is convicted of a felony 5 offense enumerated in any section of article one hundred thirty of the 6 penal law, or any subdivision of section 130.20 of such law, where an 7 act of "[~~sexual intercourse~~] vaginal sexual contact", "oral sexual 8 conduct" or "anal sexual conduct," as those terms are defined in section 9 130.00 of the penal law, is required as an essential element for the 10 commission thereof, the court must, upon a request of the victim, order 11 that the defendant submit to human immunodeficiency (HIV) related test- 12 ing. The testing is to be conducted by a state, county, or local public 13 health officer designated by the order. Test results, which shall not be 14 disclosed to the court, shall be communicated to the defendant and the 15 victim named in the order in accordance with the provisions of section 16 twenty-seven hundred eighty-five-a of the public health law, but such 17 results and disclosure need not be completed prior to the imposition of 18 sentence. 19 (b) For the purposes of this section, the terms "defendant", 20 "conviction" and "sentence" mean and include, respectively, an "eligible 21 youth," a "youthful offender finding" and a "youthful offender sentence" 22 as those terms are defined in section 720.10 of this chapter. The term 23 "victim" means the person with whom the defendant engaged in an act of 24 "[~~sexual intercourse~~] vaginal sexual contact", "oral sexual conduct" or 25 "anal sexual conduct", as those terms are defined in section 130.00 of 26 the penal law, where such conduct with such victim was the basis for the 27 defendant's conviction of an offense specified in paragraph (a) of this 28 subdivision. 29 § 7. Subdivision 1 of section 347.1 of the family court act, as 30 amended by chapter 264 of the laws of 2003, is amended to read as 31 follows: 32 1. (a) In any proceeding where the respondent is found pursuant to 33 section 345.1 or 346.1 of this article, to have committed a felony 34 offense enumerated in any section of article one hundred thirty of the 35 penal law, or any subdivision of section 130.20 of such law, for which 36 an act of "[~~sexual intercourse~~] vaginal sexual contact", "oral sexual 37 conduct" or "anal sexual conduct", as those terms are defined in section 38 130.00 of the penal law, is required as an essential element for the 39 commission thereof, the court must, upon a request of the victim, order 40 that the respondent submit to human immunodeficiency (HIV) related test- 41 ing. The testing is to be conducted by a state, county, or local public 42 health officer designated by the order. Test results, which shall not be 43 disclosed to the court, shall be communicated to the respondent and the 44 victim named in the order in accordance with the provisions of section 45 twenty-seven hundred eighty-five-a of the public health law. 46 (b) For the purposes of this section, the term "victim" means the 47 person with whom the respondent engaged in an act of "[~~sexual inter-~~ 48 ~~course~~] vaginal sexual contact", "oral sexual conduct" or "anal sexual 49 conduct", as those terms are defined in section 130.00 of the penal law, 50 where such conduct with such victim was the basis for the court's find- 51 ing that the respondent committed acts constituting one or more of the 52 offenses specified in paragraph (a) of this subdivision. 53 § 8. Subdivision (a) of section 130.16 of the penal law, as amended by 54 chapter 264 of the laws of 2003, is amended to read as follows: 55 (a) Establish that an attempt was made to engage the victim in [~~sexual~~ 56 ~~intercourse~~] vaginal sexual contact, oral sexual conduct, anal sexual

S. 4968 4 1 conduct, or sexual contact, as the case may be, at the time of the 2 occurrence; and 3 § 9. Subdivision 1 of section 130.20 of the penal law, as amended by 4 chapter 1 of the laws of 2000, is amended to read as follows: 5 1. He or she engages in [~~sexual intercourse~~] vaginal sexual contact 6 with another person without such person's consent; or 7 § 10. Paragraphs (a) and (b) of subdivision 1 of section 130.75 of the 8 penal law, as amended by chapter 264 of the laws of 2003, are amended to 9 read as follows: 10 (a) he or she engages in two or more acts of sexual conduct, which 11 includes at least one act of [~~sexual intercourse~~] vaginal sexual 12 contact, oral sexual conduct, anal sexual conduct or aggravated sexual 13 contact, with a child less than eleven years old; or 14 (b) he or she, being eighteen years old or more, engages in two or 15 more acts of sexual conduct, which include at least one act of [~~sexual~~ 16 ~~intercourse~~] vaginal sexual contact, oral sexual conduct, anal sexual 17 conduct or aggravated sexual contact, with a child less than thirteen 18 years old. 19 § 11. Subdivision 1 of section 235.00 of the penal law, as amended by 20 chapter 264 of the laws of 2003, is amended to read as follows: 21 1. "Obscene." Any material or performance is "obscene" if (a) the 22 average person, applying contemporary community standards, would find 23 that considered as a whole, its predominant appeal is to the prurient 24 interest in sex, and (b) it depicts or describes in a patently offensive 25 manner, actual or simulated: [~~sexual intercourse~~] vaginal sexual 26 contact, criminal sexual act, sexual bestiality, masturbation, sadism, 27 masochism, excretion or lewd exhibition of the genitals, and (c) consid- 28 ered as a whole, it lacks serious literary, artistic, political, and 29 scientific value. Predominant appeal shall be judged with reference to 30 ordinary adults unless it appears from the character of the material or 31 the circumstances of its dissemination to be designed for children or 32 other [~~specially~~] especially susceptible audience. 33 § 12. Subdivision 2 of section 235.22 of the penal law, as amended by 34 chapter 264 of the laws of 2003, is amended to read as follows: 35 2. by means of such communication he importunes, invites or induces a 36 minor to engage in [~~sexual intercourse~~] vaginal sexual contact, oral 37 sexual conduct or anal sexual conduct, or sexual contact with him, or to 38 engage in a sexual performance, obscene sexual performance, or sexual 39 conduct for his benefit. 40 § 13. Section 255.25 of the penal law, as amended by chapter 320 of 41 the laws of 2006, is amended to read as follows: 42 § 255.25 Incest in the third degree. 43 A person is guilty of incest in the third degree when he or she 44 marries or engages in [~~sexual intercourse~~] vaginal sexual contact, oral 45 sexual conduct or anal sexual conduct with a person whom he or she knows 46 to be related to him or her, whether through marriage or not, as an 47 ancestor, descendant, brother or sister of either the whole or the half 48 blood, uncle, aunt, nephew or niece. 49 Incest in the third degree is a class E felony. 50 § 14. Subdivision 3 of section 263.00 of the penal law, as amended by 51 chapter 264 of the laws of 2003, is amended to read as follows: 52 3. "Sexual conduct" means actual or simulated [~~sexual intercourse~~] 53 vaginal sexual contact, oral sexual conduct, anal sexual conduct, sexual 54 bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of 55 the genitals.

S. 4968 5 1 § 15. Subdivision 3 of section 60.42 of the criminal procedure law, as 2 amended by chapter 264 of the laws of 2003, is amended to read as 3 follows: 4 3. rebuts evidence introduced by the people of the victim's failure to 5 engage in [~~sexual intercourse~~] vaginal sexual contact, oral sexual 6 conduct, anal sexual conduct or sexual contact during a given period of 7 time; or 8 § 16. Subdivision 3 of section 344.4 of the family court act, as 9 amended by chapter 264 of the laws of 2003, is amended to read as 10 follows: 11 3. rebuts evidence introduced by the presentment agency of the 12 victim's failure to engage in [~~sexual intercourse~~] vaginal sexual 13 contact, oral sexual conduct, anal sexual conduct or sexual contact 14 during a given period of time; or 15 § 17. Subdivision 4 of section 170 of the domestic relations law, as 16 amended by chapter 264 of the laws of 2003, is amended to read as 17 follows: 18 (4) The commission of an act of adultery, provided that adultery for 19 the purposes of articles ten, eleven, and eleven-A of this chapter, is 20 hereby defined as the commission of an act of [~~sexual intercourse~~] vagi- 21 nal sexual contact, oral sexual conduct or anal sexual conduct, volun- 22 tarily performed by the defendant, with a person other than the plain- 23 tiff after the marriage of plaintiff and defendant. Oral sexual conduct 24 and anal sexual conduct include, but are not limited to, sexual conduct 25 as defined in subdivision two of section 130.00 and subdivision three of 26 section 130.20 of the penal law. 27 § 18. Subdivision 4 of section 200 of the domestic relations law, as 28 amended by chapter 264 of the laws of 2003, is amended to read as 29 follows: 30 4. The commission of an act of adultery by the defendant; except where 31 such offense is committed by the procurement or with the connivance of 32 the plaintiff or where there is voluntary cohabitation of the parties 33 with the knowledge of the offense or where action was not commenced 34 within five years after the discovery by the plaintiff of the offense 35 charged or where the plaintiff has also been guilty of adultery under 36 such circumstances that the defendant would have been entitled, if inno- 37 cent, to a divorce, provided that adultery for the purposes of this 38 subdivision is hereby defined as the commission of an act of [~~sexual~~ 39 ~~intercourse~~] vaginal sexual contact, oral sexual conduct or anal sexual 40 conduct, voluntarily performed by the defendant, with a person other 41 than the plaintiff after the marriage of plaintiff and defendant. Oral 42 sexual conduct and anal sexual conduct include, but are not limited to, 43 sexual conduct as defined in subdivision two of section 130.00 and 44 subdivision three of section 130.20 of the penal law. 45 § 19. This act shall take effect on the ninetieth day after it shall 46 have become a law and shall apply to any offense on or after such effec- 47 tive date.

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