S 4404: Establishes incapacity to consent when a person is a witness to or subject of an investigation under certain circumstances.

  
  STATE OF NEW YORK ________________________________________________________________________ 4404 2025-2026 Regular Sessions  IN SENATE February 4, 2025 ___________ Introduced by Sen. MAY -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to establishing incapacity to consent when a person is a witness to or subject of an investigation under certain circumstances The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraphs (j) and (k) of subdivision 3 of section 130.05 2 of the penal law, paragraph (j) as added by section 1 of part JJ of 3 chapter 55 of the laws of 2018, and paragraph (k) as added by chapter 4 503 of the laws of 2024, are amended and a new paragraph (l) is added to 5 read as follows: 6 (j) detained or otherwise in the custody of a police officer, peace 7 officer, or other law enforcement official and the actor is a police 8 officer, peace officer or other law enforcement official who either: (i) 9 is detaining or maintaining custody of such person; or (ii) knows, or 10 reasonably should know, that at the time of the offense, such person was 11 detained or in custody[.]; or 12 (k) under the supervision of a local probation department, pursuant to 13 section two hundred seventy-two of the correction law, or another local 14 department or agency which fulfills a similar function and the actor is 15 an employee who knows or reasonably should know that such person is 16 committed to the supervision of a local probation department. For 17 purposes of this paragraph, "employee" means an employee of such local 18 probation department or agency who, as part of his or her employment, 19 supervises the victim at the time of the offense or has supervised the 20 victim and the victim is still under supervision of a local probation 21 department or agency at the time of the offense[.]; or 22 (l) a witness to or victim of an incident under investigation by a 23 police officer, peace officer or other law enforcement official, or a 24 suspect or person of interest in such an investigation, and the actor is EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08589-01-5 
 S. 4404 2 1 a police officer, peace officer or other law enforcement official who 2 either: (i) is participating in the investigation of such incident; or 3 (ii) knows, or reasonably should know, that at the time of the offense, 4 such person was a witness, victim, suspect, or person of interest in 5 such investigation. Notwithstanding the provisions of this paragraph, a 6 witness to, victim, suspect, or person of interest in an incident under 7 investigation by a police officer, peace officer, or other law enforce- 8 ment official shall not be deemed incapable of consent where the actor 9 and such witness, victim, suspect, or person of interest had engaged in 10 a sexual relationship prior to the commencement of such investigation. 11 § 2. Subdivision 4 of section 130.10 of the penal law, as amended by 12 section 2 of part JJ of chapter 55 of the laws of 2018, is amended to 13 read as follows: 14 4. In any prosecution under this article in which the victim's lack of 15 consent is based solely on [his or her] their incapacity to consent 16 because [he or she] such victim was less than seventeen years old, 17 mentally disabled, a client or patient and the actor is a health care 18 provider, detained or otherwise in custody of law enforcement under the 19 circumstances described in paragraph (j) of subdivision three of section 20 130.05 of this article, a witness to or subject of an investigation 21 under the circumstances described in paragraph (l) of subdivision three 22 of section 130.05 of this article, or committed to the care and custody 23 or supervision of the state department of corrections and community 24 supervision or a hospital and the actor is an employee, it shall be a 25 defense that the defendant was married to the victim as defined in 26 subdivision four of section 130.00 of this article. 27 § 3. This act shall take effect on the thirtieth day after it shall 28 have become a law; provided however, that if chapter 503 of the laws of 29 2024 shall not have taken effect on or before such date then the amend- 30 ments to paragraph (k) of subdivision 3 of section 130.05 of the penal 31 law made by section one of this act shall take effect on the same date 32 and in the same manner as such chapter of the laws of 2024, takes 33 effect.