Bill Text: NY A06150 | 2013-2014 | General Assembly | Introduced
Bill Title: Relates to vulnerable elderly persons; deletes references to caregiver to make any person who endangers the welfare of an elderly person guilty of provisions of the penal law.
Spectrum: Strong Partisan Bill (Republican 17-1)
Status: (Introduced - Dead) 2014-01-08 - referred to codes [A06150 Detail]
Download: New_York-2013-A06150-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
6150
2013-2014 Regular Sessions
I N A S S E M B L Y
March 15, 2013
___________
Introduced by M. of A. TEDISCO, RAIA, HAWLEY -- Multi-Sponsored by -- M.
of A. BARCLAY, BUTLER, CERETTO, CROUCH, DUPREY, FINCH, FITZPATRICK,
GIGLIO, JORDAN, KOLB, P. LOPEZ, McDONOUGH, McKEVITT, OAKS, RABBITT,
REILICH, SALADINO, THIELE -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to crimes against vulnerable elderly or disabled persons
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 260.31 of the penal law, as added by chapter 381 of
2 the laws of 1998, subdivision 1 as amended, subdivision 4 as added and
3 such section as renumbered by chapter 14 of the laws of 2010, and subdi-
4 vision 2 as amended by chapter 193 of the laws of 2010, is amended to
5 read as follows:
6 S 260.31 Vulnerable elderly persons; definitions.
7 For the purpose of sections 260.32 and 260.34 of this article, the
8 following definitions shall apply:
9 1. ["Caregiver" means a person who (i) assumes responsibility for the
10 care of a vulnerable elderly person, or an incompetent or physically
11 disabled person pursuant to a court order; or (ii) receives monetary or
12 other valuable consideration for providing care for a vulnerable elderly
13 person, or an incompetent or physically disabled person.
14 2.] "Sexual contact" means any touching of the sexual or other inti-
15 mate parts of a person for the purpose of gratifying sexual desire of
16 either party. It includes the touching of the actor by the victim, as
17 well as the touching of the victim by the actor, whether directly or
18 through clothing, as well as the emission of ejaculate by the actor upon
19 any part of the victim, clothed or unclothed.
20 [3.] 2. "Vulnerable elderly person" means a person sixty years of age
21 or older who is suffering from a disease or infirmity associated with
22 advanced age and manifested by demonstrable physical, mental or
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07450-01-3
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1 emotional dysfunction to the extent that the person is incapable of
2 adequately providing for his or her own health or personal care OR A
3 PERSON SEVENTY YEARS OF AGE OR OLDER.
4 [4.] 3. "Incompetent or physically disabled person" means an individ-
5 ual who is unable to care for himself or herself because of physical
6 disability, mental disease or defect.
7 S 2. The opening paragraph and subdivision 4 of section 260.32 of the
8 penal law, as amended by chapter 14 of the laws of 2010, are amended to
9 read as follows:
10 A person is guilty of endangering the welfare of a vulnerable elderly
11 person, or an incompetent or physically disabled person in the second
12 degree when[, being a caregiver for a vulnerable elderly person, or an
13 incompetent or physically disabled person]:
14 4. He or she subjects such person to sexual contact without the
15 latter's consent. Lack of consent under this subdivision results from
16 forcible compulsion or incapacity to consent, as those terms are defined
17 in article one hundred thirty of this [chapter] PART, or any other
18 circumstances in which the vulnerable elderly person, or an incompetent
19 or physically disabled person does not expressly or impliedly acquiesce
20 [in the caregiver's conduct]. In any prosecution under this subdivision
21 in which the victim's alleged lack of consent results solely from inca-
22 pacity to consent because of the victim's mental disability or mental
23 incapacity, the provisions of section 130.16 of this [chapter] PART
24 shall apply. In addition, in any prosecution under this subdivision in
25 which the victim's lack of consent is based solely upon his or her inca-
26 pacity to consent because he or she was mentally disabled, mentally
27 incapacitated or physically helpless, it is an affirmative defense that
28 the defendant, at the time he or she engaged in the conduct constituting
29 the offense, did not know of the facts or conditions responsible for
30 such incapacity to consent.
31 S 3. The opening paragraph of section 260.34 of the penal law, as
32 amended by chapter 14 of the laws of 2010, is amended to read as
33 follows:
34 A person is guilty of endangering the welfare of a vulnerable elderly
35 person, or an incompetent or physically disabled person in the first
36 degree when[, being a caregiver for a vulnerable elderly person, or an
37 incompetent or physically disabled person]:
38 S 4. Paragraphs (c) and (d) of subdivision 1 of section 70.02 of the
39 penal law, paragraph (c) as amended by chapter 405 of the laws of 2010
40 and paragraph (d) as amended by chapter 7 of the laws of 2007, are
41 amended to read as follows:
42 (c) Class D violent felony offenses: an attempt to commit any of the
43 class C felonies set forth in paragraph (b); reckless assault of a child
44 as defined in section 120.02, assault in the second degree as defined in
45 section 120.05, menacing a police officer or peace officer as defined in
46 section 120.18, stalking in the first degree, as defined in subdivision
47 one of section 120.60, strangulation in the second degree as defined in
48 section 121.12, rape in the second degree as defined in section 130.30,
49 criminal sexual act in the second degree as defined in section 130.45,
50 sexual abuse in the first degree as defined in section 130.65, course of
51 sexual conduct against a child in the second degree as defined in
52 section 130.80, aggravated sexual abuse in the third degree as defined
53 in section 130.66, facilitating a sex offense with a controlled
54 substance as defined in section 130.90, criminal possession of a weapon
55 in the third degree as defined in subdivision five, six, seven or eight
56 of section 265.02, criminal sale of a firearm in the third degree as
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1 defined in section 265.11, intimidating a victim or witness in the
2 second degree as defined in section 215.16, ENDANGERING THE WELFARE OF A
3 VULNERABLE ELDERLY PERSON IN THE FIRST DEGREE AS DEFINED IN SECTION
4 260.34, soliciting or providing support for an act of terrorism in the
5 second degree as defined in section 490.10, and making a terroristic
6 threat as defined in section 490.20, falsely reporting an incident in
7 the first degree as defined in section 240.60, placing a false bomb or
8 hazardous substance in the first degree as defined in section 240.62,
9 placing a false bomb or hazardous substance in a sports stadium or
10 arena, mass transportation facility or enclosed shopping mall as defined
11 in section 240.63, and aggravated unpermitted use of indoor pyrotechnics
12 in the first degree as defined in section 405.18.
13 (d) Class E violent felony offenses: ENDANGERING THE WELFARE OF A
14 VULNERABLE ELDERLY PERSON IN THE SECOND DEGREE AS DEFINED IN SECTION
15 260.32, an attempt to commit any of the felonies of criminal possession
16 of a weapon in the third degree as defined in subdivision five, six,
17 seven or eight of section 265.02 as a lesser included offense of that
18 section as defined in section 220.20 of the criminal procedure law,
19 persistent sexual abuse as defined in section 130.53, aggravated sexual
20 abuse in the fourth degree as defined in section 130.65-a, falsely
21 reporting an incident in the second degree as defined in section 240.55
22 and placing a false bomb or hazardous substance in the second degree as
23 defined in section 240.61.
24 S 5. Part 4 of the penal law is amended by adding a new title Y-2 to
25 read as follows:
26 TITLE Y-2
27 CRIMES AGAINST THE
28 ELDERLY OR DISABLED
29 ARTICLE 495
30 CRIMES AGAINST THE
31 ELDERLY OR DISABLED
32 SECTION 495.00 CRIMES AGAINST THE ELDERLY OR DISABLED.
33 495.05 SENTENCING.
34 S 495.00 CRIMES AGAINST THE ELDERLY OR DISABLED.
35 1. A PERSON COMMITS A CRIME AGAINST THE ELDERLY OR DISABLED WHEN HE OR
36 SHE COMMITS A SPECIFIED OFFENSE AND EITHER:
37 (A) INTENTIONALLY SELECTS THE PERSON AGAINST WHOM THE OFFENSE IS
38 COMMITTED OR INTENDED TO BE COMMITTED IN WHOLE OR IN SUBSTANTIAL PART
39 BECAUSE OF A BELIEF OR PERCEPTION REGARDING THE DISABILITY STATUS OR AGE
40 RELATED INFIRMITY OR DISEASE OF A PERSON, REGARDLESS OF WHETHER THE
41 BELIEF OR PERCEPTION IS CORRECT; OR
42 (B) INTENTIONALLY COMMITS THE ACT OR ACTS CONSTITUTING THE OFFENSE IN
43 WHOLE OR IN SUBSTANTIAL PART BECAUSE OF A BELIEF OR PERCEPTION REGARDING
44 DISABILITY STATUS OR AGE RELATED INFIRMITY OR DISEASE OF A PERSON,
45 REGARDLESS OF WHETHER THE BELIEF OR PERCEPTION IS CORRECT.
46 2. FOR THE PURPOSE OF THIS SECTION: (A) WHEN A PERSON REASONABLY
47 APPEARS TO HAVE A DISABILITY OR AN AGE RELATED INFIRMITY OR DISEASE,
48 THERE SHALL BE A REBUTTABLE PRESUMPTION THE DEFENDANT SELECTED THE
49 PERSON AGAINST WHOM THE OFFENSE OR ACT IS COMMITTED OR INTENDED TO BE
50 COMMITTED, IN WHOLE OR IN PART BECAUSE OF A BELIEF OR PERCEPTION REGARD-
51 ING THE DISABILITY STATUS OR AGE RELATED INFIRMITY OR DISEASE OF SUCH
52 PERSON; AND (B) WHEN A PERSON IS SEVENTY YEARS OLD OR MORE, THERE SHALL
53 BE A REBUTTABLE PRESUMPTION THAT SUCH PERSON APPEARS TO HAVE A DISABILI-
54 TY OR AN AGE RELATED INFIRMITY.
55 3. A "SPECIFIED OFFENSE" IS AN OFFENSE DEFINED BY ANY OF THE FOLLOWING
56 PROVISIONS OF THIS CHAPTER: SECTION 120.00 (ASSAULT IN THE THIRD
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1 DEGREE); SECTION 120.05 (ASSAULT IN THE SECOND DEGREE); SECTION 120.10
2 (ASSAULT IN THE FIRST DEGREE); SECTION 120.12 (AGGRAVATED ASSAULT UPON A
3 PERSON LESS THAN ELEVEN YEARS OLD); SECTION 120.13 (MENACING IN THE
4 FIRST DEGREE); SECTION 120.14 (MENACING IN THE SECOND DEGREE); SECTION
5 120.15 (MENACING IN THE THIRD DEGREE); SECTION 120.20 (RECKLESS ENDAN-
6 GERMENT IN THE SECOND DEGREE); SECTION 120.25 (RECKLESS ENDANGERMENT IN
7 THE FIRST DEGREE); SECTION 120.45 (STALKING IN THE FOURTH DEGREE);
8 SECTION 120.50 (STALKING IN THE THIRD DEGREE); SECTION 120.55 (STALKING
9 IN THE SECOND DEGREE); SECTION 120.60 (STALKING IN THE FIRST DEGREE);
10 SUBDIVISION ONE OF SECTION 125.15 (MANSLAUGHTER IN THE SECOND DEGREE);
11 SUBDIVISION ONE, TWO OR FOUR OF SECTION 125.20 (MANSLAUGHTER IN THE
12 FIRST DEGREE); SECTION 125.25 (MURDER IN THE SECOND DEGREE); SUBDIVISION
13 ONE OF SECTION 130.35 (RAPE IN THE FIRST DEGREE); SUBDIVISION ONE OF
14 SECTION 130.50 (CRIMINAL SEXUAL ACT IN THE FIRST DEGREE); SUBDIVISION
15 ONE OF SECTION 130.65 (SEXUAL ABUSE IN THE FIRST DEGREE); PARAGRAPH (A)
16 OF SUBDIVISION ONE OF SECTION 130.67 (AGGRAVATED SEXUAL ABUSE IN THE
17 SECOND DEGREE); PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 130.70
18 (AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE); SECTION 135.05 (UNLAWFUL
19 IMPRISONMENT IN THE SECOND DEGREE); SECTION 135.10 (UNLAWFUL IMPRISON-
20 MENT IN THE FIRST DEGREE); SECTION 135.20 (KIDNAPPING IN THE SECOND
21 DEGREE); SECTION 135.25 (KIDNAPPING IN THE FIRST DEGREE); SECTION 135.60
22 (COERCION IN THE SECOND DEGREE); SECTION 135.65 (COERCION IN THE FIRST
23 DEGREE); SECTION 140.10 (CRIMINAL TRESPASS IN THE THIRD DEGREE); SECTION
24 140.15 (CRIMINAL TRESPASS IN THE SECOND DEGREE); SECTION 140.17 (CRIMI-
25 NAL TRESPASS IN THE FIRST DEGREE); SECTION 140.20 (BURGLARY IN THE THIRD
26 DEGREE); SECTION 140.25 (BURGLARY IN THE SECOND DEGREE); SECTION 140.30
27 (BURGLARY IN THE FIRST DEGREE); SECTION 145.00 (CRIMINAL MISCHIEF IN THE
28 FOURTH DEGREE); SECTION 145.05 (CRIMINAL MISCHIEF IN THE THIRD DEGREE);
29 SECTION 145.10 (CRIMINAL MISCHIEF IN THE SECOND DEGREE); SECTION 145.12
30 (CRIMINAL MISCHIEF IN THE FIRST DEGREE); SECTION 150.05 (ARSON IN THE
31 FOURTH DEGREE); SECTION 150.10 (ARSON IN THE THIRD DEGREE); SECTION
32 150.15 (ARSON IN THE SECOND DEGREE); SECTION 150.20 (ARSON IN THE FIRST
33 DEGREE); SECTION 155.25 (PETIT LARCENY); SECTION 155.30 (GRAND LARCENY
34 IN THE FOURTH DEGREE); SECTION 155.35 (GRAND LARCENY IN THE THIRD
35 DEGREE); SECTION 155.40 (GRAND LARCENY IN THE SECOND DEGREE); SECTION
36 155.42 (GRAND LARCENY IN THE FIRST DEGREE); SECTION 160.05 (ROBBERY IN
37 THE THIRD DEGREE); SECTION 160.10 (ROBBERY IN THE SECOND DEGREE);
38 SECTION 160.15 (ROBBERY IN THE FIRST DEGREE); SECTION 240.25 (HARASSMENT
39 IN THE FIRST DEGREE); SUBDIVISION ONE, TWO OR FOUR OF SECTION 240.30
40 (AGGRAVATED HARASSMENT IN THE SECOND DEGREE); OR ANY ATTEMPT OR CONSPIR-
41 ACY TO COMMIT ANY OF THE FOREGOING OFFENSES.
42 4. FOR THE PURPOSES OF THIS SECTION:
43 (A) A PERSON HAS AN AGE RELATED INFIRMITY OR DISEASE WHEN, BEING SIXTY
44 YEARS OLD OR MORE, SUCH PERSON HAS A PHYSICAL OR MENTAL DISEASE OR
45 INFIRMITY, TYPICALLY ASSOCIATED WITH ADVANCED AGE, WHICH SUBSTANTIALLY
46 LIMITS A MAJOR LIFE ACTIVITY;
47 (B) THE TERM "SUBSTANTIAL PART" INCLUDES BUT IS NOT LIMITED TO CIRCUM-
48 STANCES IN WHICH A DEFENDANT SELECTS A PERSON AGAINST WHOM TO COMMIT OR
49 ATTEMPT TO COMMIT A CRIME DUE TO A BELIEF OR PERCEPTION THAT SUCH PERSON
50 IS LESS LIKELY TO RESIST OR BE ABLE TO RESIST SUCH CRIME DUE TO THEIR
51 DISABILITY OR AGE RELATED INFIRMITY OR DISEASE, REGARDLESS OF WHETHER
52 SUCH BELIEF OR PERCEPTION IS CORRECT;
53 (C) THE TERM "DISABILITY" MEANS A PHYSICAL OR MENTAL IMPAIRMENT THAT
54 SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY; AND
55 (D) THE TERM "RESIST" INCLUDES, IN ADDITION TO ITS REGULAR MEANING,
56 REPORTING SUCH CRIME TO LAW ENFORCEMENT, OBSERVING, RECALLING, OR
A. 6150 5
1 REPORTING KEY FEATURES OF ANY ACT OR CHARACTERISTIC OF A DEFENDANT
2 RELATED TO SUCH CRIME, OR PROVIDING EVIDENCE TO AID IN THE INVESTIGATION
3 OR PROSECUTION OF SUCH CRIME.
4 S 495.05 SENTENCING.
5 1. WHEN A PERSON IS CONVICTED OF A CRIME AGAINST THE ELDERLY OR DISA-
6 BLED PURSUANT TO THIS ARTICLE, AND THE SPECIFIED OFFENSE IS A VIOLENT
7 FELONY OFFENSE, AS DEFINED IN SECTION 70.02 OF THIS CHAPTER, THE CRIME
8 AGAINST THE ELDERLY OR DISABLED SHALL BE DEEMED A VIOLENT FELONY
9 OFFENSE.
10 2. WHEN A PERSON IS CONVICTED OF A CRIME AGAINST THE ELDERLY OR DISA-
11 BLED PURSUANT TO THIS ARTICLE AND THE SPECIFIED OFFENSE IS A MISDEMEANOR
12 OR A CLASS C, D OR E FELONY, THE CRIME AGAINST THE ELDERLY OR DISABLED
13 SHALL BE DEEMED TO BE ONE CATEGORY HIGHER THAN THE SPECIFIED OFFENSE THE
14 DEFENDANT COMMITTED, OR ONE CATEGORY HIGHER THAN THE OFFENSE LEVEL
15 APPLICABLE TO THE DEFENDANT'S CONVICTION FOR AN ATTEMPT OR CONSPIRACY TO
16 COMMIT A SPECIFIED OFFENSE, WHICHEVER IS APPLICABLE.
17 3. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN A PERSON IS
18 CONVICTED OF A CRIME AGAINST THE ELDERLY OR DISABLED PURSUANT TO THIS
19 ARTICLE AND THE SPECIFIED OFFENSE IS A CLASS B FELONY OFFENSE:
20 (A) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
21 SIX YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.00 OF
22 THIS CHAPTER;
23 (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT YEARS
24 IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
25 (C) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
26 IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
27 (D) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
28 FOUR YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.05 OF
29 THIS CHAPTER; AND
30 (E) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE OR THE TERM OF THE
31 DETERMINATE SENTENCE MUST BE AT LEAST TEN YEARS IF THE DEFENDANT IS
32 SENTENCED PURSUANT TO SECTION 70.06 OF THIS CHAPTER.
33 4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN A PERSON IS
34 CONVICTED OF CRIME AGAINST THE ELDERLY OR DISABLED PURSUANT TO THIS
35 ARTICLE AND THE SPECIFIED OFFENSE IS A CLASS A-1 FELONY, THE MINIMUM
36 PERIOD OF THE INDETERMINATE SENTENCE SHALL BE NOT LESS THAN TWENTY
37 YEARS.
38 S 6. Subdivisions 4 and 7 of section 200.50 of the criminal procedure
39 law, as amended by chapter 7 of the laws of 2007, are amended to read as
40 follows:
41 4. A statement in each count that the grand jury, or, where the accu-
42 satory instrument is a superior court information, the district attor-
43 ney, accuses the defendant or defendants of a designated offense,
44 provided that in any prosecution under article four hundred eighty-five
45 of the penal law, the designated offense shall be the specified offense,
46 as defined in subdivision three of section 485.05 of the penal law,
47 followed by the phrase "as a hate crime", [and] provided further that in
48 any prosecution under section 490.25 of the penal law, the designated
49 offense shall be the specified offense, as defined in subdivision three
50 of section 490.05 of the penal law, followed by the phrase "as a crime
51 of terrorism"; AND PROVIDED FURTHER THAT IN ANY PROSECUTION UNDER
52 SECTION 495.00 OF THE PENAL LAW, THE DESIGNATED OFFENSE SHALL BE THE
53 SPECIFIED OFFENSE, AS DEFINED IN SUBDIVISION THREE OF SECTION 495.00 OF
54 THE PENAL LAW, FOLLOWED BY THE PHRASE "AS A CRIME AGAINST THE ELDERLY OR
55 DISABLED"; and provided further that in any prosecution under section
56 130.91 of the penal law, the designated offense shall be the specified
A. 6150 6
1 offense, as defined in subdivision two of section 130.91 of the penal
2 law, followed by the phrase "as a sexually motivated felony"; and
3 7. A plain and concise factual statement in each count which, without
4 allegations of an evidentiary nature,
5 (a) asserts facts supporting every element of the offense charged and
6 the defendant's or defendants' commission thereof with sufficient preci-
7 sion to clearly apprise the defendant or defendants of the conduct which
8 is the subject of the accusation; and
9 (b) in the case of any armed felony, as defined in subdivision forty-
10 one of section 1.20, states that such offense is an armed felony and
11 specifies the particular implement the defendant or defendants
12 possessed, were armed with, used or displayed or, in the case of an
13 implement displayed, specifies what the implement appeared to be; and
14 (c) in the case of any hate crime, as defined in section 485.05 of the
15 penal law, specifies, as applicable, that the defendant or defendants
16 intentionally selected the person against whom the offense was committed
17 or intended to be committed; or intentionally committed the act or acts
18 constituting the offense, in whole or in substantial part because of a
19 belief or perception regarding the race, color, national origin, ances-
20 try, gender, religion, religious practice, age, disability or sexual
21 orientation of a person; and
22 (d) in the case of a crime of terrorism, as defined in section 490.25
23 of the penal law, specifies, as applicable, that the defendant or
24 defendants acted with intent to intimidate or coerce a civilian popu-
25 lation, influence the policy of a unit of government by intimidation or
26 coercion, or affect the conduct of a unit of government by murder,
27 assassination or kidnapping; and
28 (e) in the case of a sexually motivated felony, as defined in section
29 130.91 of the penal law, asserts facts supporting the allegation that
30 the offense was sexually motivated; and
31 (F) IN THE CASE OF ANY CRIME AGAINST THE ELDERLY OR DISABLED, AS
32 DEFINED IN SECTION 495.00 OF THE PENAL LAW, SPECIFIES, AS APPLICABLE,
33 THAT THE DEFENDANT OR DEFENDANTS INTENTIONALLY SELECTED THE PERSON
34 AGAINST WHOM THE OFFENSE WAS COMMITTED OR INTENDED TO BE COMMITTED; OR
35 INTENTIONALLY COMMITTED THE ACT OR ACTS CONSTITUTING THE OFFENSE, IN
36 WHOLE OR IN SUBSTANTIAL PART BECAUSE OF A BELIEF OR PERCEPTION REGARDING
37 THE DISABILITY STATUS OR AGE RELATED INFIRMITY OR DISEASE OF A PERSON;
38 AND
39 S 7. This act shall take effect on the first of November next succeed-
40 ing the date on which it shall have become a law.
