Bill Text: NY S05062 | 2017-2018 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relates to the use in evidence of the fact of possession or presence on the premises of condoms and other sexual and reproductive health devices.

Spectrum: Partisan Bill (Democrat 10-0)

Status: (Introduced - Dead) 2018-01-03 - REFERRED TO JUDICIARY [S05062 Detail]

Download: New_York-2017-S05062-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          5062
                               2017-2018 Regular Sessions
                    IN SENATE
                                      March 6, 2017
                                       ___________
        Introduced   by  Sens.  MONTGOMERY,  BAILEY,  COMRIE,  HOYLMAN,  PARKER,
          PERSAUD, RIVERA, SAVINO -- read twice and ordered  printed,  and  when
          printed to be committed to the Committee on Judiciary
        AN ACT to amend the civil practice law and rules, the criminal procedure
          law, the executive law, and the legislative law in relation to the use
          in  evidence  of the fact of possession or presence on the premises of
          condoms and other sexual  and  reproductive  health  devices;  and  to
          repeal certain provisions of the criminal procedure law relating ther-
          eto
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. This act shall be known and may be cited as the "End crimi-
     2  nalization of condoms act".
     3    § 2. Legislative findings. The legislature hereby finds that promoting
     4  and protecting health and respecting and  fulfilling  human  rights  are
     5  necessarily  linked,  and  that  health-oriented  and  rights-based  law
     6  enforcement efforts are central to the effective provision of government
     7  services for the benefit of the people of the State. Article 17, section
     8  3 of the New York constitution requires that the legislature protect and
     9  promote the health of the inhabitants of  this  state  as  a  matter  of
    10  public  concern.  Despite  these provisions, for purposes of prosecuting
    11  certain criminal, civil and administrative  offenses,  reproductive  and
    12  sexual  health  tools, including condoms, are currently being destroyed,
    13  confiscated, or used as  evidence  by  law  enforcement  officers.  This
    14  legislation is intended to strengthen the public health of all New York-
    15  ers,  including the most vulnerable, while preserving the ability of law
    16  enforcement to prosecute other crimes such as  felony  sexual  offenses.
    17  The  purpose  of this bill is to avoid the disparate impact of the prac-
    18  tice of citing condoms and other reproductive and sexual health tools as
    19  evidence upon survivors  of  trafficking  and  people  who  are  or  are
    20  profiled as being engaged in the sex trades.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06195-02-7
        S. 5062                             2
     1    §  3.  The  civil  practice  law  and rules is amended by adding a new
     2  section 4519-a to read as follows:
     3    § 4519-a. Possession of reproductive or sexual health devices; receipt
     4  into evidence.  1. The fact of possession of a condom or other reproduc-
     5  tive  or  sexual  health  device  may not be received in evidence in any
     6  trial, hearing or proceeding pursuant  to  subdivision  one  of  section
     7  twelve  and  article ten of the multiple dwelling law, sections twelve-a
     8  and twenty-three hundred twenty of the public health  law,  section  two
     9  hundred  thirty-one  of  the  real  property  law or subdivision five of
    10  section seven hundred eleven and section seven hundred  fifteen  of  the
    11  real  property  actions and proceedings law, or by any law, local law or
    12  ordinance of a political subdivision of this state, or by any word, rule
    13  or regulation of any governmental instrumentality authorized by  law  to
    14  adopt  the  same  as evidence of prostitution, patronizing a prostitute,
    15  promoting prostitution, permitting prostitution, maintaining a  premises
    16  for  prostitution,  lewdness  or assignation, maintaining a bawdy house,
    17  compelling prostitution, or sex trafficking.
    18    2. "Reproductive or sexual health device" shall include any contracep-
    19  tive or other tool used to prevent  unwanted  pregnancy  or  the  trans-
    20  mission of HIV or other sexually transmitted diseases, including but not
    21  limited  to  male  condoms,  female  condoms,  lubricants,  pre-exposure
    22  prophylaxis ("PrEP"), post-exposure prophylaxis ("PEP"), HIV anti-retro-
    23  viral medication, spermicide, hormonal methods, emergency contraception,
    24  diaphragm, cervical cap, or sponge.
    25    3. "Possession" means to have  physical  possession  or  otherwise  to
    26  exercise dominion or control over tangible property.
    27    4.  The fact of possession or presence in a premises of a reproductive
    28  or sexual health device shall not be introduced as evidence by any means
    29  for any of the aforementioned purposes, including by either physical  or
    30  testimonial evidence.
    31    §  4.  The  criminal  procedure law is amended by adding a new section
    32  60.49 to read as follows:
    33  § 60.49 Possession of reproductive or sexual health device; receipt into
    34            evidence.
    35    1. Evidence that a person was in  possession  of  a  condom  or  other
    36  reproductive  or  sexual health device may not be admitted at any trial,
    37  hearing or other proceeding in a prosecution  for  any  offense,  or  an
    38  attempt  to commit any offense, defined in article two hundred thirty or
    39  section 240.37 of the penal law, or section sixty-five hundred twelve of
    40  the education law, or any law, local law or  ordinance  of  a  political
    41  subdivision  of  this  state,  or  any  word,  rule or regulation of any
    42  governmental instrumentality authorized by law to adopt  the  same,  for
    43  the  purpose of establishing probable cause for an arrest or proving any
    44  person's commission or attempted commission of such offense, as evidence
    45  of prostitution or trafficking-related activity.
    46    2. "Reproductive or sexual health device" shall include any contracep-
    47  tive or other tool used to prevent  unwanted  pregnancy  or  the  trans-
    48  mission of HIV or other sexually transmitted diseases, including but not
    49  limited to male condoms, female condoms, lubricant, pre-exposure prophy-
    50  laxis  ("PrEP"),  post-exposure prophylaxis ("PEP"), HIV anti-retroviral
    51  medication,  spermicide,  hormonal  methods,  emergency   contraception,
    52  diaphragm, cervical cap, or sponge.
    53    3.  "Possession"  means  to  have  physical possession or otherwise to
    54  exercise dominion or control over tangible property.
    55    4. The fact of possession or presence on the premises of  a  reproduc-
    56  tive  or sexual health device shall not be introduced as evidence by any
        S. 5062                             3
     1  means for any of the aforementioned purposes, including by either  phys-
     2  ical or testimonial evidence.
     3    §  5. Paragraph (d) of subdivision 1 of section 160.10 of the criminal
     4  procedure law is REPEALED.
     5    § 6. The opening paragraph of subdivision 1, subdivision 2 and  subdi-
     6  vision  3  of  section 160.55 of the criminal procedure law, the opening
     7  paragraph of subdivision 1 as amended by chapter  169  of  the  laws  of
     8  1994,  subdivision  2  as amended by chapter 476 of the laws of 2009 and
     9  subdivision 3 as amended by chapter 249 of the laws of 1981  and  renum-
    10  bered  by  chapter  142  of  the  laws  of  1991, are amended to read as
    11  follows:
    12    Upon the termination of a criminal  action  or  proceeding  against  a
    13  person  by  the  conviction  of such person of a traffic infraction or a
    14  violation, other than [a violation of loitering as  described  in  para-
    15  graph  (d)  or  (e) of subdivision one of section 160.10 of this chapter
    16  or] the violation of operating a motor vehicle while ability impaired as
    17  described in subdivision one of section eleven hundred ninety-two of the
    18  vehicle and traffic law, unless the district attorney upon  motion  with
    19  not  less  than  five  days notice to such person or his or her attorney
    20  demonstrates to the satisfaction of the  court  that  the  interests  of
    21  justice  require otherwise, or the court on its own motion with not less
    22  than five days notice to such person or his or her  attorney  determines
    23  that  the  interests of justice require otherwise and states the reasons
    24  for such determination on the record, the clerk  of  the  court  wherein
    25  such  criminal  action  or  proceeding  was terminated shall immediately
    26  notify the commissioner of the division of criminal justice services and
    27  the heads of all appropriate police departments and other  law  enforce-
    28  ment  agencies  that  the action has been terminated by such conviction.
    29  Upon receipt of notification of such termination:
    30    2. A report  of  the  termination  of  the  action  or  proceeding  by
    31  conviction of a traffic violation or a violation other than [a violation
    32  of  loitering as described in paragraph (d) or (e) of subdivision one of
    33  section 160.10 of this title or] the  violation  of  operating  a  motor
    34  vehicle  while  ability  impaired  as  described  in  subdivision one of
    35  section eleven hundred ninety-two of the vehicle and traffic law,  shall
    36  be  sufficient  notice of sealing to the commissioner of the division of
    37  criminal justice services unless the  report  also  indicates  that  the
    38  court  directed  that  the  record  not  be  sealed  in the interests of
    39  justice. Where the court has determined pursuant to subdivision  one  of
    40  this  section that sealing is not in the interests of justice, the clerk
    41  of the court shall include notification of  that  determination  in  any
    42  report  to such division of the disposition of the action or proceeding.
    43  When the defendant has been found guilty of a violation of harassment in
    44  the second degree and it was determined pursuant to subdivision  eight-a
    45  of  section  170.10  of  this  title  that  such violation was committed
    46  against a member of the same family or household as the  defendant,  the
    47  clerk  of  the court shall include notification of that determination in
    48  any report to such division of the disposition of the action or proceed-
    49  ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d)
    50  of subdivision one of this section.
    51    3. A person against whom a criminal action or  proceeding  was  termi-
    52  nated  by  such person's conviction of a traffic infraction or violation
    53  other than [a violation of loitering as described in  paragraph  (d)  or
    54  (e)  of  subdivision  one  of  section  160.10  of  this chapter or] the
    55  violation of  operating  a  motor  vehicle  while  ability  impaired  as
    56  described in subdivision one of section eleven hundred ninety-two of the
        S. 5062                             4
     1  vehicle  and  traffic  law, prior to the effective date of this section,
     2  may upon motion apply to the court in which such  termination  occurred,
     3  upon  not  less than twenty days notice to the district attorney, for an
     4  order granting to such person the relief set forth in subdivision one of
     5  this section, and such order shall be granted unless the district attor-
     6  ney  demonstrates to the satisfaction of the court that the interests of
     7  justice require otherwise.
     8    § 7. Section 841 of the executive law  is  amended  by  adding  a  new
     9  subdivision 7-b to read as follows:
    10    7-b.  Take  such  steps  as may be necessary to ensure that all police
    11  officers and peace officers certified pursuant to subdivision  three  of
    12  this  section  receive appropriate instruction regarding the evidentiary
    13  prohibition set forth in section 60.47 of the criminal procedure law and
    14  section forty-five hundred nineteen-a of  the  civil  practice  law  and
    15  rules  relating  to  the use of condoms and other reproductive or sexual
    16  health devices as evidence in certain trials, hearings  or  proceedings,
    17  or as a basis for probable cause for arrest, including that unauthorized
    18  seizure  or  confiscation  of  condoms  and other reproductive or sexual
    19  health devices is a breach of public policy.
    20    § 8. The legislative law is amended by adding a new section 49 to read
    21  as follows:
    22    § 49. Requirement with respect to bills amending  certain  laws  which
    23  affect health and human rights. Whenever a committee favorably reports a
    24  bill to amend articles two hundred thirty or section 240.37 of the penal
    25  law,  or, at the discretion of the voting majority of the committee, any
    26  bill which, if passed, would increase or decrease the number  of  arres-
    27  tees  or  pretrial or sentenced population of correctional facilities in
    28  this state, a majority of the committee members voting may request  that
    29  a health and human rights impact statement be prepared.  The legislature
    30  shall  by  concurrent  resolution  of  the senate and assembly prescribe
    31  rules requiring health and human rights impact statements to  accompany,
    32  on  a separate form, bills and amendments to bills after such bills have
    33  been reported from committee.  Health and human rights impact statements
    34  shall be prepared before the bill is considered for final  passage.  The
    35  statement  shall indicate whether the bill would have a disparate impact
    36  by  race,  ethnicity,  religion,  age,  gender,   gender   identity   or
    37  expression, sexual orientation, immigration status, disability, or hous-
    38  ing  status  composition of the arrestee and correctional facility popu-
    39  lation and an explanation of that impact. Any impact  statement  printed
    40  with  or  prepared  for a bill is solely for the purpose of information,
    41  summarization and explanation for members of the legislature  and  shall
    42  not  be  construed  to represent the intent of the legislature or either
    43  chamber thereof for any purpose. Each impact statement  shall  bear  the
    44  following  disclaimer:  "The  following  health  and human rights impact
    45  statement is prepared for the benefit of the members of the legislature,
    46  solely for purposes of information, summarization  and  explanation  and
    47  does not represent the intent of the legislature or either chamber ther-
    48  eof for any purpose."
    49    §  9.  The  legislative law is amended by adding a new section 83-n to
    50  read as follows:
    51    § 83-n. Legislative commission on health and human  rights.    1.  The
    52  legislature  hereby  finds  that  promoting  and  protecting  health and
    53  respecting and fulfilling human rights are necessarily linked, and  that
    54  coordination  between  health  and law enforcement efforts is central to
    55  the effective provision of government services for the  benefit  of  the
    56  people of the state.
        S. 5062                             5
     1    2.  A  legislative  commission  on  health  and human rights is hereby
     2  established to examine, evaluate  and  make  recommendations  concerning
     3  rights-based  approaches  to  health  and law enforcement interventions.
     4  The commission shall act as  a  mechanism  for  ongoing  and  meaningful
     5  involvement  of  those  who are or potentially could be affected by this
     6  law, including, but not limited to, survivors of trafficking, people who
     7  are or are profiled as being involved in the sex trades, communities  of
     8  color,  lesbian,  gay,  bisexual  and  transgender people, and people in
     9  custodial settings. The commission shall provide monitoring  and  expert
    10  perspective  to the legislature, promoting awareness of problems in real
    11  time as they emerge, increase cooperation and collaboration between  the
    12  individuals and communities directly impacted and their legislators, and
    13  allow  legislators to share responsibility for successes and failures of
    14  these initiatives. The commission shall make such recommendations as  it
    15  may  deem  necessary as to regulations, policies, programs, and proposed
    16  legislation to provide an equitable system of providing for  the  public
    17  safety while also protecting public health, to encourage the most effec-
    18  tive  use of state and local resources, to preserve the fiscal integrity
    19  of both state and local  government  health  systems  and  otherwise  to
    20  strengthen the fundamental human right to health.
    21    3.  The commission shall consist of ten representatives from organiza-
    22  tions that promote advocacy by and for  directly  impacted  communities.
    23  From  among the members so appointed, a chairperson and vice chairperson
    24  shall be designated by the joint  action  of  the  chairpersons  of  the
    25  senate  and  assembly  health committees. Any vacancy that occurs in the
    26  commission or in the chairmanship or vice chairmanship shall  be  filled
    27  in  the same manner in which the original appointment or designation was
    28  made.
    29    4. The commission in addition to the above mentioned powers shall have
    30  all the powers and privileges of a  legislative  committee  pursuant  to
    31  this chapter.
    32    5.  For  the  accomplishment  of  its purpose, the commission shall be
    33  authorized and empowered to undertake any  study,  inquiry,  survey,  or
    34  analysis  it  may deem relevant through its own personnel in cooperation
    35  with or by agreement with any other public or private agency.
    36    6. The commission may require and shall receive from  any  department,
    37  board,  bureau,  commission, authority, office, or other instrumentality
    38  of the state, and from any county, city, town or village of this  state,
    39  such  facilities, assistance, and data, as it deems necessary or desira-
    40  ble for proper execution of its powers and duties.
    41    7. The commission may hold public or private hearings and  shall  have
    42  full  powers to subpoena witnesses and all records or data it shall deem
    43  necessary or desirable pursuant to this chapter.
    44    8. The members of the commission shall serve on a voluntary basis  and
    45  receive no compensation for their services.
    46    §  10.  Paragraph (f) of subdivision 4 of section 837 of the executive
    47  law, as amended by chapter 169 of the laws of 1994, is amended and a new
    48  paragraph (g) is added to read as follows:
    49    (f) Accomplish all of the functions, powers, and duties set  forth  in
    50  paragraphs (a), (b), (c) and (d) of this subdivision with respect to the
    51  processing  and  disposition  of cases involving violent felony offenses
    52  specified in subdivision one of section 70.02 of the penal law[.]; and
    53    (g) Accomplish all of the functions, powers, and duties set  forth  in
    54  paragraphs (a), (b), (c) and (d) of this subdivision with respect to all
    55  chapters  of law resulting from legislative bills that have been subject
    56  to the provisions of  sections  forty-nine  and  eighty-three-n  of  the
        S. 5062                             6
     1  legislative  law. The division shall present to the governor, the tempo-
     2  rary president of the senate, the minority leader  of  the  senate,  the
     3  speaker of the assembly and the minority leader of the assembly an annu-
     4  al  report  containing  the statistics and other information relevant to
     5  this subdivision.
     6    § 11. If any provision of this article or the application  thereof  to
     7  any  person,  circumstances,  or  political subdivision of this state is
     8  adjudged invalid by a court  of  competent  jurisdiction  such  judgment
     9  shall  not  affect or impair the validity of the other provisions of the
    10  article or the application thereof to other  political  subdivisions  of
    11  this state, persons, and circumstances.
    12    § 12. This act shall take effect on the first of March next succeeding
    13  the date on which it shall have become a law.