Bill Text: NY A01565 | 2011-2012 | General Assembly | Introduced
Bill Title: Requires employers and information technology employees to report child pornography to the state police either immediately or within 24 hours of discovery.
Spectrum: Partisan Bill (Republican 22-1)
Status: (Introduced - Dead) 2012-03-27 - held for consideration in codes [A01565 Detail]
Download: New_York-2011-A01565-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
1565
2011-2012 Regular Sessions
I N A S S E M B L Y
January 10, 2011
___________
Introduced by M. of A. TEDISCO, BURLING, CROUCH, RABBITT -- Multi-Spon-
sored by -- M. of A. AMEDORE, BARCLAY, BUTLER, CALHOUN, CONTE, FINCH,
FITZPATRICK, GIGLIO, HAYES, JORDAN, KOLB, McDONOUGH, J. MILLER, OAKS,
RAIA, REILICH, SALADINO, SAYWARD, THIELE -- read once and referred to
the Committee on Codes
AN ACT to amend the social services law, in relation to requiring
employers and information technology employees to report child pornog-
raphy to the state police
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The social services law is amended by adding a new section
2 413-a to read as follows:
3 S 413-A. REPORTING OF CHILD PORNOGRAPHY BY EMPLOYERS AND INFORMATION
4 TECHNOLOGY EMPLOYEES TO THE STATE POLICE. 1. REPORTING. NOTWITHSTANDING
5 ANY OTHER PROVISION OF LAW, ANY EMPLOYER, ANY COMPUTER ENGINEER, COMPUT-
6 ER TECHNICIAN, MANAGEMENT INFORMATION ENGINEER OR MANAGEMENT INFORMATION
7 TECHNICIAN WHO HAS KNOWLEDGE OF, OR OBSERVES, WITHIN THE SCOPE OF HIS OR
8 HER PROFESSIONAL CAPACITY OR EMPLOYMENT, ANY COMPUTER IMAGE WHICH
9 DEPICTS A CHILD WHOM THE EMPLOYER, ENGINEER OR TECHNICIAN KNOWS OR
10 REASONABLY SHOULD KNOW, TO BE UNDER THE AGE OF SEVENTEEN, WHERE SUCH
11 CHILD IS:
12 (A) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY ACT OF SEXUAL INTER-
13 COURSE WITH ANY PERSON OR ANIMAL;
14 (B) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY ACT OF SEXUAL CONTACT
15 INVOLVING THE MOUTH, ANUS OR SEXUAL ORGANS OF THE CHILD AND THE MOUTH,
16 ANUS OR SEXUAL ORGANS OF ANOTHER PERSON OR ANIMAL;
17 (C) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY ACT OF MASTURBATION;
18 (D) ACTUALLY, OR BY SIMULATION, PORTRAYED AS BEING THE OBJECT OF, OR
19 OTHERWISE ENGAGED IN ANY ACT OF LEWD FONDLING, TOUCHING OR CARESSING,
20 INVOLVING ANOTHER PERSON OR ANIMAL;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02193-01-1
A. 1565 2
1 (E) ACTUALLY, OR BY SIMULATION, ENGAGED IN ANY ACT OF EXCRETION OR
2 URINATION WITHIN A SEXUAL CONTEXT; OR
3 (F) ACTUALLY, OR BY SIMULATION, PORTRAYED OR DEPICTED AS BOUND,
4 FETTERED, OR SUBJECT TO SADISTIC, MASOCHISTIC OR SADOMASOCHISTIC ABUSE
5 IN ANY SEXUAL CONTACT;
6 SHALL REPORT SUCH INSTANCES TO THE STATE POLICE IMMEDIATELY OR WITHIN
7 TWENTY-FOUR HOURS OF DISCOVERY.
8 2. FAILURE TO REPORT. WILLFUL FAILURE TO REPORT SHALL BE PUNISHABLE BY
9 A CLASS A MISDEMEANOR.
10 3. FALSELY REPORTING. ANY EMPLOYER, COMPUTER ENGINEER, COMPUTER TECH-
11 NICIAN, MANAGEMENT INFORMATION ENGINEER OR MANAGEMENT INFORMATION TECH-
12 NICIAN WHO FALSELY REPORTS A CASE OF CHILD PORNOGRAPHY SHALL BE SUBJECT
13 TO THE PENALTIES CONTAINED UNDER SECTION 240.50 OF THE PENAL LAW.
14 4. IMMUNITY FROM LIABILITY. ANY EMPLOYER, COMPUTER ENGINEER, COMPUTER
15 TECHNICIAN, MANAGEMENT INFORMATION ENGINEER OR MANAGEMENT INFORMATION
16 TECHNICIAN PARTICIPATING IN GOOD FAITH, PURSUANT TO THIS SECTION, SHALL
17 HAVE IMMUNITY FROM ANY LIABILITY, CIVIL OR CRIMINAL, THAT MIGHT OTHER-
18 WISE RESULT BY REASON OF SUCH ACTION. FOR THE PURPOSES OF ANY CIVIL OR
19 CRIMINAL PROCEEDING, THE GOOD FAITH OF ANY PERSON REQUIRED TO REPORT
20 SUCH CASES SHALL BE PRESUMED, PROVIDED SUCH PERSON WAS ACTING IN
21 DISCHARGE OF THEIR DUTIES AND WITHIN THE SCOPE OR THEIR EMPLOYMENT, AND
22 THAT SUCH LIABILITY DID NOT RESULT FROM THE WILLFUL MISCONDUCT OR GROSS
23 NEGLIGENCE OF SUCH PERSON, OFFICIAL OR INSTITUTION.
24 5. RETALIATORY PERSONNEL ACTION BY EMPLOYERS; PROHIBITIONS. (A) AN
25 EMPLOYER SHALL NOT TAKE RETALIATORY PERSONNEL ACTION AGAINST AN EMPLOY-
26 EE, WHO PURSUANT TO THIS SECTION, REPORTS INSTANCES OF CHILD PORNOGRAPHY
27 TO THE STATE POLICE.
28 (B)(I) AN EMPLOYEE WHO HAS BEEN THE SUBJECT OF A RETALIATORY PERSONNEL
29 ACTION IN VIOLATION OF THIS SUBDIVISION MAY INSTITUTE A CIVIL ACTION IN
30 A COURT OF COMPETENT JURISDICTION FOR RELIEF AS SET FORTH IN PARAGRAPH
31 (C) OF THIS SUBDIVISION WITHIN ONE YEAR AFTER THE ALLEGED RETALIATORY
32 PERSONNEL ACTION WAS TAKEN.
33 (II) ANY ACTION AUTHORIZED BY THIS SUBDIVISION MAY BE BROUGHT IN THE
34 COUNTY IN WHICH THE ALLEGED RETALIATORY PERSONNEL ACTION OCCURRED, IN
35 THE COUNTY IN WHICH THE COMPLAINANT RESIDES, OR IN THE COUNTY IN WHICH
36 THE EMPLOYER HAS ITS PRINCIPAL PLACE OF BUSINESS.
37 (III) IT SHALL BE A DEFENSE TO ANY ACTION BROUGHT PURSUANT TO THIS
38 SUBDIVISION THAT THE PERSONNEL ACTION WAS PREDICATED UPON GROUNDS OTHER
39 THAN THE EMPLOYEE'S EXERCISE OF ANY RIGHTS PROTECTED BY THIS SUBDIVI-
40 SION.
41 (C) IN ANY ACTION BROUGHT PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVI-
42 SION, THE COURT MAY ORDER RELIEF AS FOLLOWS:
43 (I) AN INJUNCTION TO RESTRAIN CONTINUED VIOLATION OF THIS SECTION;
44 (II) THE REINSTATEMENT OF THE EMPLOYEE TO THE SAME POSITION HELD
45 BEFORE THE RETALIATORY PERSONNEL ACTION, OR TO AN EQUIVALENT POSITION;
46 (III) THE REINSTATEMENT OF FULL FRINGE BENEFITS AND SENIORITY RIGHTS;
47 (IV) THE COMPENSATION FOR LOST WAGES, BENEFITS AND OTHER REMUNERATION;
48 AND
49 (V) THE PAYMENT BY THE EMPLOYER OF REASONABLE COSTS, DISBURSEMENTS,
50 AND ATTORNEY'S FEES.
51 (D) A COURT, IN ITS DISCRETION, MAY ALSO ORDER THAT REASONABLE ATTOR-
52 NEYS' FEES AND COURT COSTS AND DISBURSEMENTS BE AWARDED TO AN EMPLOYER
53 IF THE COURT DETERMINES THAT AN ACTION BROUGHT BY AN EMPLOYEE UNDER THIS
54 SUBDIVISION WAS WITHOUT BASIS IN LAW OR IN FACT.
55 (E) NOTHING IN THIS SUBDIVISION SHALL BE DEEMED TO DIMINISH THE
56 RIGHTS, PRIVILEGES, OR REMEDIES OF ANY EMPLOYEE UNDER ANY OTHER LAW OR
A. 1565 3
1 REGULATION OR UNDER ANY COLLECTIVE BARGAINING AGREEMENT OR EMPLOYMENT
2 CONTRACT; EXCEPT THAT THE INSTITUTION OF AN ACTION IN ACCORDANCE WITH
3 THIS SUBDIVISION SHALL BE DEEMED A WAIVER OF THE RIGHTS AND REMEDIES
4 AVAILABLE UNDER ANY OTHER CONTRACT, COLLECTIVE BARGAINING AGREEMENT,
5 LAW, RULE OR REGULATION OR UNDER THE COMMON LAW.
6 6. DEFINITIONS. FOR PURPOSES OF THIS SECTION, UNLESS THE CONTEXT
7 SPECIFICALLY INDICATES OTHERWISE:
8 (A) "EMPLOYEE" MEANS AN INDIVIDUAL WHO PERFORMS SERVICES FOR AND UNDER
9 THE CONTROL AND DIRECTION OF AN EMPLOYER FOR WAGES OR OTHER REMUNERA-
10 TION.
11 (B) "EMPLOYER" MEANS ANY PERSON, FIRM, PARTNERSHIP, INSTITUTION,
12 CORPORATION, OR ASSOCIATION THAT EMPLOYS ONE OR MORE EMPLOYEES.
13 (C) "RETALIATORY PERSONNEL ACTION" MEANS THE DISCHARGE, SUSPENSION OR
14 DEMOTION OF AN EMPLOYEE, OR OTHER ADVERSE EMPLOYMENT ACTION TAKEN
15 AGAINST AN EMPLOYEE IN THE TERMS AND CONDITIONS OF EMPLOYMENT.
16 S 2. This act shall take effect on the ninetieth day after it shall
17 have become a law.
