Bill Text: NY A04273 | 2021-2022 | General Assembly | Introduced
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 11-0)
Status: (Introduced - Dead) 2022-01-05 - referred to codes [A04273 Detail]
Download: New_York-2021-A04273-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4273 2021-2022 Regular Sessions IN ASSEMBLY February 1, 2021 ___________ Introduced by M. of A. WALKER, QUART, GLICK, REYES, BRONSON, LAVINE, GOTTFRIED, DE LA ROSA, CRUZ -- read once and referred to the Committee on Codes 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 paragraph (d) of subdivision 1 of section 160.10 of the crimi- nal procedure law relating thereto 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. LBD07971-01-1A. 4273 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 § 4. Section 60.47 of the criminal procedure law, as added by section 26 2 of part I of chapter 57 of the laws of 2015, is amended to read as 27 follows: 28 § 60.47 Possession of condoms or other reproductive or sexual health 29 device; receipt into evidence. 30 1. Evidence that a person was in possession of one or more condoms or 31 other reproductive or sexual health device may not be admitted at any 32 trial, hearing, or other proceeding in a prosecution for [section33230.00] any offense, or an attempt to commit any offense, defined in 34 article two hundred thirty or section 240.37 of the penal law, or 35 section sixty-five hundred twelve of the education law, or any law, 36 local law or ordinance of a political subdivision of this state, or any 37 word, rule or regulation of any governmental instrumentality authorized 38 by law to adopt the same, for the purpose of establishing probable cause 39 for an arrest or proving any person's commission or attempted commission 40 of such offense, as evidence of prostitution or trafficking-related 41 activity. 42 2. "Reproductive or sexual health device" shall include any contracep- 43 tive or other tool used to prevent unwanted pregnancy or the trans- 44 mission of HIV or other sexually transmitted diseases, including but not 45 limited to male condoms, female condoms, lubricant, pre-exposure prophy- 46 laxis ("PrEP"), post-exposure prophylaxis ("PEP"), HIV anti-retroviral 47 medication, spermicide, hormonal methods, emergency contraception, 48 diaphragm, cervical cap, or sponge. 49 § 5. Paragraph (d) of subdivision 1 of section 160.10 of the criminal 50 procedure law is REPEALED. 51 § 6. Paragraph (c) of subdivision 1 of section 160.10 of the criminal 52 procedure law, as amended by chapter 762 of the laws of 1971, is amended 53 to read as follows: 54 (c) A misdemeanor defined outside the penal law which would constitute 55 a felony if such person had a previous judgment of conviction for a 56 crime[; or].A. 4273 3 1 § 7. The opening paragraph of subdivision 1, subdivision 2 and subdi- 2 vision 3 of section 160.55 of the criminal procedure law, the opening 3 paragraph of subdivision 1 as amended by chapter 359 of the laws of 4 2019, subdivision 2 as amended by chapter 476 of the laws of 2009 and 5 subdivision 3 as amended by chapter 249 of the laws of 1981 and renum- 6 bered by chapter 142 of the laws of 1991, are amended to read as 7 follows: 8 Regardless of the class of offense for which a person is initially 9 charged, upon the termination of a criminal action or proceeding against 10 a person by the conviction of such person of a traffic infraction or a 11 violation, other than [a violation of loitering as described in para-12graph (d) of subdivision one of section 160.10 of this article or] the 13 violation of operating a motor vehicle while ability impaired as 14 described in subdivision one of section eleven hundred ninety-two of the 15 vehicle and traffic law, unless the district attorney upon motion with 16 not less than five days' notice to such person or his or her attorney 17 demonstrates to the satisfaction of the court that the interests of 18 justice require otherwise, or the court on its own motion with not less 19 than five days' notice to such person or his or her attorney determines 20 that the interests of justice require otherwise and states the reasons 21 for such determination on the record, the clerk of the court wherein 22 such criminal action or proceeding was terminated shall immediately 23 notify the commissioner of the division of criminal justice services and 24 the heads of all appropriate police departments and other law enforce- 25 ment agencies that the action has been terminated by such conviction. 26 Upon receipt of notification of such termination: 27 2. A report of the termination of the action or proceeding by 28 conviction of a traffic violation or a violation other than [a violation29of loitering as described in paragraph (d) or (e) of subdivision one of30section 160.10 of this title or] the violation of operating a motor 31 vehicle while ability impaired as described in subdivision one of 32 section eleven hundred ninety-two of the vehicle and traffic law, shall 33 be sufficient notice of sealing to the commissioner of the division of 34 criminal justice services unless the report also indicates that the 35 court directed that the record not be sealed in the interests of 36 justice. Where the court has determined pursuant to subdivision one of 37 this section that sealing is not in the interests of justice, the clerk 38 of the court shall include notification of that determination in any 39 report to such division of the disposition of the action or proceeding. 40 When the defendant has been found guilty of a violation of harassment in 41 the second degree and it was determined pursuant to subdivision eight-a 42 of section 170.10 of this title that such violation was committed 43 against a member of the same family or household as the defendant, the 44 clerk of the court shall include notification of that determination in 45 any report to such division of the disposition of the action or proceed- 46 ing for purposes of paragraph (a) and subparagraph (vi) of paragraph (d) 47 of subdivision one of this section. 48 3. A person against whom a criminal action or proceeding was termi- 49 nated by such person's conviction of a traffic infraction or violation 50 other than [a violation of loitering as described in paragraph (d) or51(e) of subdivision one of section 160.10 of this chapter or] the 52 violation of operating a motor vehicle while ability impaired as 53 described in subdivision one of section eleven hundred ninety-two of the 54 vehicle and traffic law, prior to the effective date of this section, 55 may upon motion apply to the court in which such termination occurred, 56 upon not less than twenty days notice to the district attorney, for anA. 4273 4 1 order granting to such person the relief set forth in subdivision one of 2 this section, and such order shall be granted unless the district attor- 3 ney demonstrates to the satisfaction of the court that the interests of 4 justice require otherwise. 5 § 8. Section 841 of the executive law is amended by adding a new 6 subdivision 7-b to read as follows: 7 7-b. Take such steps as may be necessary to ensure that all police 8 officers and peace officers certified pursuant to subdivision three of 9 this section receive appropriate instruction regarding the evidentiary 10 prohibition set forth in section 60.47 of the criminal procedure law and 11 section forty-five hundred nineteen-a of the civil practice law and 12 rules relating to the use of condoms and other reproductive or sexual 13 health devices as evidence in certain trials, hearings or proceedings, 14 or as a basis for probable cause for arrest, including that unauthorized 15 seizure or confiscation of condoms and other reproductive or sexual 16 health devices is a breach of public policy. 17 § 9. The legislative law is amended by adding a new section 49 to read 18 as follows: 19 § 49. Requirement with respect to bills amending certain laws which 20 affect health and human rights. Whenever a committee favorably reports a 21 bill to amend articles two hundred thirty or section 240.37 of the penal 22 law, or, at the discretion of the voting majority of the committee, any 23 bill which, if passed, would increase or decrease the number of arres- 24 tees or pretrial or sentenced population of correctional facilities in 25 this state, a majority of the committee members voting may request that 26 a health and human rights impact statement be prepared. The legislature 27 shall by concurrent resolution of the senate and assembly prescribe 28 rules requiring health and human rights impact statements to accompany, 29 on a separate form, bills and amendments to bills after such bills have 30 been reported from committee. Health and human rights impact statements 31 shall be prepared before the bill is considered for final passage. The 32 statement shall indicate whether the bill would have a disparate impact 33 by race, ethnicity, religion, age, gender, gender identity or 34 expression, sexual orientation, immigration status, disability, or hous- 35 ing status composition of the arrestee and correctional facility popu- 36 lation and an explanation of that impact. Any impact statement printed 37 with or prepared for a bill is solely for the purpose of information, 38 summarization and explanation for members of the legislature and shall 39 not be construed to represent the intent of the legislature or either 40 chamber thereof for any purpose. Each impact statement shall bear the 41 following disclaimer: "The following health and human rights impact 42 statement is prepared for the benefit of the members of the legislature, 43 solely for purposes of information, summarization and explanation and 44 does not represent the intent of the legislature or either chamber ther- 45 eof for any purpose." 46 § 10. The legislative law is amended by adding a new section 83-n to 47 read as follows: 48 § 83-n. Legislative commission on health and human rights. 1. The 49 legislature hereby finds that promoting and protecting health and 50 respecting and fulfilling human rights are necessarily linked, and that 51 coordination between health and law enforcement efforts is central to 52 the effective provision of government services for the benefit of the 53 people of the state. 54 2. A legislative commission on health and human rights is hereby 55 established to examine, evaluate and make recommendations concerning 56 rights-based approaches to health and law enforcement interventions.A. 4273 5 1 The commission shall act as a mechanism for ongoing and meaningful 2 involvement of those who are or potentially could be affected by this 3 law, including, but not limited to, survivors of trafficking, people who 4 are or are profiled as being involved in the sex trades, communities of 5 color, lesbian, gay, bisexual and transgender people, and people in 6 custodial settings. The commission shall provide monitoring and expert 7 perspective to the legislature, promoting awareness of problems in real 8 time as they emerge, increase cooperation and collaboration between the 9 individuals and communities directly impacted and their legislators, and 10 allow legislators to share responsibility for successes and failures of 11 these initiatives. The commission shall make such recommendations as it 12 may deem necessary as to regulations, policies, programs, and proposed 13 legislation to provide an equitable system of providing for the public 14 safety while also protecting public health, to encourage the most effec- 15 tive use of state and local resources, to preserve the fiscal integrity 16 of both state and local government health systems and otherwise to 17 strengthen the fundamental human right to health. 18 3. The commission shall consist of ten representatives from organiza- 19 tions that promote advocacy by and for directly impacted communities. 20 From among the members so appointed, a chairperson and vice chairperson 21 shall be designated by the joint action of the chairpersons of the 22 senate and assembly health committees. Any vacancy that occurs in the 23 commission or in the chairmanship or vice chairmanship shall be filled 24 in the same manner in which the original appointment or designation was 25 made. 26 4. The commission in addition to the above mentioned powers shall have 27 all the powers and privileges of a legislative committee pursuant to 28 this chapter. 29 5. For the accomplishment of its purpose, the commission shall be 30 authorized and empowered to undertake any study, inquiry, survey, or 31 analysis it may deem relevant through its own personnel in cooperation 32 with or by agreement with any other public or private agency. 33 6. The commission may require and shall receive from any department, 34 board, bureau, commission, authority, office, or other instrumentality 35 of the state, and from any county, city, town or village of this state, 36 such facilities, assistance, and data, as it deems necessary or desira- 37 ble for proper execution of its powers and duties. 38 7. The commission may hold public or private hearings and shall have 39 full powers to subpoena witnesses and all records or data it shall deem 40 necessary or desirable pursuant to this chapter. 41 8. The members of the commission shall serve on a voluntary basis and 42 receive no compensation for their services. 43 § 11. Paragraph (f) of subdivision 4 of section 837 of the executive 44 law, as amended by chapter 169 of the laws of 1994, is amended and a new 45 paragraph (g) is added to read as follows: 46 (f) Accomplish all of the functions, powers, and duties set forth in 47 paragraphs (a), (b), (c) and (d) of this subdivision with respect to the 48 processing and disposition of cases involving violent felony offenses 49 specified in subdivision one of section 70.02 of the penal law[.]; and 50 (g) Accomplish all of the functions, powers, and duties set forth in 51 paragraphs (a), (b), (c) and (d) of this subdivision with respect to all 52 chapters of law resulting from legislative bills that have been subject 53 to the provisions of sections forty-nine and eighty-three-n of the 54 legislative law. The division shall present to the governor, the tempo- 55 rary president of the senate, the minority leader of the senate, the 56 speaker of the assembly and the minority leader of the assembly an annu-A. 4273 6 1 al report containing the statistics and other information relevant to 2 this subdivision. 3 § 12. If any provision of this article or the application thereof to 4 any person, circumstances, or political subdivision of this state is 5 adjudged invalid by a court of competent jurisdiction such judgment 6 shall not affect or impair the validity of the other provisions of the 7 article or the application thereof to other political subdivisions of 8 this state, persons, and circumstances. 9 § 13. This act shall take effect on the first of March next succeeding 10 the date on which it shall have become a law; provided, however that the 11 amendments to article 5-A of the legislative law made by section ten of 12 this act shall not affect the repeal of such article and shall be deemed 13 repealed therewith.
