S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1828
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 13, 2015
                                      ___________
       Introduced by M. of A. GUNTHER, GALEF, BENEDETTO, JAFFEE, HOOPER, CLARK,
         DUPREY,  McKEVITT, MONTESANO, GRAF, STEC, TENNEY -- Multi-Sponsored by
         -- M. of A. BARCLAY, CRESPO, CROUCH, DAVILA,  GIGLIO,  GOODELL,  OAKS,
         PERRY,  RIVERA,  THIELE  -- read once and referred to the Committee on
         Codes
       AN ACT to amend the penal law, in relation to providing that an  elemen-
         tary  or  secondary school student shall be incapable of consenting to
         sexual conduct with a school employee
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1. Section 130.00 of the penal law is amended by adding a new
    2  subdivision 14 to read as follows:
    3    14. "SCHOOL EMPLOYEE" SHALL MEAN ANY PERSON DEFINED AS  AN  "EMPLOYEE"
    4  OR  "VOLUNTEER"  PURSUANT  TO  SECTION ELEVEN HUNDRED TWENTY-FIVE OF THE
    5  EDUCATION LAW.
    6    S 2. Paragraph (i) of subdivision 3 of section  130.05  of  the  penal
    7  law, as added by section 2 of part G of chapter 501 of the laws of 2012,
    8  is amended and a new paragraph (j) is added to read as follows:
    9    (i)  a  resident  or  inpatient  of  a  residential facility operated,
   10  licensed or certified by (i) the  office  of  mental  health;  (ii)  the
   11  office  for  people with developmental disabilities; or (iii) the office
   12  of alcoholism and substance abuse services, and the actor is an employee
   13  of the facility not married to such resident or inpatient. For  purposes
   14  of  this  paragraph,  "employee" means either: an employee of the agency
   15  operating the residential facility, who knows or reasonably should  know
   16  that  such  person  is  a resident or inpatient of such facility and who
   17  provides direct care services,  case  management  services,  medical  or
   18  other  clinical services, habilitative services or direct supervision of
   19  the residents in the facility in which the resident resides; or an offi-
   20  cer or other employee, consultant, contractor or volunteer of the  resi-
   21  dential facility, who knows or reasonably should know that the person is
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03398-01-5
       A. 1828                             2
    1  a  resident of such facility and who is in direct contact with residents
    2  or inpatients; provided, however, that the provisions of this  paragraph
    3  shall  only  apply  to  a  consultant, contractor or volunteer providing
    4  services pursuant to a contractual arrangement with the agency operating
    5  the  residential  facility  or,  in  the  case of a volunteer, a written
    6  agreement with such facility, provided that the person received  written
    7  notice  concerning  the  provisions of this paragraph; provided further,
    8  however, "employee" shall not include  a  person  with  a  developmental
    9  disability who is or was receiving services and is also an employee of a
   10  service provider and who has sexual contact with another service recipi-
   11  ent who is a consenting adult who has consented to such contact[.]; OR
   12    (J) A STUDENT AT AN ELEMENTARY OR SECONDARY SCHOOL, AND THE ACTOR:
   13    (I) IS A SCHOOL EMPLOYEE AT THE SAME SCHOOL SUCH STUDENT ATTENDS, AND
   14    (II)  IS EIGHTEEN YEARS OF AGE OR OLDER AND MORE THAN FOUR YEARS OLDER
   15  THAN SUCH STUDENT AT THE TIME OF THE ACT, AND
   16    (III) IS NOT MARRIED TO SUCH STUDENT, AND
   17    (IV) KNOWS OR REASONABLY SHOULD KNOW THAT SUCH PERSON IS A STUDENT  AT
   18  SUCH SCHOOL, AND
   19    (V) HE OR SHE IS NOT A STUDENT AT THE SAME SCHOOL.
   20    S 3. This act shall take effect on the first of November next succeed-
   21  ing the date on which it shall have become a law.