The many changes in the Sexual Assault Reform Act (SARA) are summarized in the following Manual prepared by the New York Prosecutor's Training Institute (NYPTI) and the NY District Attorney's Association Sexual Offense Sub-Committee.  

 NYPTI can be reached at 150 State Street, 5th Floor, Albany, New York  12207.  518-432-1100;  fax 518-432-1180.

SUBSTANTIVE LAW CHANGES

 

DRUG FACILITATED SEXUAL ASSAULT

 

FACILITATING A SEX OFFENSE WITH A CONTROLLED SUBSTANCE: SARA creates a new offense in Penal Law § 130.90. A person is guilty of facilitating a sex offense with a controlled substance when he or she: 1) knowingly and unlawfully possesses a controlled substance and administers such substance to another person without such person’s consent and with intent to commit against such person conduct constituting a felony defined in [Penal Law Article 130]; and 2) commits or attempts to commit such conduct. (D Felony)

 

CONSECUTIVE SENTENCE PERMISSIBLE: Adds a new subdivision 2-f to Penal Law § 70.25, which provides that a court may impose consecutive sentences for facilitating a sex offense with a controlled substance and the Article 130 substantive offense arising from the same criminal transaction.

 

PENALTY ENHANCEMENT FOR COMMITTING SEX CRIME UPON VICTIM WHO IS "MENTALLY INCAPACITATED": Upgrades offenses committed against a "mentally incapacitated" victim to "D" felony, Rape 2°, Penal Law § 130.30 (2); Sodomy 2°, Penal Law § 130.45 (2).

 

AGGRAVATED SEXUAL ABUSE 3°: Expands Penal Law § 130.66, by adding a new subdivision (2) to cover instances where this crime is committed upon a "mentally incapacitated" victim. (D Felony)

 

RAPE 3° [Penal Law § 130.25(1)] and SODOMY 3°: [Penal Law § 130.40(1)], are unchanged and may be charged additionally or in the alternative, in cases where the victim is incapable of consent by reason of some factor other than being less than 17 years old. (E Felonies)

 

NOTE: People v. DiNoia, 105 A.D.2d 799, 481 N.Y.S.2d 738 (2d Dept 1984), prosecution under "mentally incapacitated" theory need not specify precise substance utilized or whether defendant administered the substance; see also, Rapetti v. James, 784 F.2d 85 (2nd Cir. 1986).

 

GHB GAMMA HYDROXYBUTYRIC ACID: Amends New York’s schedule of controlled substances, making its possession and sale illegal by adding a new paragraph 4 to make GHB a schedule I drug. The Legislature will provide the weight (amount) it will take to be a schedule I via an amendment to be added later. GHB is listed separately in Public Health Law § 3306, Schedule I (e), ¶ 4 and Schedule III (c), ¶ 12. Unless amended, this dual listing may cancel legislative intent to make GHB illegal.

 

 

 

COLLECTION AND TESTING FOR DATE RAPE DRUGS IN VICTIM’S BODY

 

1. RECOGNIZING THE VICTIMS: There is a threshold to determine those who are date rape drug victims. The symptoms are often overlooked. Victims of date rape drug intoxication may exhibit signs of confusion, memory loss, dizziness, drowsiness, slurred speech, and impaired motor skills.

 

2. PROMPT COLLECTION: Proper storage and testing by a qualified laboratory are critical features to proper detection of drugs frequently used to facilitate a sexual assault.

 

a. The sooner the better. Difficult to detect after 72 hours.

b. Most hospitals have victim’s consent form. Samples will be tested for "recreational drugs" as well.

c. Urine sample. Screw-top plastic container for urine sample is not currently part of the sexual offense evidence collection kit. Urine sample must be kept refrigerated.

d. Blood sample should be in gray-top tube.

 

3. TESTING:

a. Have laboratory protocol in place.

b. In NYC, sample is first sent to the Office of the Chief Medical Examiner’s Toxicology Lab for general screening. Only upon the consent of the DA’s Office is the specimen subsequently sent to a private laboratory, National Medical Services in Pennsylvania for GHB and other "date rape drug" testing. It costs the DA’s office $350 for each test performed by the private laboratory.

 

RAPE 3° & SODOMY 3°: SARA creates a new crime in Penal Law §130.25, and Penal Law §130.40. "He or she engages in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent." Parallel change in Sodomy. (E Felonies)

 

"SOME FACTOR OTHER THAN INCAPACITY TO CONSENT": e.g. NOT: -- less than 17; or mentally disabled; or mentally incapacitated; or physically helpless; or committed to the custody of state or local corrections where actor is any employee; or committed to or placed with office of children and family services where actor is an employee; or a client or patient where actor is a health care provider.

 

NEW DEFINITION OF "LACK OF CONSENT": Penal Law §130.05(2) provides: "in addition to forcible compulsion, circumstances under which at the time of the act of intercourse, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances."

 

NOT LESSER INCLUDED OF RAPE 1° OR SODOMY 1°: Under the new Act, Rape 3° and Sodomy 3° are not a lesser included offense of Rape 1° or Sodomy 1° or any other offense. (C.P.L.§300.50(6)) As an exception to this rule, Rape 3° or Sodomy 3° MAY be submitted as a lesser included when a) a reasonable view of the evidence would support a finding and b) both parties consent to it's submission.

 

EXAMPLE: A takes B to the movies and dinner. A takes B home to his apartment for "coffee." Necking ensues, B says stop and begins to cry; A continues and ignores B's protestations, managing to pull her clothes off and have intercourse with B, all the while B is saying NO! B is shocked and frozen with fear, so she isn't struggling once intercourse takes place. This case can be prosecuted under the new law.

 

 

SEXUAL ABUSE BY HEALTH CARE PROVIDERS

 

"INCAPACITY TO CONSENT": Rape 3°, Penal Law §130.25; Sodomy 3°, Penal Law §1.30.40; Aggravated Sexual Abuse 4°, Penal Law §130.65-a; Sexual Abuse 3°, Penal Law §130.55. Creates a new crime based on patient's "incapacity to consent." A patient of a health care provider or mental health care provider is considered incapable of consent under certain circumstances. The SARA legislation punishes the health care provider who has inappropriate sexual contact with patients. Rape 3° and Sodomy 3° (E Felonies).

 

HEALTH CARE PROVIDER DEFINED: in Penal Law §130.00(12) as meaning any person who is, or is required to be, licensed or registered or holds himself or herself out to be licensed or registered, or provides services as if he or she were licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry under article one hundred thirty-one, one hundred thirty-two, one hundred thirty-three, or one hundred forty-one of the Education Law.

 

MENTAL HEALTH CARE PROVIDER DEFINED: This phrase is defined in Penal Law §130.00(13) as meaning "any person who is, or is required to be, licensed or registered, or holds himself or herself out to be licensed or registered, or provides mental health services as if he or she were licensed or registered in the profession of medicine, psychology or social work under article one hundred thirty-one, one hundred fifty-three, or one hundred fifty-four of the Education Law."

 

CLIENT OR PATIENT: These terms seem to have their ordinary meaning but are not specifically defined. The act provides, in Penal Law §130.05(3)(h), that such persons are incapable of consent where a health care provider or mental health care provider charged with Rape 3°, Penal Law §130.25; Sodomy 3°, Penal Law §1.30.40; Aggravated Sex Abuse 4°, Penal Law §130.65-a; Sexual Abuse 3°, Penal Law §130.55., and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination.

 

DEFENSES AND/OR LIMATATIONS AVAILABLE TO HEALTH CARE PROVIDERS: Penal Law §130.10, as amended, now defines defenses and/or limitations available for health care providers under these circumstances. They are: a) Penal Law §130.10(2); Conduct performed for a valid medical or mental health care purpose shall not constitute a violation of any section of this article in which incapacity to consent is based on the circumstances set forth in §130.05(3)(h); and b) consent: Penal Law §130.10(3); In any prosecution for the crime of Rape 3° as defined in §130.25, Sodomy 3° as defined in §130.40, Aggravated Sexual Abuse 4° as defined in § 130.65-a, or Sexual Abuse 3° as defined in §130.55 in which incapacity to consent is based on the circumstances set forth in §130.05(3)(h); it shall be an affirmative defense that the client or patient consented to such conduct charged after having been expressly advised by the health care or mental health care provider that such conduct was not performed for a valid medical purpose.

 

 

VICTIM ASSISTANCE

 

RAPE CRISIS INTERVENTION AND PREVENTION PROGRAM ACT OF 2000: Building upon New York’s established Rape Crisis Intervention system, the act created a new Public Health Law Article 6-A, §§ 695 through 695-e. Defines services provided, such as counseling, community prevention, hotline, recruitment and training programs, accompaniment services and referrals. Authorizes the Department of Health to contract with local programs to provide services; to provide technical assistance to programs; to adopt rules and regulations and to evaluate programs every three years. No specific funding formula for programs was provided; thus, funding is dependent upon yearly appropriations. The department shall comprehensively evaluate each program periodically and shall monitor compliance with the act. Reports due to the Governor and Legislature 1/15/03 and every 3 years thereafter.

 

SEXUAL ASSAULT FORENSIC EXAMINER PROGRAMS: Creates a new subdivision in Public Health Law § 2805-i, whereby the Commissioner of the Department of Health, after consultation with DCJS, may designate consenting hospitals as sites for sexual assault forensic examiner programs. Sets forth criteria for selection of those sites, with emphasis on providing "as many state residents as possible ready access to the sexual assault forensic examiner program". Articulates basic standards for victim treatment, such as availability of services to victim within 60 minutes of arriving at the hospital; exam to be conducted promptly in a private room; services rendered by specially trained nurse practitioners, registered nurses or doctors, who are available 24 hours a day every day of the year; prompt examination and availability of a shower and change of clothes after examination is completed. Follow up counseling, medical treatment and referrals should be provided. Does not affect any program through which a trained NP, RN or physician is providing appropriate forensic and related services (Physician Assistants and Nurse Midwives were left out of the language of this provision. An amendment is planned to remedy the problem by adding them.) Amends 2805(i) to add a (b) to require the Commissioner of Health to report to the Governor, Legislature and others by 11/30/02 on the efficacy of the SAFE programs.

 

SEXUAL OFFENSE EVIDENCE COLLECTION KITS: SARA amends Public Health Law § 2805-i, subd. 4-a:.effective April 1, 2001, hospitals providing treatment to sexual assault victims are eligible to receive from DCJS, at no cost, sexual offense evidence collection kits.

 

CRIME VICTIMS BOARD ("CVB"): Amends Executive Law § 631(1) to extend the time frame in which an incest victim needs to report to a criminal justice agency (in order to receive reparations or Crime Victim Board Awards) to a reasonable time. It also expands the definition of "Criminal Justice Agency" for such Victim Board Awards to include Family Court, Governmental agencies responsible for child/or adult protective services and to any medical facility that provides a forensic physical exam for rape and sexual assault victims. Victim must still file a claim with CVB for reimbursement.

 

MISCELLANEOUS SEX OFFENSES

 

FORCIBLE TOUCHING: The Act creates a new offense, Penal Law §130.52. A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person: 1) for the purpose of degrading or abusing such person; or 2) for the purpose of gratifying the actor’s sexual desire. For the purpose of this section, forcible touching includes the squeezing, grabbing, or pinching of such other person’s sexual or other intimate parts. (A Misdemeanor)

 

MARITAL EXEMPTION: The marital exemption contained in various sections of Article 130 has been eliminated. The language of the statute now conforms to the law handed down by the Court of Appeals in People. v. Liberta, 64 NY2d 152 (1984). Nonetheless, technical amendments to the marital exemption repeal may be forthcoming. For example, in its current construct, it would be Rape 3° for a 21 year old to have sexual intercourse with his or her 16 year old spouse.

 

CONSENSUAL SODOMY: Penal Law §130.38 has been repealed and no longer on the books as a crime.

 

GENDER NEUTRAL: Amends the following making the language of the statute gender neutral: Rape 1°, 2° and 3°; Sexual Misconduct, Sodomy 1°, 2° and 3°: and Sexual Abuse 1°, 2° and 3°. It is anticipated that an amendment will be added making all sex offenses gender neutral.

 

STATUTORY AGE CHANGES

 

RAPE 1°: The Act amends Penal Law §130.35 to include a new subsection (4). This raises the age for which first degree crimes can be charged to include situations where the victim is less than 13 and the defendant is 18 or more. (B Felony)

 

RAPE 2°: SARA amends Penal Law §130.30 by: (1) eliminating the marital exemption, and (2) raising the statutory rape age from less than 14 to less than 15 years old. The Act also creates an affirmative defense to the statutory rape provision if the defendant is less than four years older than the victim. Creates a new offense where the victim is incapable of consent by reason of being mentally disabled of mentally incapacitated. (D Felony)

 

RAPE 3°: Amends Penal Law §130.25 to delete the requirement that the victim and actor not be married and creates a new subdivision (3) where the lack of consent is by reason of some factor other than incapacity to consent. (The ages remain the same.) (E Felony)

 

SODOMY 1°: Amends Penal Law §130.50 to include a new subsection (4). This raises the age for which first degree crimes can be charged to include situations where the victim is less than 13 and the defendant is 18 or more. (B Felony)

 

SODOMY 2°: SARA amends Penal Law § 130.45 to raise the age of the victim from less than 14 to less than 15. There is an affirmative defense if the defendant is less than four years older than the victim. Creates a new offense where the victim is incapable of consent by reason of being mentally disabled of mentally incapacitated. (D Felony)

 

SODOMY 3°: The Act amends Penal Law § 130.40 by adding a provision where the defendant engages in deviate sexual intercourse with another person without such person’s consent and the lack of consent is by reason of some factor other than incapacity to consent. (The ages remain the same.) (E Felony)

 

COURSE OF CONDUCT AGAINST A CHILD 1°& 2°: Penal Law §§130.75 & 130.80 are both amended by adding a new subdivision (b) to the first sections. This raises the age for which crimes can be charged to include situations where the victim is less than 13 and the defendant is 18 or more. The previously the victim’s age was less than 11. (B& D Felonies respectively)

 

USE OR PROMOTION OF A CHILD IN A SEXUAL PERFORMANCE: Amends Penal Law §§263.05 & 263.15 to when the child is under the age of 17 instead of under 16. The language of the affirmative defense, proof of age and definition sections are all also amended to reflect these changes. (C &D Felonies respectively) For the crime of Possessing a Sexual Performance by a child the threshold age of the victim remains the same: under 16: Penal Law §263.16.

 

OBSCENE SEXUAL PERFORMANCE BY A CHILD: Amends Penal Law §263.10 to when the child is under 17 instead of under 16. The language of the affirmative defense, proof of age and definition sections are all also amended to reflect these changes. (D Felony) For the crime of Possession of an Obscene Sexual Performance by a Child the threshold age of the victim remains the same: under 16: Penal Law §263.11.

 

 

SWEARABILITY CHANGES: Subdivision (2) of Section 60.20 of the Criminal Procedure Law is amended and the age of presumptive swearability is lowered from 12 years of age to nine years of age. A child less than nine years of age may still testify if the court is satisfied that the child understands the nature of an oath. A definition of understanding the nature of an oath has also been added to subsection (2). The statute now states that a witness understands the nature of an oath if he or she:

1. Appreciates the difference between the truth and falsehood,

2. The necessity for telling the truth, and

3. The fact that a witness, who testifies falsely, may be punished.

This definition was added to Section 60.20 as a means of a clarification and to ensure that swearability determinations are based upon a more uniform standard.

 

 

MENTALLY DISABLED DEFINED: Subdivision 3 (b) of Section 130.05 of the Penal Law is amended and the term mentally defective is changed to mentally disabled. This change is made throughout the sexual offense article.

RAPE 2° AND SODOMY: 2°: Rape 2° and Sodomy 2° are amended and new subsection two’s are added which elevate sexual intercourse and deviate sexual intercourse with a mentally disabled or mentally incapacitated victim from an E felony to a D felony.

SEX OFFENSE - DEFENSE AND CORROBORATION: Sections 130.10 and 130.16 remain unchanged with respect to mentally disabled victims, except for changes in language and gender neutrality as noted above.

AGGRAVATED SEXUAL ABUSE 4°: A new section, (§130.65-a) has been added to the statute that will enable Aggravated Sexual Abuse to be charged when no force is used on mentally disabled victims or the victim is not also physically helpless or less than eleven. (E Felony)

Subsection (a) of §130.65-a applies to situations where a foreign object is inserted in the vagina, urethra, penis or rectum and the victim is incapable of consent by reason of some factor other than being less than 17.

Subsection (b) of §130.65-a applies where there is an insertion of the finger causing physical injury and the victim is incapable of consent by reason of some factor other than being less than 17. Subsection 2 of §130.65-a exempts conduct performed for a valid medical purpose from this section.

AGGRAVATED SEXUAL ABUSE 3°: A new subsection (2) is added to Penal Law §130.66 and applies to situations where a foreign object is inserted and causes physical injury in victims who are incapable of consent by reason of being mentally disabled or mentally incapacitated. The previous subsection (2) is now renumbered to subsection (3).

 

RANGHELLE REPEALED: A new CPL §240.75 is added to provide that the failure of a prosecutor to disclose certain statements under the discovery rules does not require a new pretrial hearing or that the conviction be overturned unless the defendant shows there is a reasonable possibility that non-disclosure "materially contributed" to the result of the trial or proceeding. This language is in response to the difficulties faced by prosecutors since People v. Ranghelle, 69 N.Y.2d 56 (1986).

 

 

SENTENCING AND SUPERVISION LAW CHANGES

A. New Law contained in Subd. 3 of P.L.§65.00

B. "Sexual Assault" defined

1. Sex Offenses - P.L. Article 130

2. Sexual Performance By A Child-P.L. Article 263

3. Incest-P.L. Article 255. Section 25

4. Attempts to commit any of the above

C. Time Periods

1. felony convictions - extension from 5 to 10 years

2. misdemeanor convictions

a. "A" - extension from 3 to 6 years

b. "B" - 1 year probation

c. unclassified misdemeanor

(i) 3 years probation, if authorized sentence is >3 months

(ii) otherwise 1 year

D. Revocation of Probation

1. revert to remaining period of original probation, or

2. 1 year, whichever is greater

 

A. Information to the Public

1. "900" Preamble (Correction Law §168-p new subd. 2)

a. reduction to 50 cents for this call

b. statement that an information package is available to the public

(i) Q & A about SORA

(ii) sex abuse and abduction prevention materials

2. new para(a) subdiv.(1) Correction Law §168-b requires sex offenders to provide additional information to the register

a. any internet accounts "belonging to such offender" and any internet screen names "used by such offender"

b. identifying information now required in addition to previously required, name, alias, DOB, sex, race, height, weight, eye color, driver’s license number and home address

 

A. New Law

1. new subd. 9 of Sec. 272, Correction Law and

2. new Subd.14 of Executive Law 259-c subdiv.13

3. Subd. 4-a, sec. 7, §65.10, Penal Law

B. Mandatory condition of release

C. Conditions required

4. victim less than 18 and

5. conviction for one of the following offenses:

a. Article 130-Sex Offenses

b. Article 235-Obscenity and Related Offenses

c. Article 263-Sexual Performance By A Child

d. Article 255-Offenses Affecting the Marital Relationship Section 25 Incest, and

3. release under one of the following conditions:

a. probation

b. conditional discharge pursuant to P.L. §70.40

c. paroled or conditionally released after serving sentence

D. Such sentenced offender shall refrain from

1. "knowingly entering into or upon any school grounds" or

2. "any other facility or institution primarily used for the care or treatment of persons under the age of eighteen while one or more of such persons under the age of 18 are present."

a. PL.§220.00(14) defines, school grounds

"School grounds" means

(a) in or on or within any building, structure, athletic playing field, playground or land contained within the real property boundary line of a public or private elementary, parochial, intermediate, junior high, vocational, or high school, or

(b) any area accessible to the public located within one thousand feet of the real property boundary line comprising any such school or any parked automobile or other parked vehicle located within one thousand feet of the real property boundary line comprising any such school.

For the purpose of this section an "area accessible to the public" shall mean sidewalks, streets, parking lots, parks, playground, stores and restaurants.

b. "Facility or institution" not defined in the Statute

3. exceptions

a. ex offender is a registered student, participant or employee or has a family member enrolled therein

(i) written authorization from probation or court AND

(ii) superintendent or chief administrator of facility AND

(iii) purpose for presence is authorized by probation, court and superintendent

 

 

A. Mandatory: "superior court may NOT order recognizance or bail or permit a defendant to remain at liberty...after conviction." (emphasis added)

B. New law amends C.P.L. §530.40(3) and C.P.L.§530.45(1)

C. Application

1. Conviction

2. Class B or C felony

3. Article 130-Sex Offenses and Attempts

4. Crime victims <18

A. Amends C.P.L.§530.50

1. revokes judge’s authority to order bail or recognizance during pendency of appeal

2. convictions applicable

a. other than D or Class E

b. Article 130

c. attempts and completed felonies

d. victim <18 years old

A. New C.P.L. §200.62

1. applicable convictions

a. felonies only

b. P.L. Article 130

c. completed and Attempts

d. victim <15 at the time of the commission of the crime

2. mechanism for discretionary enhanced sentencing

a. filing

( i) indictment MAY be accompanied by a special information filed by the District Attorney with the court containing above allegations

(ii) need not "file" when age of the victim is element of offense charged in indictment

b. arraignment of defendant

prior to trial, or after the commencement of trial but before

the close of the People’s case

(i) in the absence of the jury

(ii) defendant admits-deemed established

(iii) defendant can plead guilty without admitting allegations in special information of new subd.(14) C.P.L.§220.60-hearing MUST be set

(iv) defendant denies or remains mute, then People’s burden

(v) proof BRD before the jury or if jury waived then before the court

(vi) proof that victim was less than 15 at the time of commission or attempted commission

3. decision on predicate status made after verdict regarding offense

(i) determination is binding "in any future proceeding" unless vacated or reversed

 

1. "Sexual assault against a child" defined - Adds new P.L. § 70.07:

a. Article 130.00 sexual conduct

b. attempts and completed crimes

c. < 15 year old victim

d. 10 years extended to 15 years

e. B Felony with B or C predicate, indeterminate sentence, maximum is life, minimum is 15-25

f. C Felony with B or C predicate, determinate sentence of 12 years not to exceed 30 years or indeterminate sentence, maximum life and minimum15-25.

g. e. C felony with a D or E predicate, determinate sentence of minimum 10 years, maximum 25 years

h. D felony with felony predicate, determinate sentence of minimum 5 years, maximum 15 years

i. E felony with felony predicate, determinate minimum 4 years, maximum 12

2. Procedure – Adds new C.P.L.§400.19

a. Applicability: both the underlying and instant conviction must be for "sexual assault upon a child"

b. discretionary filing of statement by prosecutor indicating date and place of each alleged predicate

c. service upon defendant of prosecutor’s statement

d. hearing required unless uncontroverted

e. court must enter finding

f. hearing

(i) before the court without a jury

(ii) burden of proof upon the People

(iii) standard of proof BRD

(iv) trial evidentiary rules apply

(v) People need not prove defendant knew child was <15

(vi) defendant can challenge on the grounds that the underlying conviction was unconstitutionally obtained

(vii) failure of defendant to challenge conviction constitutes waiver unless good cause show

(viii) this finding is binding in any future proceeding