WBASNY Responds to the Women’s Agenda Portion of the Governor’s Budget

March 13, 2018

Re: NY State Fiscal Year 2018-19 Executive Budget Proposal

The Women’s Bar Association of the State of New York (“WBASNY”), appreciates the Governor’s objective to address the numerous challenges women face in our society. As an organization comprised of 4,400 attorneys and judges across the state in private practice, government, academia and the courts dedicated to the advancement of women in law and society, we share that objective. WBASNY members and leadership have reviewed the “Women’s Agenda” portion of the Budget, as well as other portions of the budget proposal that we believe would impact women and children in the law and society. Our positions and discussion on these sections are addressed below:

Women’s Agenda

Part A – Comprehensive Contraceptive Coverage Act

WBASNY supports this Part which would codify in state law access to contraception. It is widely accepted that birth control is highly effective at reducing unintended pregnancy, which may have negative health consequences for both women and children. The ability to plan and space pregnancies through the use of birth control keeps New York women healthy and in a position to make decisions for their future.

Part B – Codify Roe v. Wade into State Law to ensure that women can make personal healthcare decisions.

WBASNY supports this Part which would codify in state law the U.S. Supreme Court decision, Roe v. Wade to ensure the full rights of women to make personal health care decisions. The State of New York recognized the importance of protecting this right by enacting its abortion laws in 1970, and the United States Supreme Court solidified this protection when it decided Roe v Wade three years later. However, the New York law which was codified in the criminal law, has not been updated to reflect this Supreme Court decision.

Part C – Establish the Maternal Mortality Review Board.

WBASNY supports the intent of this part which would establish in the Department of Health a maternal mortality review board to review maternal deaths, assess the cause of death and factors leading to death and preventability for each maternal death reviewed and to develop strategies for reducing the risk of maternal mortality, and to assess and review maternal morbidity. WBASNY supports the intent of establishing such a review board to address this significant issue and offers the following recommendations:

Ensure that information from the review board does not create a “standard of care” burden of proof to be used in any action of any kind in any court or before any other tribunal, board, agency or person; and
Maternal demise as a consequence of deliveries by midwives or home-birthing should be included in the work being conducted by the review board.

Part D – Require the State Board of Medicine to include experts in women’s health and reducing health disparities.

WBASNY supports this Part and agrees that adding experts in women’s health and reducing health disparities would be beneficial to focus much needed attention in these areas of health care.

Part E – Remove Firearms from Domestic Abusers.

WBASNY supports this Part which would remove firearms from abusers who have been convicted of a misdemeanor crime of domestic violence.

Part F – End Sextortion and Revenge Porn.

WBASNY supports this Part in concept but offers the following concerns:

First, WBASNY is concerned about the impact on children who could be convicted of these crimes, including the fact that such children would have to register as sex offenders for the rest of their lives. There is no age requirement for the defendant. A younger or same age defendant as the victim, can be charged with this crime based upon what may be a romantic relationship in which the parties are exploring. Children do things without understanding the actual consequences. The prosecution of children for being children is a great concern.
Second, WBASNY is concerned about the intent element. The intent of the perpetrator to satisfy his or her own sexual gratification would be irrelevant. There are a number of motives for using sextortion against another person that are not connected to the sexual feelings or desires of the perpetrator. It could be done for financial gain, to humiliate or punish the victim, or to obtain coercive control over the victim. The intent element as worded could result in acquittals.
Third, WBASNY is concerned about the unlawful publication of sexual images. The requirement that the prosecution prove the intent to harm or cause serious emotional distress to another may result in the victim’s reputation and the perpetrator’s opinion of the victim becoming the focus of the case rather than the act committed by the perpetrator. The intent to cause harm is extremely difficult to prove in this type of case. In addition, having to show the victim suffered serious emotional distress places the burden on the victim, which is improper.
Also, the dissemination of sexually-explicit images without the victim’s consent, the abuser continues to wield power over the victim. To protect victims from continued abuse and to assist them in establishing healthy lives, New York should hold offenders accountable for the images they post without the depicted individual’s consent.

The legislation should address how to proceed when the individual initially consents to the posting of such images, and subsequently withdraws such consent. This is far too common among the children who would be prosecuted under this bill, during their exploration, dating and conflict issues.

Finally, WBASNY suggests creating a civil cause of action to empower victims to seek compensation for the harm suffered. A sample for this suggestion is the New York City Council bill in November 2017 which outlawed the non-consensual dissemination of intimate images that includes a civil cause of action which provides a victim the ability to seek just compensation.

Part G – Extends the Storage Timeline for Forensic Rape Kits at Hospitals.

WBASNY opposes the limited storage timeline in this Part and suggests that the timeline be extended to match the timeline in the Child Victims Act section of the Executive Budget (Part P of Public Protection and General Government Article VII budget bill). WBASNY also suggests chain of custody, proper storage and funding be addressed in the legislation.

Part H – Extend Anti-discrimination Protections to Public Schools.

WBASNY supports this Part which would amend the definition of educational institution to include both public and private schools to clarify that all students are afforded protection against discrimination.

Part I – Amending various laws to combat sexual harassment in the workplace.

Subpart A – WBASNY supports this Subpart which would require that any contractor that does business with the state to report the number of sexual harassment violations and non-disclosure agreements executed by the contractor. The contractor must also report on its training practices related to sexual harassment prevention.
Subpart B – WBASNY supports this Subpart which would prohibit an employer from requiring, as a condition of employment, an employee to sign a written contract restricting his or her ability to seek justice in any forum relating to unlawful discriminatory practices based upon sexual harassment.
Subpart C – WBASNY strongly opposes this Subpart which would prevent taxpayer funds from being used for settlements against individuals relating to sexual assault and harassment, and to ensure such individuals are held accountable for their conduct. Victims of sexual harassment should be entitled to the same rights as other victims of State employee wrongful conduct. In addition, the State should not be immune as the employer to claims of sexual harassment when private employers are liable. We recognize the intent is to disincentivize harassing conduct. However, WBASNY is concerned it will have the unintended consequence of victimizing someone who was already subjected to sexual harassment by removing the ability to collect due compensation.
WBASNY recommends allowing the State to continue to pay all or part of a judgment or settlement award to the claimant from any state or legislative accounts or funds and require the employee who committed or is alleged to have committed the violations to personally reimburse the State or in the alternative, the judgment can be repaid from any State earned pension of the employee. WBASNY also recommends that a judgment under this Subpart should not be dischargeable in bankruptcy.

Subpart D – WBASNY supports this Subpart which would prohibit public entities from entering into sexual harassment or assault settlements that include non-disclosure clauses, unless it is the express preference of the victim.
Subpart E – WBASNY supports this Subpart which would establish a unit within the Joint Commission on Public Ethics to receive and investigate complaints of sexual harassment and establish civil penalties for those found liable for such conduct.
Subpart F – WBASNY supports the intent of this Subpart which would establish uniform standards for sexual harassment policies for all branches of state and local governments. However, WBASNY offers the following recommendations:
– WBASNY recommends the time frame for an investigation should not be permitted to be extended for more than 30 days (i.e. for a total investigation time frame of 120 days) with a decision and action taken within 30 days of the completion of the investigation.
– WBASNY recommends the annual required interactive training be at least two hours of live training because live training is more effective and requiring the posting of anti-sexual harassment posters in the workplace.

Part J – Implement new computer science education standards as part of the “Women’s Agenda” for New York.

WBASNY supports this Part which would implement new computer science education standards by establishing a working group of educators, industry experts, institutions of higher education and employers to review, develop or adapt existing frameworks for model kindergarten through grade 12 computer science standards.

Part K – Implement the “Be Aware, Be Informed” learning module.

WBASNY supports this Part which would implement the “Be Aware, Be Informed” awareness, prevention and education program.

Part L – Require public schools serving students in grades 6 through 12 to provide free feminine hygiene products in restrooms.

WBASNY supports this Part which would require public schools serving students in grades 6 through 12 to provide free feminine hygiene products in restrooms.

Part M – Equal Access to Diaper Changing Stations in Public Restrooms.

WBASNY supports this Part which would establish standards that would ensure diaper changing stations are available for use by both male and females.

Public Protection and General Government, Article VII

Part K – Remove unnecessary bars on licensing and employment for people with convictions.

WBASNY supports this Part which would update licensing restrictions for people with convictions.

Part N – Streamlining the Subpoena Process for Cases of Online Sexual Abuse of Children.

WBASNY opposes this section which would establish administrative subpoena authority regarding investigations of online offenses against minors. Individual rights under the 4^th Amendment would be curtailed under this Part. The current statutes that provide for the Search Warrant Applications and Subpoena Process ensure the protection of an individual’s 4^th Amendment rights. WBASNY recognizes and agrees that minors should be protected against online predators. However, this Part implicates very intrusive privacy violations. In addition, this Part would relieve the prosecutor of the obligation to provide strong factual allegations rather than “investigative hunches.” Moreover, WBASNY has concerns about providing the Superintendent of State Police the authority to review and authorize such administrative subpoenas rather than by a Supreme Court Justice or Criminal Court Judge.

Part P – Child Victims Act

Elimination of Statute of Limitations for Prosecution of Sexually Related Offenses.

WBASNY opposes this section which would amend the criminal procedure law to eliminate the statute of limitations for sexually related felony offenses committed against an individual under age 18. WBASNY recommends extending the statute of limitations to ten (10) years past the individual reaching the age of 18 (until the individual reaches the age of 28) for criminal prosecutions.

Extension of Statute of Limitations for Civil Lawsuits Related to Sexually Related Offenses.

WBASNY supports this section which would extend the statute of limitations for civil lawsuits for sexually related offenses to fifty (50) years from the date of the offense.

Elimination of Notice of Claim.

WBASNY supports this section which would eliminate the need for a Notice of Claim in cases of child sexual assault.

Revival of Claim.

WBASNY supports this section which would revive these previously time-barred claims for a period of one year.

Education, Labor, and Family Assistance, Article VII

Part G – Reauthorize Close to Home.

WBASNY supports this Part which would extend the juvenile justice services close to home initiative until March 31, 2023. The law originally took effect on April 1, 2012 and is set to expire on March 31, 2018.

Part I – Extend the Youth Development Program.

WBASNY supports this Part which would extend the Youth Development Program until December 31, 2021. The original law that reformed various delinquency prevention programs into the Youth Development Program took effect on January 1, 2014 and is set to expire on December 31, 2018.

Very truly yours,

Amy Baldwin Littman
President, WBASNY