Standing Up for Human Rights in NY
February 24, 2026
Memorandum of Support: A.5399 (Hunter) / S.4404 (May)
An act to amend the Penal Law, in relation to establishing incapacity to consent when a person is a witness to or subject of an investigation under certain circumstances.
Woodhull Freedom Foundation supports A.5399 (Hunter) / S.4404 (May), legislation that would establish the incapacity to consent to sexual contact with a law enforcement official when a person is a victim, witness, subject, or person of interest in an investigation.
Current law prohibits sexual contact between law enforcement officers and those in their custody. However, the Penal Law does not prohibit law enforcement officers from having sexual contact with someone they encounter during the course of an investigation. A.5399/S.4404 would amend the Penal Law to ensure that sexual contact between a law enforcement officer and a victim, witness, subject, or person of interest in an investigation would also be prohibited.
The International Association of Chiefs of Police has recognized that policing can “create opportunities for sexual misconduct” because officers “have power and authority over others” and “engage with vulnerable populations who lack power and are often perceived as less credible.” The law already recognizes this vulnerability by defining sexual contact between law enforcement and persons in their custody as nonconsensual. However, vulnerable people come into contact with law enforcement in contexts outside of custody; particularly during investigations. Ensuring the protection of the law extends beyond just custody is in the spirit of the current law.
There is precedent for creating such a policy; NY Penal Law § 130.05 already lists 11 scenarios in which a person is deemed incapable of consenting to sexual contact. Other states have also recently passed or are considering legislation to cover a wider scope of interactions between law enforcement and people they interact with during the course of duty. Vermont expanded its law enforcement sexual misconduct law in 2023 to include investigations; Arizona, Colorado, Kansas, Kentucky, Maine, Maryland, Missouri, and Montana have similarly expansive laws; and Massachusetts legislators are currently considering a similar bill.
We strongly support A.5399/S.4404 and urge the Legislature to pass it without delay.