Enacts the "child sexual abuse and exploitation prevention act"; repealer

Section twenty-one of the bill would shift the burden to the defendant who engaged in the sexual conduct with the under aged child to show, by a preponderance of the evidence, that the defendant did not have reason- able grounds to believe that the person was less than the age specified.

Sections 22, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 50, 52, 53, 54, 55, 56, 57 and 58 of the bill are tech- nical amendments to various laws reflecting the substantive changes being proposed by this bill.

Section twenty-three of this bill would increase the penalty for a person who advances or profits from prostitution of a sixteen year old minor.

Section twenty-three-a of this bill provides an affirmative defense for a victim of sex trafficking to a charge of unlawful prostitution or criminal prostitution.

Section twenty-four of this bill would increase the penalty for persons who by force or intimidation compels a sixteen year old minor to engage in prostitution.

Section twenty-six of this bill creates a new crime which would increase the penalty for persons who permit their premises to be used for prosti- tution purposes involving children who cannot consent to sexual conduct.

Section forty-five and forty-six of this bill removes the crimes of disseminating indecent materials to minors from the penal law article related to obscenity.

Section forty-seven of this bill repeals the current article two hundred sixty three relative to sexual performance by a child and enacts a new article two hundred sixty three relative to child sexual abuse, exploi- tation and pornography. The new article provides:

* uniform definitions for all crimes involving children in the area of luring and child pornography;

* moves current legal prohibitions against luring children through the use of a computer from the obscenity article to this new article;

* expands the luring of children for purpose of sexual offenses or the production of child pornography to include the use of any telephonic or electronic communications, such as wireless telephone text messaging, or actual physical luring without the use of a computer or other form of electronic communications;

* increases the penalties for the production and distribution of child pornography, particularly for children under the age of eleven and by parents; and

* increases the penalties for those who possess multiple child pornogra- phy images.

Section forty-eight of this bill adds certain crimes involving child pornography, disseminating indecent materials to minors and computer sex crimes to the list of eligible pattern criminal acts which qualify as criminal acts for purposes of the state's enterprise corruption crime (Le the RICO statute).

The Center has looked at about 6 million images and have identified nearly 900 kids -- which just scratches the surface. Of these 900 kids, '40% of those who assaulted the kids and then distributed the images on-line were their own parents. Another 30% were assaulted and had these assaults distributed on-line either by family members, friends or persons close to the children. Thus in only approximately 30% of this admittedly small sample were the assaults and child porn distribution done by strangers.

Child pornography has become a business so profitable that it is no longer limited to pedophiles. Demand exceeds supply and always will. (Some pedophiles, if they had the resources, would acquire a copy of every single piece of child pornography ever produced.) The risk/gain

ratio is extremely favorable. And the return on investment is extraor- dinary. What crime syndicate would pass up such an opportunity?

Compare production of child pornography with another syndicate crime: trafficking in cocaine. Effective production of cocaine requires control of the cultivation fields, maintenance of private. armies, complex labo- ratory skills and equipment, smuggling expertise and many levels of bribery. Because of harsh international drug laws, moving large quanti- ties means risking a life sentence or, in some countries, a death sentence. As a result, those in the production chain have a great incen- tive to inform upward if captured. And, even when the syndicate succeeds, it must then begin all over again. Once cocaine is sold, it is gone.

In contrast, production of child pornography requires only equipment that anyone can buy at a local mall. Because much of the original prod- uct is "home-gown" -- produced by the parents or caretakers of the victims and then offered for distribution to a syndicate -- the risk of capture is low. And the penalties are much lower than they should be, considering both the damage done and the profit realized. Once the images are created, they can be copied forever. Even seizure of the original pictures means nothing: Images on the Internet can never be destroyed. The only things "used up" in the child pornography business are its victims.

The term "pornography" may give rise to discussions about what consti- tutes art. It may invoke issues of free speech or censorship. But no matter how one feels about pornography in general, child pornography does not belong in that debate. No child is capable, emotionally or legally. Of consenting to being photographed for sexual purposes. Thus, every image of a sexually displayed child - be it a photograph, a tape or a DVD - records both the rape of the child and an act against humani- ty.

While some laws have been enacted to counter the spreading epidemic of online crimes against children, additional laws are needed to stem further spread and assist law enforcement with investigations. The increasing number and complexity of these cases, coupled with the rising sophistication of the perpetrators, have severely challenged those committed to addressing these crimes. Small, rural communities face serious constraints in responding to child abuse cases because of limit- ed resources, training, and personnel with specialized knowledge of child abuse issues.

Fiscal implications

To be Determined.

Local fiscal implications

To be Determined.

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall have become a law.