Relates to the promotion and possession of a sexual performance by a child

Summary of specific provisions

Section 1 amends Section 263.00 of the Penal Law to amend the definitions of "sexual performance" and "obscene sexual performance" to include sexual conduct by a child less than eigh- teen years of age. Current law defines such terms to include sexual conduct by a child less than sixteen years of age.

Section 2 adds a new Section 263.03 to the Penal Law that establishes a new crime of use of a child in a sexual performance in the first degree, for using children less than 12 years of age to engage in a sexual performance, which would be a class B felony.

Section 3 amends Section 263.05 of the Penal Law to rename the current crime of use of a child in a sexual performance to use of a child in a sexual performance in the second degree, which remains a class C felony, and increase the age of the children protected by this second degree offense from less than sixteen to less than eighteen years of age.

Section 4 adds a new Section 263.08 to the Penal Law that establishes a new crime of promoting an obscene sexual performance by a child in the first degree, which would be a class C felony.

Section 5 amends Section 263.10 of the Penal Law to rename the current crime of promoting an obscene sexual performance by a child to promoting an obscene sexual performance by a child in the second degree, which would remain a class D felony, and increase the age of the children protected by this second degree offense from less than sixteen years to less than eighteen years of age.

Section 6 amends Section 263.11 of the Penal Law to increase the age of children protected by the offense of possessing an obscene sexual performance by a child from less than sixteen to less than eighteen years of age.

Section 7 adds a new Section 263.13 to the Penal Law that establishes the crime of promoting a sexual performance by a child in the first degree, which would be a class C felony,

Section 8 amends Section 263,15 of the Penal Law to rename the current crime of promoting a sexual performance by a child to promoting a sexual

performance by a child in the second degree, which remains a class D felony, and increase the age of the children protected by this second degree offense from less than sixteen to less than eighteen years of age.

Section 9 amends Section 263.16 of the Penal Law to increase the age of the children protected by the offense of possessing a sexual performance by a child from less than sixteen to less than eighteen years of age,

Section 10 amends subdivision 1 of Section 263.20 of the Penal Law to provide an affirmative defense if, in good faith, the defendant reason- ably believed that the person appearing in a performance was eighteen, rather than sixteen years of age.

Section 11 amends subdivisions 1 and 2 of Section 10.25 of the Penal Law to provide for sentences of imprisonment to run consecutively when a person is convicted of a child pornography crime and any other crime.

Section 12 establishes an effective date.

Justification

The current statutory provisions relating to the use of a child in a sexual performance and the promotion of an obscene sexual performance by a child are inadequate, drawing no distinction between children of differing ages nor permitting consecutive sentences. This bill affords greater protection to children by providing a necessary deterrent to those who would seek to use children in sexual perform- ances.

Specifically, new sections of the Penal Law would be created to protect children under the age of twelve and impose a higher penalty than pres- ently applicable. This bill would also extend the protection to children under the age of eighteen, rather than under the age of sixteen. The imposition of consecutive, rather than concurrent, sentences in this bill would add an especially important deterrent to child pornographers, since the very nature of their activity often may lead them to commit multiple criminal acts. Child pornography is a uniquely heinous crime in that the child is exploited at the time of the initial performance, as well as every time the permanent recording is viewed. Thus, it seems clear that the punishment should not be lost amid concurrent sentences. This bill would ensure that such a criminal will be held separately responsible for each of his or her criminal acts.

Prior legislative history

1998 - S.7444 Passed Senate 1999 - S.859 Passed Senate 2000 - S.859 Passed Senate 2001 - S.851 Passed Senate 2002 - S.851 Passed Senate 2003 - S.512-A Passed Senate 2004 - S.512-A Passed Senate 2006 - S.932 Passed Senate A11330/S3656A of 2007-2008. A3506 of 2009 (Bradley)

Fiscal implications

None.

Effective date

This act shall take effect on the first of November following enactment.