Establishes the crime of sale or possession of images of animal cruelty

Summary of specific provisions

Section one amends the agriculture and markets law by adding eight new sections: 353-e, 353-f, 353-g, 353-h, 353-i, 353-j, 353k and 353-I. Section 353-e provides that a person is guilty of creation of images depicting animal cruelty in the third degree when he or she knowingly creates an image depicting animal cruel- ty that is other than depictions that have serious religious, political, scientific, educational, journalistic, historical, or artistic value. The creation of images depicting animal cruelty in the third degree is a class A misdemeanor. Section 353-f provides that a person is guilty of creation of images depicting animal cruelty in the second degree when he or she knowingly creates an image depicting animal cruelty and intends to sell or distribute such image. The creation of images depicting animal cruelty in the second degree is a class E felony. Section 353-g provides that a person is guilty of creation of images depicting animal cruelty in the first degree when he or she knowingly creates an image depicting animal cruelty and intends to sell or distribute such image and he or she has previously been convicted of the crime of creation of images depicting animal cruelty in the second degree. The creation of images depicting animal cruelty in the first degree is a class D felony. Section 353-h provides that a person is guilty of possession of image depicting animal cruelty in the third degree when he or she knowingly possesses an image depicting animal cruelty. The possession of images depicting animal cruelty in the third degree is a class A misdemeanor. Section 353-i provides that a person is guilty of possession of images depicting animal cruelty in the second degree when he or she knowingly possesses an image depicting animal cruelty and intends to sell or distribute such image. The possession of images depicting animal cruelty in the second degree is a class E felony. Section 353-j provides that a person is guilty of possession of images depicting animal cruelty in the first degree when he or she knowingly possesses an image depicting animal cruelty and he or she has previously been convicted of the crime of possession of images depicting animal cruelty in the second degree. The possession of images depicting animal cruelty in the first degree is a class D felony. Section 353-k provides that a person is guilty of the sale of images depicting animal cruelty in the second degree when he or she knowingly sells an image depicting animal cruelty to another person or entity. The sale of images depicting animal cruelty in the second degree is a class E felony. Section 353-1 provides that a person is guilty of the sale of images depicting animal cruelty in the first degree when he or she knowingly sells an image depicting animal cruelty to another person or entity and he or she has previously been convicted of the crime of the sale of images depicting animal cruelty in the

second degree. The sale of images depicting animal cruelty in the first degree is a class D felony.

The provisions of each of the foregoing sections do not apply to any depiction that has serious religious, political, scientific, educa- tional, journalistic, historical or artistic value. In addition, in each of the foregoing sections, the term "image depicting animal cruelty" means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound record- ing of conduct in which a living animal is intentionally maimed, muti- lated, tortured, wounded, or killed, if such conduct is illegal under federal law or the laws of New York State.

Section two amends the penal law by adding eight new sections 245.15, 245.20, 245.25, 245.30, 245.35, 245.40, 245.45 and 245.50. The provisions of section 245.15 of the penal law are identical to the provisions of new section 353-e of the agriculture and markets law. The provisions of section 245.20 of the penal law are identical to the provisions of new section 353-f of the agriculture and markets law. The provisions of section 245.25 of the penal law are identical to the provisions of new section 353-g of the agriculture and markets law. The provisions of section 245.30 of the penal law are identical to the provisions of new section 353-h of the agriculture and markets law. The provisions of section 245.35 of the penal law are identical to the provisions of new section 353-i of the agriculture and markets law. The provisions of section 245.40 of the penal law are identical to the provisions of new section 353-j of the agriculture and markets law. The provisions of section 245.45 of the penal law are identical to the provisions of new section 353-k of the agriculture and markets law. The provisions of section 245.50 of the penal law are identical to the provisions of new section 353-1 of the agriculture and markets law.

Justification

This legislation amends the agriculture and markets law and the penal law by adding eight new sections to each. The new sections of law would make it a crime in New York to knowingly create, possess or sell images depicting animal cruelty. Such activity is already a crime under federal law. However, this legislation is needed to ensure that local law enforcement has the authority to reach the purely New York component of such highly disturbing conduct.

In enacting the federal ban, Congress acknowledged the depraved nature of depictions of animal cruelty. In debating the federal legislation, it was stated that the people who buy or watch videos containing depictions of animal cruelty have an unusual sexual fetish in which they are aroused by watching living things being tortured or crushed to death. As part of the allure of such depictions, in so-called "crush videos", the women killing the animals often wear high heeled or stiletto shoes.

In enacting the federal law, Congress affirmed the public interest in preventing harm to animals. It also acknowledged that video depictions promote illegal cruel acts toward animals in general, including those acts that are not being recorded. Congress also asserted that those who

commit the most violent crimes against people, and especially those who commit murders, often have progressed to that point after first killing animals. Ted Bundy, David Berkowitz and Ted Kaczynski all tortured or killed animals before they started killing people. According to the Congressional Record, the Federal Bureau of Investigation concluded that children who torture animals should be considered potentially violent and may be a factor in profiling a child as the next school shooter. Additionally, perpetrators of illegal cruel acts toward animals are often gang members and/or participants in the illegal drug and gun trades. This legislation is intended to provide an additional tool to local law enforcement to allow them to investigate and prosecute such perpetrators. Therefore, in addition to protecting animals, the intent of the federal ban is to put an end to videos depicting cruelty to animals in order to help stop behavior that leads to more serious crimes toward people. This legislation has the same goal and would make the act of creating, possessing or selling depictions of cruelty to animals a crime under state law.

Congress did not, however, intend to create a chilling effect on forms of speech that are constitutionally protected. It did not, for example, intend to criminalize educational programs that depict bull fights which are a part of the culture of Spain. As a result, the federal legislation does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical or artistic value. The proposed legislation has an identical exception.

Prior legislative history

2009, A.3130 (Bradley) referred to agricul- ture and markets committee. Same as S.2755 (Johnson, C.) referred to consumer protection. 2008, A.10175 (Bradley) referred to agriculture and markets committee. Same as S.7873 (Leibell) passed in the Senate.

Fiscal implications

None.

Effective date

This act will take effect on the one hundred twentieth day after it shall have become a law.