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

Section 353-h provides that a person is guilty of possession of images 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 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 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 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, educational, 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 recording of conduct in which a living animal is intentionally maimed, mutilated, 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 section 353-d of the agriculture and markets law. The provisions of section 245.20 of the penal law are identical to the provisions of section 353-e of the agriculture and markets law. The provisions of section 245.25 of the penal law are identical to the provisions of section 353-f of the agriculture and markets law. The provisions of section 245.30 of the penal law are identical to the provisions of section 353-g of the agriculture and markets law. The provisions of section 245.35 of the penal law are identical to the provisions of section 353-h of the agriculture and markets law. The provisions of section 245.40 of the penal law are identical to the provisions of section 353-i of the agriculture and markets law. The provisions of section 245.45 of the penal law are identical to the provisions of section 353-j of the agriculture and markets law. The provisions of section 245.50 of the penal law are identical to the provisions of section 353-k 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 code. These new sections would make it a crime under New York law 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 this highly disturbing conduct.

In enacting the federal ban, Congress acknowledged the depraved nature of these depictions. In debating the federal legislation, it was stated that the people who buy these videos have an unusual sexual fetish in which they are aroused by watching living things being tortured and crushed to death. As part of the allure of these depictions, the women killing the animals in many of these depictions 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 these depictions promote illegal cruel acts toward animals in general, including those acts that are not being recorded. But 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 this may be a factor in profiling a child as the next school shooter. As a result, the intent of the federal ban, in addition to protecting animals, was to put an end to these disgusting videos to help stop the sick behavior of these individuals before it involves more serious crimes toward people. This legislation has the same goal with respect to the purely New York component of this conduct.

At the same time, Congress did not intend to chill forms of speech that should be protected. For example, it did not want to criminalize educational programs that might depict a bull fight as part of the native 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.

Often, the perpetrators of illegal cruel acts toward animals are gang members and/or participants in the illegal drug and gun trades. Accordingly, this legislation is intended to provide an additional tool to local law enforcement to investigate and prosecute these perpetrators.

Prior legislative history

2007-2008: A.1017S/S.7873 (passed Senate)

Fiscal implications

None.

Effective date

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