Relates to prostitution offenses; creates the new crimes of unlawful prostitution and sexual exploitation of a child

Section 2 of the bill defines unlawful prostitution. Any person who is less than the age of seventeen, the age of legal consent to sexual conduct, would be guilty of unlawful prostitution, if such person engages in sexual conduct for a fee. A first offense would be a violation, subsequent offenses by sixteen year olds engaging in prostitution would match the penalty imposed for seventeen year old children and other adults who engage in prostitution.

Section 3 of the bill amends sections 230.05 and 230.06 of the Penal Law in order to conform the age of the person being patronized and the penalties for patronizing such under aged children with the penalties contained in Article 130 of the Penal Law relative to statutory rape.

Section 4 of the bill creates the crime of sexual exploitation of a child. Similar to rape in the first degree and associated sexual conduct involving children ten years old and less as well as certain children aged eleven and twelve, a person patronizing such under aged children would be guilty of a class B felony.

Section 5 of the bill would shift the burden to the defendant who engaged in the sexual conduct with the under aged person to show, by a preponderance of the evidence, that the defendant did not have reasonable grounds to believe that the person was less than the age specified.

Sections 6, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 are technical amendments.

Section 7 of the bill provides an affirmative defense for a victim of sex trafficking to a charge of unlawful prostitution or criminal prostitution.

Section 8 of this bill would increase the. penalty for a person who advances or profits from prostitution of a sixteen year old minor. Section 9 of this bill would increase the penalty for a person who by force or intimidation compels a sixteen year old minor to engage in prostitution.

Section 15 of this bill provides that unlawful prostitution is a fingerprintable offense.

Existing law

Under existing law persons sixteen years and older, who engage in sexual conduct for a fee, are guilty of a class B misdemeanor. The law does not distinguish between actors who are capable of consent to sexual conduct and those who are not.

Under current law a person who patronizes a prostitute, i.e., pays a fee to engage in sexual conduct is guilty of a class A misdemeanor. Also under current law, any person, including a sixteen year old, who engages in sexual conduct with a minor aged sixteen or younger is guilty of sexual misconduct, a class A misdemeanor.

Under current law an actor 21 years old or more who engages in sexual conduct with a person under the age of seventeen is guilty of a class E felony. If this same individual pays a fee to engage in sexual conduct with a fourteen, fifteen or sixteen year old child, the person is only guilty of a class A misdemeanor.

Under current law, if the actor is eighteen years of age or older and engages in sexual conduct with a person under the age of fifteen the person is guilty of a class 0 felony. If this same person pays a fee to engage in sexual conduct with a fourteen or thirteen year old child, the person is only guilty of a class E felony.

In addition, under current law it is a B felony for anyone eighteen years of age or over to engage in sexual conduct with twelve or eleven year old and for anyone criminally responsible to engage in sexual conduct with a child ten years old or younger. However, under current law if someone aged eighteen years or older pays a fee to engage in sexual conduct with a twelve or eleven year old child, the person is only guilty of a class E felony. A person who pays a fee to engage in sexual conduct with a child ten years old or younger is only guilty of a class D felony.

Under current law a pimp or other person aiding a sixteen or seventeen year old minor to engage in prostitution is guilty of a class D felony. Current law makes this activity a class C felony for aiding children fifteen or younger to engage in prostitution.

Under current law a person who by force or intimidation compels someone fifteen years old or younger to engage in prostitution is guilty of a class B felony.

Justification

Current laws governing statutory rape of a minor child and prostitution by a minor child are at odds. A minor child under the age of eighteen who accepts money or other valuable consideration in exchange for sex is treated just like an adult and charged as a criminal. At the same time, the penal law makes it a crime to engage in sex with a minor under the age of seventeen. Common sense dictates that children, who as a matter of law are incapable of consent to sexual intercourse or anal or oral sexual conduct are actually victims of sexual abuse by virtue of their age. Recent testimony elicited at a March 2007 Assembly Children and Family Committee sponsored roundtable on sexually exploited children drew attention to this anomaly in state law.

Individuals who engage in criminal sexual conduct with children should not face lesser sentences because they paid for the criminal conduct. Nor should pimps and other criminal sex abusers receive lesser punishment because the minor being sold for sex or forced into such activity is sixteen years old. Sixteen year olds are incapable of consent to sexual conduct as a matter of law and are victims. They deserve the same protections other minor children receive from pimps and other criminal sex abusers.

In addition, the law should make distinctions between children who are incapable of consent as a matter of law and others who can consent to sexual conduct. At the same time, recognizing that the law should not encourage minors under the age of seventeen to engage in sexual conduct and that criminally culpable minors ought to bear some responsibility for engaging in illegal activity, prostitution by criminally culpable minors should continue to be proscribed by the penal law.

In an effort to balance the twin goals of protecting children from sexual exploitation at the hands of pimps and persons patronizing these children as prostitutes and discouraging children from engaging in sexual conduct for money or other valuable consideration, a reduced penalty is proposed for minors, who are a matter of law are incapable of consent to sexual conduct but who engage in this activity in exchange for money or other valuable consideration. Repeat offenders would be subject to the same penalties as under current law.

Legislative history

2007-08: S.5455-A/A.7426-A

Fiscal implications

None to the State.

Local fiscal implications

Some reduction in local incarceration and probation costs can be expected. In addition a minor reduction in family court and juvenile detention expenditures may occur.

Effective date

Ninety days next succeeding the day it shall have become a law.