Relates to offenses involving the sexual performance of a child

Summary of specific provisions

Section one amends the penal law by adding a new section 263.09 to create the crime of promoting an obscene sexual performance by a child in the first degree as a class C felony when an individual produces, directs or promotes twenty-five (25) or more obscene performances involving a child less than seventeen years of age.

Section two amends section 263.10 of the penal law to create the crime of promoting an obscene sexual performance by a child in the second degree as a class D felony when an individual produces, directs or promotes obscene performances involving a child less than seventeen years of age.

Section three amends section 263.11 of the penal law creating the crime of possessing an obscene sexual performance by a child in the third degree as a class E felony when an individual knowingly possesses or has in their control any obscene performance including sexual conduct involving a child less than sixteen years of age.

Section four amends the penal law adding two new sections, 263.12 and 263.13, to create the crime of possessing an obscene sexual performance by a child in the second degree when the individual knowingly possesses or controls twenty-five (25) or more obscene performances involving a child less than sixteen. This is a class D felony.

Possessing an obscene sexual performance by a child in the first degree is added to include knowingly possessing or controlling two-hundred fifty (250) or more sexual performances involving a child less than sixteen. This is a class C felony.

Section five amends section 263.15 to revise the crime of promoting a sexual performance by a child in the second degree when knowing the character and content, an individual produces, directs or promotes any performance which includes sexual conduct by a child less than seven- teen. This is a class D felony.

Section six amends the penal law by amending section 263.16 to create the crime of promoting a sexual performance by a child in the third degree, when a person knowingly produces, directs or promotes twenty- five (25) or more performances including sexual conduct involving a

child less than seventeen. This is a class E felony. Further, it adds sections 263.17 and 263.18 to the penal law. Possessing a sexual performance by a child in the second degree is a class E felony. Possessing a sexual performance by a child in the second degree is a class D felony when an individual possesses twenty-five (25}or more performances including sexual conduct of a child less than sixteen. Possessing a sexual performance by a child in the first degree is a class C felony when a. person possesses two-hundred fifty (250) or more performances involving a child less than sixteen.

Section seven amends section 263.20 of the penal law, an affirmative defense when charged with certain crimes, by adding certain sections of law provided by this legislation against which an affirmative defense may be used.

Section eight amends paragraph (d) of subdivision 7 of section 995 of the executive law, defining a "designated offender", by adding certain sections of law provided by this legislation.

Section nine amends subdivisions 1 and 2 of section 263.00 of the penal law, defining "sexual performance" and obscene sexual performance" respectively, by adding certain sections of law provided by this legis- lation.

Section ten amends paragraph (a) of subdivision 1 of section 460.10 of the penal law, defining "criminal act", by adding certain sections of law provided by this legislation.

Section eleven amends paragraph (b) of subdivision 4 of section 509-cc of the vehicle and traffic law, which provides certain crimes, if convicted, prohibit a person from driving a school bus, by adding certain sections of law provided by this legislation.

Section twelve provides the effective date as the first of November after it becomes law.

Justification

This bill responds to the increasing misuse of the internet as a medium for the sexual exploitation and abuse of children. A recent study by the National Center for Missing and Exploited Children reports that 1 in 4 children were subjected to unwanted exposure to pictures of nude indi- viduals or people engaged in sexual activity on the internet last year. Child pornography is a particular threat, as it not only victimizes the children used in the production or pictures, but creates a ripple effect in the victimization of further children. Child abuse experts have docu- mented the common tendency of pedophiles to lower the inhibitions of potential victims by exposing them to images of other children engaging in sexual activity.

No level of child pornography is harmless and the current statutory scheme reflects that insight. However, the unintended consequence of a "one size fits all" statutory scheme lends itself to unwarranted lenien-

cy for child pornographers overall. The high-volume dealer may escape criminal liability proportionate to the crime, both through a low top felony count and through the frequent conflation of multiple counts at sentencing.

A statutory amendment to provide for graded child pornography offenses is urgently required to assist law enforcement in the face of evolving technology. Over the past decade, explosive growth in disk storage capacity has facilitated the development of massive collections of child pornography, while evolving internet communication technology has enabled collection owners to organize sophisticated trade-or-profit based mechanisms for its distribution. A graduated scheme of child pornography offenses is consistent with other New York statutes govern- ing distribution and possession of contraband. For example, in the area of narcotics and possession of stolen property, the state statutes are graded to reflect the insight that kingpins and mid-level operatives generally pose a greater threat to society than street-level criminals.

A graduated scheme of state statutes governing child pornography would also be in harmony with the effect of federal procedures in this area. Federal sentencing procedure in the field of child pornography approxi- mates the effect of a graded statutory scheme via sentencing enhance- ments applied, for example, to the possession of greater than ten images of child pornography.

Prior legislative history

A.3468, 2008 and 2007 Referred to Codes Committee A.11139-A, 2006 Referred to Codes Committee. S.7352, 2006 Passed Senate.

Fiscal implication

None.

Effective date

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