Increases the penalties for sexual performances by a child and provides for consecutive sentencing upon certain multiple convictions

Summary

Section 1: This bill would amend section 263.00 of the penal law to change the definitions of "sexual performance" and "obscene sexual performance" to include sexual conduct by a child less than eighteen years of age. Presently, the section defines such terms to include sexual conduct by a child less than sixteen years of age.

Section 2: This bill would also add a new section 263.03 to the penal law to establish a new crime of use of a child in a sexual performance in the first degree. A person would be guilty of such crime, when, knowing the character and content thereof he employs, authorizes or induces a child less than twelve years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, consents to the participation by such child in a sexual performance. The use of a child in a sexual performance in the first degree would be a class B felony.

Section 3: This bill would further amend section 263.05 of the penal law to reclassify the current crime of use of a child in a sexual performance as use of a child in a sexual performance in the second degree. It would also amend this section to increase the age of the children protected by this section from children less than sixteen years of age to children less than eighteen years of age. The conduct prescribed by the use of a child in a sexual performance in the second degree would remain a class C felony.

Section 4: This bill would additionally add a new section 263.08 to the penal law to establish a new crime of promoting an obscene sexual performance by a child in the first degree. A person would be guilty of such crime, when, knowing the character and content thereof, he produces, directs or promotes any obscene performance which includes sexual conduct by a child less than twelve years of age. promoting an obscene sexual performance by a child in the first degree would be a class C felony.

Section 5: This bill would also amend section 263.10 of the penal law to reclassify the current crime of promoting an obscene sexual performance by a child as promoting an obscene sexual performance by a child in the second degree. It would also amend this section to increase the age of the children protected by this section from children less than sixteen years of age to children less than eighteen years of age. The conduct prescribed by the promoting of an

obscene sexual performance by a child in the second degree would remain a class D felony.

Section 6: This bill would further add a new section 263.13 to the penal law to establish a new crime of promoting a sexual performance by a child in the first degree. A person would be guilty of such crime, when, knowing the character and content thereof, he produces. directs or promotes any performance which includes sexual conduct by a child less than twelve years of age. Promoting a sexual performance by a child in the first degree would be a class C felony.

Section 7: This bill would also amend section 263.15 of the penal law to reclassify the current crime of promoting a sexual performance by a child as promoting a sexual performance by a child in the second degree. It would also amend this section to increase the age of the children protected by this section from children less than sixteen years of age to children less than eighteen years of age. The conduct prescribed by the promoting of a sexual performance by a child in the second degree would remain a class D felony.

Section 8: This bill would additionally amend section 263.20 of the penal law to provide, that under this article the defendant shall have an affirmative defense if he, in good faith, reasonably believed that the person appearing in the performance was eighteen years of age. No such affirmative defense would be available to the defendant, for the first degree crimes of this article, simply because the defendant believed the child was between the ages of twelve years and eighteen.

Section 9: This bill would also amend section 70.25 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 10: This bill would take effect on the first day of November next succeeding the date on which it shall have become a law.

Justification

Child pornography exploits children, who, as the most vulnerable members of our society, are most deserving of protection by our criminal justice system. 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 sexual conduct of children of different ages nor permitting concurrent sentences. This bill affords greater protection to children by providing the essential deterrence to those who seek to use children in sexual performances. Specifically, new sections of the penal law would be created to protect children under the age of twelve and would impose a higher penalty than presently applicable. This bill would also extend protection to children under the age of eighteen, rather than under the age of sixteen.

Criminals who exploit children should not be permitted to have their sentences effectively merged. This bill addresses this issue by requir- ing that when a defendant is convicted of a child pornography crime, and any other crime, he must serve consecutive sentences, and not

have his sentences run concurrently. This provision adds an especially important deterrent to child pornographers, since the very nature of their activity, more often than not, leads them to commit multiple criminal acts. Under a system of consecutive sentencing, such a criminal will be held responsible for all his criminal acts, and not just one of them. There is no more heinous act than a crime which is committed against society's most innocent members, our children. It is imperative to our society's future to protect all of our children and afford them every opportunity to become productive and well-adjusted members of our society.

Child pornography degrades our children and our entire society to its lowest possible level. This bill would take the necessary measures to protect our children from those who would scar and exploit them for their own warped gratification or profit. It would also send a strong message that New York is not a state that will tolerate this activity, and that we will enact appropriate penalties that fit the seriousness of this crime.

Fiscal implications

None.

Effective date

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