Enacts the "child sexual abuse and exploitation prevention act"; repealer

Summary of provisions

Section one of the bill is the short title.

Section two of the bill provides legislative intent.

Sections 3, 4, 7, 10, 12, 18, 19, 20, 29, 34, 35, 36, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 ,53, 54 ,55, 56 and 57 of the bill are technical amendments to various laws reflecting the substantive changes being proposed by this bill.

Section five of the bill permits the introduction of business records, especially Internet Service Provider records, into evidence in grand jury proceedings by way of sworn affidavit.

Section six of the bill addresses the content of any indictment involving the use of a computer in the commission of a sex crime.

Section eight and nine of the bill authorize the issue of a non-judicial subpoena in cases involving offenses against minors or where the life or safety of any person is in imminent danger.

Section eleven of the bill adds a new paragraph (u) to subdivision 8 of section 700.05 of the criminal procedure law

Section thirteen and fourteen of the bill relate to the state's sexual offender registration act (i.e. Megan's Law) and require registered sex offenders to provide verification of their Internet accounts and Internet screen names and permits DCJS to provide this information to Internet service providers.

Section fifteen of the bill repeals several sections of the Penal Law.

Section sixteen of the bill amends Section 60.13 of the Penal Law to include sexual exploitation of a child.

Section seventeen of the bill amends Section 70.02 of the Penal Law to add certain sexual crimes against children created by this bill to the list of violent felony offenses.

Section twenty-one and twenty-two of the bill create new crimes addressing criminal use of encryption.

Section twenty-three of the bill clarifies the crime of tampering with physical evidence and the responsibility of Internet service providers to retain physical evidence.

Section twenty-four of the bill defines the crime of criminal prostitution, involving persons lawfully capable of consenting to sexual conduct.

Section twenty-five of the bill defines unlawful prostitution, involving persons who by virtue of their age are incapable of consenting to sexual conduct.

Section twenty-six of the bill increases the penalties for patronizing children who are being prostituted and to conform the penalties and the age of the child being patronized to mirror the penalties for engaging in acts of statutory rape as contained in article one thirty of the penal law.

Section twenty-seven of the bill creates the crime of sexual exploitation of a child, involving the use of a child under the age of thirteen in the crime of prostitution. A person patronizing such under aged children would be guilty of a class B felony.

Section twenty-eight of the bill would shift the burden to the defendant who engaged in the sexual conduct with the under aged child 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.

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

Section thirty-one of this bill increases the age of the victim to seventeen with regard to charging a person for promoting prostitution in the second degree.

Section thirty-two of this bill increases the age of the victim to seventeen with regard to charging a person for the crime of forcing or intimidating a minor to engage in prostitution.

Section thirty-three of this bill creates a new crime which would increase the penalty for persons who permit their premises to be used for prostitution purposes involving children who cannot consent to sexual conduct.

Section thirty-four of this bill removes the crimes of disseminating indecent materials to minors from the penal law article related to obscenity.

Section thirty-seven of this bill repeals the current article two hundred sixty three relative to sexual performance by a child and enacts a new article two hundred sixty three relative to child sexual abuse, exploitation and pornography. The new article provides:

* uniform definitions for all crimes involving children in the area of luring and child pornography; * moves current legal prohibitions against luring children through the use of a computer from the obscenity article to this new article; * expands the luring of children for purpose of sexual offenses or the production of child pornography to include the use of any telephonic or electronic communications, such as wireless telephone text messaging, or actual physical luring without the use of a computer or other form of electronic communications; * increases the penalties for the production and distribution of child pornography, particularly for children under the age of eleven and by parents; and * increases the penalties for those who possess multiple child pornography images.

Section thirty-eight of this bill adds certain crimes involving child pornography, disseminating indecent materials to minors and computer sex crimes to the list of eligible pattern criminal acts which qualify as criminal acts for purposes of the state's enterprise corruption crime (the RICO statute).

Section fifty-eight of the bill provides for the effective date, which is the first of November next succeeding the date on which it shall have become law.

Justification

The molestation and sexual exploitation of children has been identified as a major public health issue. It is estimated that there are between 100,000 and 300,000 children sexually exploited annually through prostitution and pornography in the United States.

Recent advances in computer technology have been aiding sexual predators, stalkers, child pornographers, child traffickers, and others with the intent of exploiting children, to commit their acts. Internet bulletin boards, chat rooms. private web sites, and peer-to-peer networks are being used daily by pedophiles to meet unsuspecting children. Equally troubling is the fact that a greater number of teenagers today are using the Internet daily and many enter chat rooms, post personal information about themselves on bulletin boards and establish their own web sites.

Perhaps the most disturbing consequence related to the Internet has been the enormous increase in the production, sale, and dissemination of child pornography. While the possession or distribution of child pornography is illegal under federal law and in all 50 states, according to researchers and law enforcement officials, this type of crime is increasing at an alarming rate, fueled largely by the capabilities of the Internet and modern technologies.

Statistics show that child pornography is the fastest-growing of all Internet businesses; estimated to bring in several billion dollars a year. Knowledge of these cold statistics will not alter the conduct of those who take pleasure or profit in the exploitation of children.

In testimony before New York's Commission on Investigations, Ernie Allen, Executive Director of the National Center for Missing and Exploited Children, indicated that of the thousands of offender's successfully prosecuted for possession of child pornography:

80% had images of children less than 12 39% had images of children younger than 6 19% had images of children younger than 3

These are not pictures of nude children; these are pictures of children being graphically sexually assaulted and raped. Allen told the State Commission on Investigations that working with the Dallas police Department and Federal Law Enforcement the Center arrested a Texas husband and wife who made child pornography -- when they were arrested they had 70,000 customers paying $30/month on credit cards to access graphic images of small children being raped and sexually assaulted.

Another perpetrator in Chicago organized a peer to peer network (no ISP) so that people around the world could log on at a predetermined time and witness, via a web earn, an adult sexually assault an 18-month old child.

The Center has looked at about 6 million images and have identified nearly 900 kids -- which just scratches the surface. Of these 900 kids, '40% of those who assaulted the kids and then distributed the images on-line were their own parents. Another 30% were assaulted and had these assaults distributed on-line either by family members, friends or persons close to the children. Thus in only approximately 30% of this admittedly small sample were the assaults and child porn distribution done by strangers.

The term "pornography" may give rise to discussions about what constitutes art. It may invoke issues of free speech or censorship. But no matter how one feels about pornography in general, child pornography does not belong in that debate. No child is capable, emotionally or legally. Of consenting to being photographed for sexual purposes. Thus, every image of a sexually displayed child - be it a photograph, a tape or a DVD - records both the rape of the child and an act against humanity.

While some laws have been enacted to counter the spreading epidemic of online crimes against children, additional laws are needed to stem further spread and assist law enforcement with investigations. The increasing number and complexity of these cases, coupled with the rising sophistication of the perpetrators, have severely challenged those committed to addressing these crimes. Small, rural communities face serious constraints in responding to child abuse cases because of limited resources, training, and personnel with specialized knowledge of child abuse issues.

Research funded by the National Center for Missing and Exploited Children found that forty percent of child pornography possessors were "dual offenders," meaning they had also sexually victimized children. Since the sexual abuse was discovered at the same time as the possession of child pornography, there is a direct benefit to aggressively combating child pornography. Another relevant finding in the study was that the conviction rate for child pornography was nearly 100 percent - this contrasts sharply with the much lower rate of conviction for other crimes against children. Even in communities with vast resources, the task of investigating and prosecuting child abuse cases is overwhelming -- there may be little or no physical evidence and the primary witness is often a child unable to withstand a trial.

In addition, 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.

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 aids 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.

Legislative history

2008: S.6747-A/A.10296 - Passed the Senate. 2010: S.2205-A/A.6941-A 2011: - Passed Senate

Similar bills such as S.320 (Golden), S.1086 (Saland), S.1761 (Rath), S.1921 (Robach), S.1977 (Volker), S.3175-A (Volker), S.3245 (Young), S.3656 (Leibell), S.5455-A (Volker), S.5917-A (Saland), and S.5986 (Leibell), have been introduced by members of the Senate Republicans and address individual components of this grave problem.

Effective date

On the first of November next succeeding the date on which it shall have become a law.