Establishes the crime of promoting an obscene sexual performance by a child in the first degree

BILL NUMBER:S1739

Title of bill

An act to amend the penal law, in relation to promoting an obscene sexual performance by a child in the first degree

Purpose

To create two different classes of the felony promoting an obscene sexual performance by a child; first degree which is a C felony and second degree which is a D felony.

Summary of provisions

Section 1. Adds a new section 263.09 to the penal law, promoting an obscene sexual performance by a child in the first degree. Such crime shall be a C felony, when knowing the character and content, a person produces or directs ten or more obscene performances which include sexual conduct by a child less than seventeen years of age. For purposes of this section, a photograph shall mean a play, motion picture or dance, or a photographic session at which multiple photographs are taken.

Section 2. Amends section 263.10 of the penal law by providing that 263.10, promoting an obscene sexual performance by a child, shall be a crime in the second degree. 263.10 is a D felony.

Section 3. Effective date.

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 individuals 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 documented 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 leniency 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 higher penalties with regard to 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 higher penalty for a child pornography offense involving ten or more performances is consistent with other New York statutes governing 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. The higher penalty imposed by this bill would also be in harmony with the effect of federal procedures in the area of child pornography.

Therefore, this legislation increases the penalty from a class D felony to a class C felony when there are ten or more performances.

Legislative history

2014: S6533/A4087 - Codes Committee/Codes Committee

Fiscal implications

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.