Creates the crime of sexual exploitation of a child

(1) being eighteen years of age or older, employs, uses, persuades, induces, entices, or coerces, any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor within the state, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct;

(2) being eighteen years of age or more, knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice r advertisement seeking or offering

(a) to receive exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or

(b) participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct.

Sexual exploitation of a child is a class B felony.

Section 2 amends § 60.13 of the penal law to include sexual exploitation of a child as a felony sex offense with certain authorized dispositions attached.

Section 3 amends § 70.80 of the penal law to add to the definition of felony sex offense the crime of sexual exploitation of a child.

Section 4 amends § 168-a(2)(a)(i) of the correction law to add to the definition of sex offence the crime of sexual exploitation of a child.

Section 5 amends § 380.50 of the criminal procedure law to require that victims of the crime of sexual exploitation of a child be notified within sixty days the imposition of a sentence.

Section 6 amends § 61(2) of the civil rights law to add the crime of sexual exploitation of a child to those felony offenses that must be disclosed in a petition for a change of name when such petition is requested by a person standing convicted of such a felony and is currently confined as a inmate in any correctional facility, or under the supervision of the department of corrections and community supervision or a county probation department as a result of such conviction.

Section 7 amends § 62(2) of the civil rights law to add the crime of sexual exploitation of a child to those felony offenses that a petitioner for a change of name stands convicted of that requires notice of such petition to the district attorney of every county in

which the petitioner had been convicted of such felony and upon the court in which the sentence for the felony was entered .

Section 8 amends § 64 of the civil rights law to add the crime of sexual exploitation of a child to those felony offenses that a petitioner for a change of name stands convicted of that requires the clerk of the court, in which the change of name order has been entered, to certify that the order and filing of the affidavit of the publication is in compliance.

Section 9 amends § 10.03(p) of the mental hygiene law to include under the definition of sex offense, the crime of sexual exploitation of a child.

Section 10 amends § 509-cc(4)(c) of the vehicle and traffic law to include the crime of sexual exploitation of a child to those offenses that upon conviction result in a disqualification for school bus driver licensure for a period of five years.

Section 11 provides the effective date.

Existing law

Section 130 of the penal law delineates the sex offenses of which a person may be found guilty in the State of New York. There are three enumerated sex crimes that may be specifically perpetrated against minor children. While all sex crimes may be perpetrated against a minor, these specific child-victim crimes include: course of sexual conduct against a child, female genital mutilation, and predatory sexual assault against a child. Currently, there is no crime of sexual exploitation of a child.

Pursuant to § 130.75 of the penal law a person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration: (a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than eleven years old; or (b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than thirteen years old. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section. Course of sexual conduct against a child in the first degree is a class B felony.

Pursuant to § 130.80 of the penal law a person is guilty of course of sexual conduct against a child in the second degree when, over a period of time not less than three months in duration: (a) he or she engages in two or more acts of sexual conduct with a child less than eleven years old; or (b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct with a child less than thirteen years old. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section. Course of sexual conduct against a child in the second degree is a class D felony.

Pursuant to §130.85 of the penal law a person is guilty of female genital mutilation when: (a) a person knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not reached eighteen years of age; or (b) being a parent, guardian or other person legally responsible and charged with the care or custody of a child less than eighteen years old, he or she knowingly consents to the circumcision, excision or infibulation of whole or part of such child's labia majora or labia minora or clitoris. Such circumcision, excision, or infibulation is not a violation of this section if such act is: (a) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or (b) performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor. or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife. For the purposes of paragraph (a) of subdivision two of this section, no account shall be taken of the effect on the person on whom such procedure is to be performed of any belief on the part of that or any other person that such procedure is required as a matter of custom or ritual. Female genital mutilation is a class E felony.

Pursuant to § 130.96 a person is guilty of predatory sexual assault against a child when being eighteen years old or more, he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, and the victim is less than thirteen years old. Predatory sexual assault against a child is a class A-II felony.

Justification

In St. Lawrence County, in August of 2014, Stephen Howells and Nicole Vaisey abducted two young Amish sisters, having lured them into their car while the girls waited on them at their family's roadside vegetable stand. The girls were shackled together and held captive for over a day while Howells sedated the victims with sleeping and pain prescription drugs he obtained through his position as a registered nurse. He then sexually abused and allegedly filmed his restrained victims, aged seven and twelve years old, ostensibly intending to produce child pornography. Vaisey, Howells' girlfriend at the time, is accused of conspiring with Howells to perpetrate the crimes and also sexually assaulting the girls. As law enforcement officials conducted an extensive search, the girls were released. They knocked on the door of a home in Richville, about 15 miles from where police say they were abducted. Ultimately, the girls were returned to their family's home.

While this horrible incident resulted in the victims' eventual return, in the days following the girls' return, law enforcement officials announced that Howells and Vaisey had victimized at least three other children, having kidnapped, sexually assaulted, and likely recorded all of the children while they were confined. Thus due to the child pornography elements present in this instance, federal charges were levied against Howells and Vaisey. The federal indictment issued against Howells and Vaisey alleged that the defendants conspired and committed various counts of the crime of sexual exploitation of a child.

Pursuant to § 2251 of Title 18 of the United States Code, any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, is guilty of the crime of sexual exploitation of a child, if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.

There is no state counterpart to the federal crime of sexual exploitation of a child. The heinousness of these acts and the enduring impact on a victim necessitates the enactment of the state equivalent to ensure all perpetrators of these deplorable crimes are held to the most stringent requirements of the law. Although Howells plead guilty to the charges, had this case gone to trial and it was proven that no visual depictions were produced or that recordings were made using materials that had not been engaged in interstate commerce, the charges would have failed, and the defendants would have been found not guilty. This bill criminalizes the act of coercing any minor to engage in any sexual explicit conduct, irrespective of materials used or interstate transmission, for the purpose of producing any visual depiction of such conduct, effectively removing any loophole in the federal law and imposing the full weight of this crime at the state level.

Children are our state's most valuable and vulnerable residents. As such it is essential that they are protected from the most heinous and violating crimes. By establishing the crime of sexual exploitation of a child for the State of New York, we can insure that all child victims, like the Amish girls abducted and sexually abused by Howells and Vaisey, receive the fullest protection of the law.

Legislative history

New bill.

Fiscal implications

None.

Effective date

This act shall take effect on the ninetieth day after it shall have become a law.