What's happening
This bill creates the crime of sexual exploitation of a child and adds it as a class B felony in New York law.
Why it matters
Expands prosecutable conduct. The bill specifically targets adults who use, entice, or coerce minors into sexually explicit acts for the purpose of creating or transmitting visual depictions, filling potential gaps in existing law related to child sexual exploitation and production of child pornography.
Covers advertising and solicitation. It criminalizes the publishing or seeking of notices or advertisements that offer or request sexually explicit visual material involving minors, making it easier for law enforcement to prosecute those facilitating or attempting to facilitate child exploitation online or elsewhere.
Triggers broader legal consequences. By adding this crime to various sections of New York law (such as sentencing guidelines, victim notification for name changes, and sex offense definitions), the bill ensures that offenders face enhanced penalties, registration requirements, and restrictions similar to those for other serious sex crimes.
Affects professional and civil rights. Inclusion in lists that disqualify individuals from certain activities (e.g., driving school buses), and affects procedures for legal name changes by those convicted, signaling long-term collateral consequences for those found guilty under this new statute.
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Make Child Exploitation a Crime
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History
- Referred to codes
- Referred to codes
Full text
5 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
3926
2017-2018 Regular Sessions
IN SENATE
January 30, 2017
Introduced by Sen. RITCHIE -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
AN ACT to amend the penal law, the correction law, the criminal procedure law, the civil rights law, the mental hygiene law and the vehicle and traffic law, in relation to creating the crime of sexual exploitation of a child
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. The penal law is amended by adding a new section 130.98 to read as follows: § 130.98 Sexual exploitation of a child.
A person is guilty of sexual exploitation of a child when:
1. Being eighteen years of age or more he or she 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 he or she knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or 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.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09316-01-7
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§ 2. Section 60.13 of the penal law, as amended by chapter 368 of the laws of 2015, is amended to read as follows: § 60.13 Authorized dispositions; felony sex offenses.
When a person is to be sentenced upon a conviction for any felony defined in article one hundred thirty of this chapter, including a sexually motivated felony, or patronizing a person for prostitution in the first degree as defined in section 230.06 of this chapter, aggravated patronizing a minor for prostitution in the third degree as defined in section 230.11 of this chapter, aggravated patronizing a minor for prostitution in the second degree as defined in section 230.12 of this chapter, aggravated patronizing a minor for prostitution in the first degree as defined in section 230.13 of this chapter, sexual exploitation of a child as defined in section 130.98 of this chapter, incest in the second degree as defined in section 255.26 of this chapter, or incest in the first degree as defined in section 255.27 of this chapter, or a felony attempt or conspiracy to commit any of these crimes, the court must sentence the defendant in accordance with the provisions of section 70.80 of this title.
§ 3. Paragraph (a) of subdivision 1 of section 70.80 of the penal law, as amended by chapter 368 of the laws of 2015, is amended to read as follows:
(a) For the purposes of this section, a "felony sex offense" means a conviction of any felony defined in article one hundred thirty of this chapter, including a sexually motivated felony, or patronizing a person for prostitution in the first degree as defined in section 230.06 of this chapter, patronizing a person for prostitution in the second degree as defined in section 230.05 of this chapter, aggravated patronizing a minor for prostitution in the third degree as defined in section 230.11 of this chapter, aggravated patronizing a minor for prostitution in the second degree as defined in section 230.12 of this chapter, aggravated patronizing a minor for prostitution in the first degree as defined in section 230.13 of this chapter, sexual exploitation of a child as defined in section 130.98 of this chapter, incest in the second degree as defined in section 255.26 of this chapter, or incest in the first degree as defined in section 255.27 of this chapter, or a felony attempt or conspiracy to commit any of the above.
§ 4. Subparagraph (i) of paragraph (a) of subdivision 2 of section 168-a of the correction law, as amended by chapter 368 of the laws of 2015, is amended to read as follows:
(i) a conviction of or a conviction for an attempt to commit any of the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.40, 130.45, 130.60, 130.98, 230.34, 250.50, 255.25, 255.26 and 255.27 or article two hundred sixty-three of the penal law, or section 135.05, 135.10, 135.20 or 135.25 of such law relating to kidnapping offenses, provided the victim of such kidnapping or related offense is less than seventeen years old and the offender is not the parent of the victim, or section 230.04, where the person patronized is in fact less than seventeen years of age, 230.05, 230.06, 230.11, 230.12, 230.13, subdivision two of section 230.30, section 230.32, 230.33, or 230.34 of the penal law, or section 230.25 of the penal law where the person prostituted is in fact less than seventeen years old, or
§ 5. Subdivision 6 of section 380.50 of the criminal procedure law, as separately amended by chapters 368 and 394 of the laws of 2015, is amended to read as follows:
6. Regardless of whether the victim requests to make a statement with regard to the defendant's sentence, where the defendant is sentenced for
S. 3926 3
a violent felony offense as defined in section 70.02 of the penal law or a felony defined in article one hundred twenty-five of such law or any of the following provisions of such law sections 130.25, 130.98, 130.30, 130.40, 130.45, 255.25, 255.26, 255.27, article two hundred sixty-three, 135.10, 135.25, 230.05, 230.06, 230.11, 230.12, 230.13, subdivision two of section 230.30 or 230.32, the prosecutor shall, within sixty days of the imposition of sentence, provide the victim with a form, prepared and distributed by the commissioner of the division of criminal justice services, in consultation with the director of the office of victim services, on which the victim may indicate a demand to be informed of any petition to change the name of such defendant. Such forms shall be maintained by such prosecutor. Upon receipt of a notice of a petition to change the name of any such defendant, pursuant to subdivision two of section sixty-two of the civil rights law, the prosecutor shall promptly notify the victim at the most current address or telephone number provided by such victim in the most reasonable and expedient possible manner of the time and place such petition will be presented to the court.
§ 6. Subdivision 2 of section 61 of the civil rights law, as amended by section 54 of subpart B of part C of chapter 62 of the laws of 2011, is amended to read as follows:
2. If the petitioner stands convicted of a violent felony offense as defined in section 70.02 of the penal law or a felony defined in article one hundred twenty-five of such law or any of the following provisions of such law sections 130.25, 130.30, 130.40, 130.45, 130.98, 255.25, 255.26, 255.27, article two hundred sixty-three, 135.10, 135.25, 230.05, 230.06, subdivision two of section 230.30 or 230.32, and is currently confined as an inmate in any correctional facility or currently under the supervision of the department of corrections and community supervision or a county probation department as a result of such conviction, the petition shall for each such conviction specify such felony conviction, the date of such conviction or convictions, and the court in which such conviction or convictions were entered.
§ 7. Subdivision 2 of section 62 of the civil rights law, as amended by section 55 of subpart B of part C of chapter 62 of the laws of 2011, is amended to read as follows:
2. If the petition be to change the name of a person currently confined as an inmate in any correctional facility or currently under the supervision of the department of corrections and community supervision or a county probation department as a result of a conviction for a violent felony offense as defined in section 70.02 of the penal law or a felony defined in article one hundred twenty-five of such law or any of the following provisions of such law sections 130.25, 130.30, 130.40, 130.45, 130.98, 255.25, 255.26, 255.27, article two hundred sixty-three, 135.10, 135.25, 230.05, 230.06, subdivision two of section 230.30 or 230.32, notice of the time and place when and where the petition will be presented shall be served, in like manner as a notice of a motion upon an attorney in an action, upon the district attorney of every county in which such person has been convicted of such felony and upon the court or courts in which the sentence for such felony was entered. Unless a shorter period of time is ordered by the court, said notice shall be served upon each such district attorney and court or courts not less than sixty days prior to the date on which such petition is noticed to be heard.
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§ 8. The closing paragraph of section 64 of the civil rights law, as separately amended by chapters 258, 320 and 481 of the laws of 2006, is amended to read as follows:
Upon compliance with the order and the filing of the affidavit of the publication, as provided in this section, the clerk of the court in which the order has been entered shall certify that the order has been complied with; and, if the petition states that the petitioner stands convicted of a violent felony offense as defined in section 70.02 of the penal law or a felony defined in article one hundred twenty-five of such law or any of the following provisions of such law sections 130.25, 130.30, 130.40, 130.45, 130.98, 255.25, 255.26, 255.27, article two hundred sixty-three, 135.10, 135.25, 230.05, 230.06, subdivision two of section 230.30 or 230.32, such clerk (1) shall deliver, by first class mail, a copy of such certified order to the division of criminal justice services at its office in the county of Albany and (2) upon the clerk of the court reviewing the petitioner's application for name change and subsequent in-court inquiry, may, in the clerk's discretion, deliver, by first class mail, the petitioner's new name with such certified order to the court of competent jurisdiction which imposed the orders of support. Such certification shall appear on the original order and on any certified copy thereof and shall be entered in the clerk's minutes of the proceeding.
§ 9. Subdivision (p) of section 10.03 of the mental hygiene law, as amended by chapter 368 of the laws of 2015, is amended to read as follows:
(p) "Sex offense" means an act or acts constituting: (1) any felony defined in article one hundred thirty of the penal law, including a sexually motivated felony; (2) patronizing a person for prostitution in the first degree as defined in section 230.06 of the penal law, aggravated patronizing a minor for prostitution in the first degree as defined in section 230.13 of the penal law, aggravated patronizing a minor for prostitution in the second degree as defined in section 230.12 of the penal law, aggravated patronizing a minor for prostitution in the third degree as defined in section 230.11 of the penal law, incest in the second degree as defined in section 255.26 of the penal law, sexual exploitation of a child as defined in section 130.98 of the penal law, or incest in the first degree as defined in section 255.27 of the penal law; (3) a felony attempt or conspiracy to commit any of the foregoing offenses set forth in this subdivision; or (4) a designated felony, as defined in subdivision (f) of this section, if sexually motivated and committed prior to the effective date of this article.
§ 10. Paragraph (c) of subdivision 4 of section 509-cc of the vehicle and traffic law, as amended by chapter 368 of the laws of 2015, is amended to read as follows:
(c) The offenses referred to in subparagraph (i) of paragraph (b) of subdivision one and subparagraph (i) of paragraph (c) of subdivision two of this section that result in disqualification for a period of five years shall include a conviction under sections 100.10, 105.13, 115.05, 120.03, 120.04, 120.04-a, 120.05, 120.10, 120.25, 121.12, 121.13, 125.40, 125.45, 130.20, 130.25, 130.52, 130.55, 130.98, 135.10, 135.55, 140.17, 140.25, 140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09, 220.16, 220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55, 230.00, 230.05, 230.06, 230.11, 230.12, 230.13, 230.19, 230.20, 235.05, 235.06, 235.07, 235.21, 240.06, 245.00, 260.10, subdivision two of section 260.20 and sections 260.25, 265.02, 265.03, 265.08, 265.09, 265.10, 265.12, 265.35 of the penal law or an attempt to commit any of
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the aforesaid offenses under section 110.00 of the penal law, or any similar offenses committed under a former section of the penal law, or any offenses committed under a former section of the penal law which would constitute violations of the aforesaid sections of the penal law, or any offenses committed outside this state which would constitute violations of the aforesaid sections of the penal law.
§ 11. This act shall take effect on the ninetieth day after it shall have become a law.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the penal law, the correction law, the criminal procedure law, the civil rights law, the mental hygiene law and the vehicle and traffic law, in relation to creating the crime of sexual exploitation of a child
Purpose
To create the crime of sexual exploitation of a child.
Summary of provisions
Section 1 amends the penal law by adding a new section 130.98, establishing the crime of sexual exploitation of a child. A person is guilty of sexual exploitation of a child when:
Read the full memo (2,118 words)
(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. 1
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
2015-2016: S.5560-A
Fiscal implications
None.
Effective date
This act shall take effect on the ninetieth day after it shall have become a law.
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