Increases the penalties for sexual performances by a child; increases age from 16 to 18 for application of existing sexual performance crimes; creates crimes of use of a child in a sexual performance in the first degree, promoting an obscene sexual performance by a child in the first degree, and promoting a sexual performance by a child in the first degree; provides for consecutive sentencing upon certain multiple convictions.

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S2266-2013 Actions

• May 23, 2013: referred to codes
• May 23, 2013: DELIVERED TO ASSEMBLY
• May 23, 2013: PASSED SENATE
• May 22, 2013: ADVANCED TO THIRD READING
• May 21, 2013: 2ND REPORT CAL.
• May 20, 2013: 1ST REPORT CAL.633
• Jan 15, 2013: REFERRED TO CODES

S2266-2013 Meetings

Codes: May 20, 2013

S2266-2013 Calendars

Active List: May 23, 2013 , Floor Calendar: May 21, 2013 , Floor Calendar: May 22, 2013 , Floor Calendar: May 23, 2013

S2266-2013 Votes

S2266-2013 Memo

BILL NUMBER:S2266

TITLE OF BILL:  An act to amend the penal law, in relation to
increasing the criminal penalties for sexual performances by a child
and in relation to providing for consecutive sentencing upon certain
multiple convictions

PURPOSE:  This bill increases the penalties for using a child in a
sexual performance and promoting an obscene sexual performance by a
child and imposes consecutive--as opposed to concurrent--sentences on
a child pornographers.

SUMMARY OF PROVISIONS:

Section 1 amends Section 263.00 of the Penal Law to amend the
definitions of "sexual performance" and "obscene sexual performance"
to include sexual conduct by a child less than eighteen years of age.
Current law defines such terms to include sexual conduct by a child
less than sixteen years of age.

Section 2 adds a new Section 263.03 to the Penal Law that establishes
a new crime of use of a child in a sexual performance in the first
degree, for using children less than 12 years of age to engage in a
sexual performance, which would be a class B felony.

Section 3 amends Section 263.05 of the Penal Law to rename the current
crime of use of a child in a sexual performance to use of a child in a
sexual performance in the second degree, which remains a class C
felony, and increase the age of the children protected by this second
degree offense from less than sixteen to less than eighteen years of
age.

Section 4 adds a new Section 263.08 to the Penal Law that establishes
a new crime of promoting an obscene sexual performance by a child in
the first degree, which would be a class C felony.

Section 5 amends Section 263.10 of the Penal Law to rename the current
crime of promoting an obscene sexual performance by a child to
promoting an obscene sexual performance by a child in the second
degree, which would remain a class L1 felony, and increase the age of
the children protected by this second degree offense from less than
sixteen years to less than eighteen years of age.

Section 6 amends Section 263.11 of the Penal Law to increase the age
of children protected by the offense of possessing an obscene sexual
performance by a child from less than sixteen to less than eighteen
years of age.

Section 7 adds a new Section 263.13 to the Penal Law that establishes
the crime of promoting a sexual performance by a child in the first
degree, which would be a class C felony.

Section 8 amends Section 263.15 of the Penal Law to rename the current
crime of promoting a sexual performance by a child to promoting a
sexual performance by a child in the second degree, which remains a
class D felony, and increase the age of the children protected by this


second degree offense from less than sixteen to less than eighteen
years of age.

Section 9 amends Section 263.16 of the Penal Law to increase the age
of the children protected by the offense of possessing a sexual
performance by a child from less than sixteen to less than eighteen
years of age.

Section 10 amends subdivision 1 of Section 263.20 of the Penal Law to
provide an affirmative defense if, in good faith, the defendant
reasonably believed that the person appearing in a performance was
eighteen, rather than sixteen years of age.

Section 11 amends subdivisions 1 and 2 of Section 10.25 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 12 establishes an effective date.

JUSTIFICATION:  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 children of differing ages nor permitting consecutive
sentences. This bill affords greater protection to children by
providing a necessary deterrent to those who would 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 impose a higher penalty than presently applicable. This bill would
also extend the protection to children under the age of eighteen,
rather than under the age of sixteen. The imposition of consecutive,
rather than concurrent, sentences in this bill would add an especially
important deterrent to child pornographers, since the very nature of
their activity often may lead them to commit multiple criminal acts.
Child pornography is a uniquely heinous crime in that the child is
exploited at the time of the initial performance, as well as every
time the permanent recording is viewed. Thus, it seems clear that the
punishment should not be lost amid concurrent sentences. This bill
would ensure that such a criminal will be held separately responsible
for each of his or her criminal acts.

LEGISLATIVE HISTORY:  2012: S.622 Referred to Codes 2010: S.6257
Referred to Codes - A.2506 (Pretlow) Referred to Codes 2004: S.512-A
Passed Senate - A.4950-A (Pretlow) Referred to Codes 2002: S.851
Passed Senate - A.4266 (Robach) Referred to Codes 2000: S.859 Passed
Senate - A.1251 (Robach) Referred to Codes 1998: S.7444 Passed Senate
- A.4950 (Keane) Referred to Codes

FISCAL IMPLICATIONS: None

EFFECTIVE DATE: This act shall take effect on the first of November
following enactment.

S2266-2013 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    2266

                         2013-2014 Regular Sessions

                              I N  SENATE

                              January 15, 2013
                                 ___________

  Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
    printed to be committed to the Committee on Codes

  AN ACT to amend the penal law, in relation to  increasing  the  criminal
    penalties  for  sexual  performances  by  a  child  and in relation to
    providing for consecutive sentencing upon certain multiple convictions

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. Subdivisions 1 and 2 of section 263.00 of the penal law, as
  amended  by  chapter  1  of  the  laws  of  2000, are amended to read as
  follows:

    1. "Sexual performance" means any performance or part thereof  which[,
  for purposes of section 263.16 of this article,] includes sexual conduct
  by  a  child less than [sixteen] EIGHTEEN years of age [or, for purposes
  of section 263.05 or 263.15 of this article, includes sexual conduct  by
  a child less than seventeen years of age].
    2.  "Obscene  sexual  performance"  means  any performance which[, for
  purposes of section 263.11 of this article,] includes sexual conduct  by
  a  child  less than [sixteen] EIGHTEEN years of age [or, for purposes of
  section 263.10 of this article, includes sexual conduct by a child  less
  than  seventeen years of age,] in any material which is obscene, as such
  term is defined in section 235.00 of this chapter.
    S 2. The penal law is amended by adding a new section 263.03  to  read
  as follows:

  S 263.03 USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE.
    A  PERSON  IS  GUILTY OF THE USE OF A CHILD IN A SEXUAL PERFORMANCE IN
  THE FIRST DEGREE IF KNOWING THE CHARACTER AND CONTENT THEREOF HE OR  SHE
  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, HE OR SHE CONSENTS TO THE PARTICIPATION BY SUCH
  CHILD IN A SEXUAL PERFORMANCE.

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD06597-01-3

 S. 2266                             2

    USE  OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE IS A CLASS
  B FELONY.
    S  3.  Section 263.05 of the penal law, as amended by chapter 1 of the
  laws of 2000, is amended to read as follows:

   S 263.05 Use of a child in a sexual performance IN THE SECOND DEGREE.
    A person is guilty of the use of a child in a  sexual  performance  IN
  THE SECOND DEGREE if knowing the character and content thereof he OR SHE
  employs,  authorizes  or  induces a child less than [seventeen] EIGHTEEN
  years of age to engage in a sexual performance or being a parent,  legal
  guardian  or  custodian of such child, he OR SHE consents to the partic-
  ipation by such child in a sexual performance.
    Use of a child in a sexual performance IN THE SECOND DEGREE is a class
  C felony.
    S 4. The penal law is amended by adding a new section 263.08  to  read
  as follows:

  S 263.08 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST
             DEGREE.
    A  PERSON  IS  GUILTY  OF PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A
  CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
  OF, HE OR SHE 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
  IS A CLASS C FELONY.
    S  5.  Section 263.10 of the penal law, as amended by chapter 1 of the
  laws of 2000, is amended to read as follows:

  S 263.10 Promoting an obscene sexual  performance  by  a  child  IN  THE
             SECOND DEGREE.
    A  person  is  guilty  of promoting an obscene sexual performance by a
  child IN THE SECOND DEGREE when, knowing the character and content ther-
  eof, he OR SHE produces, directs or  promotes  any  obscene  performance
  which  includes sexual conduct by a child less than [seventeen] EIGHTEEN
  years of age.
    Promoting an obscene sexual performance  by  a  child  IN  THE  SECOND
  DEGREE is a class D felony.
    S 6. Section 263.11 of the penal law, as amended by chapter 456 of the
  laws of 2012, is amended to read as follows:

  S 263.11 Possessing an obscene sexual performance by a child.
    A  person  is  guilty of possessing an obscene sexual performance by a
  child when, knowing the character and content thereof, he OR  SHE  know-
  ingly  has  in  his  OR HER possession or control, or knowingly accesses
  with intent to view,  any  obscene  performance  which  includes  sexual
  conduct by a child less than [sixteen] EIGHTEEN years of age.
    Possessing an obscene sexual performance by a child is a class E felo-
  ny.
    S  7.  The penal law is amended by adding a new section 263.13 to read
  as follows:

  S 263.13 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
    A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE
  FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR  SHE
  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  IS  A
  CLASS C FELONY.
    S  8.  Section 263.15 of the penal law, as amended by chapter 1 of the
  laws of 2000, is amended to read as follows:

  S 263.15 Promoting a sexual performance by a child IN THE SECOND DEGREE.

 S. 2266                             3

    A person is guilty of promoting a sexual performance by a child IN THE
  SECOND DEGREE when, knowing the character and content thereof, he OR SHE
  produces, directs or promotes  any  performance  which  includes  sexual
  conduct by a child less than [seventeen] EIGHTEEN years of age.
    Promoting  a  sexual  performance by a child IN THE SECOND DEGREE is a
  class D felony.
    S 9. Section 263.16 of the penal law, as amended by chapter 456 of the
  laws of 2012, is amended to read as follows:

  S 263.16 Possessing a sexual performance by a child.
    A person is guilty of possessing a sexual performance by a child when,
  knowing the character and content thereof, he OR SHE  knowingly  has  in
  his  OR  HER possession or control, or knowingly accesses with intent to
  view, any performance which includes sexual conduct by a child less than
  [sixteen] EIGHTEEN years of age.
    Possessing a sexual performance by a child is a class E felony.
    S 10. Subdivision 1 of section 263.20 of the penal law, as amended  by
  chapter 1 of the laws of 2000, is amended to read as follows:

    1.  Under  this  article,  it shall be an affirmative defense that the
  defendant in good faith reasonably believed the person appearing in  the
  performance  was,  for  purposes  of  section  263.10, 263.11, 263.15 or
  263.16 of this article, [sixteen years of age or over or,  for  purposes
  of section 263.05, 263.10 or 263.15 of this article, seventeen] EIGHTEEN
  years of age or over.
    S  11.  The  opening  paragraph  of subdivision 1 and subdivision 2 of
  section 70.25 of the penal law, the opening paragraph of  subdivision  1
  as  amended  by  chapter  372  of  the laws of 1981 and subdivision 2 as
  amended by chapter 56 of the laws of 1984, are amended and a new  subdi-
  vision 6 is added to read as follows:

    Except  as  provided in subdivisions two, two-a [and], five AND SIX of
  this section, when multiple sentences of imprisonment are imposed  on  a
  person  at the same time, or when a person who is subject to any undisc-
  harged term of imprisonment imposed at a previous time  by  a  court  of
  this  state  is  sentenced  to  an  additional term of imprisonment, the
  sentence or sentences imposed by the court shall run either concurrently
  or consecutively with respect to each other and the undischarged term or
  terms in such manner as the court directs at the time  of  sentence.  If
  the  court does not specify the manner in which a sentence imposed by it
  is to run, the sentence shall run as follows:

    2. When more than one sentence of imprisonment is imposed on a  person
  for  two or more offenses committed through a single act or omission, or
  through an act or omission  which  in  itself  constituted  one  of  the
  offenses  and  also  was a material element of the other, the sentences,
  except if one or more of such sentences is for a  violation  of  section
  263.03,  263.05, 263.08, 263.10, 263.13, 263.15, OR 270.20 of this chap-
  ter, must run concurrently.
    6. WHEN A PERSON IS CONVICTED OF USE OF A CHILD IN A  SEXUAL  PERFORM-
  ANCE IN THE FIRST DEGREE AS DEFINED IN SECTION 263.03 OF THIS CHAPTER OR
  USE  OF  A CHILD IN A SEXUAL PERFORMANCE IN THE SECOND DEGREE AS DEFINED
  IN SECTION 263.05  OF  THIS  CHAPTER  OR  PROMOTING  AN  OBSCENE  SEXUAL
  PERFORMANCE  BY A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 263.08
  OF THIS CHAPTER OR PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN
  THE SECOND DEGREE AS DEFINED  IN  SECTION  263.10  OF  THIS  CHAPTER  OR
  PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED
  IN SECTION 263.13 OF THIS CHAPTER OR PROMOTING A SEXUAL PERFORMANCE BY A
  CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 263.15 OF THIS CHAPTER,

 S. 2266                             4

  AND  ANY  OTHER  CRIME,  THE SENTENCES FOR SUCH CRIMES SHALL RUN CONSEC-
  UTIVELY.
    S  12.  This  act  shall  take  effect  on  the first of November next
  succeeding the date on which it shall have become a law.