Bill S2266-2013

Increases the penalties for sexual performances by a child and provides for consecutive sentencing upon certain multiple convictions

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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Actions

  • Jan 14, 2014: RECOMMIT, ENACTING CLAUSE STRICKEN
  • Jan 8, 2014: REFERRED TO CODES
  • Jan 8, 2014: returned to senate
  • Jan 8, 2014: died in assembly
  • 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

Meetings

Calendars

Votes

VOTE: COMMITTEE VOTE: - Codes - May 20, 2013
Ayes (14): Nozzolio, Boyle, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, O'Mara, Squadron, Perkins, Espaillat, Hoylman, O'Brien
Ayes W/R (1): Krueger

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 2266 2013-2014 Regular Sessions IN 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.
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.
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,
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.

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