NY State Senate Bill 2015-S5560A

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
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Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 22, 2016	print number 5560a
Feb 22, 2016	amend and recommit to codes
Jan 06, 2016	referred to codes
May 14, 2015	referred to codes

Bill Amendments

Original

A (Active)

2015-S5560 - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §130.98, amd §§60.13 & 70.80, Pen L; amd §168-a, Cor L; amd §380.50, CP L; amd §§61, 62 & 64, Civ Rts L; amd §10.03, Ment Hyg L; amd §509-cc, V & T L
Versions Introduced in 2017-2018 Legislative Session:: S3926

2015-S5560 - Summary

Creates the crime of sexual exploitation of a child.

2015-S5560 - Sponsor Memo

                                BILL NUMBER:S5560

TITLE OF BILL:

An act to amend the penal law, the correction law, the criminal proce-
dure law, the civil rights law, the mental hygiene law and the vehicle
and traffic law, in relation to creating the crime of sexual exploita-
tion 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, estab-
lishing the crime of sexual exploitation of a child. A person is guilty
of sexual exploitation of a child when:

(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 with-
in 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 super-
vision 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 petition-
er for a change of name stands convicted of that requires notice of such
petition to the district attorney of every county in which the petition-
er 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 aggra-
vated 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 subse-
quently 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 eigh-
teen 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 subse-
quently 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 geni-
tal 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 infi-
bulation 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 proce-
dure 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 pornog-
raphy 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 trans-
mitted 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 inter-
state or foreign commerce or mailed.

There is no state counterpart to the federal crime of sexual exploita-
tion 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 strin-
gent 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 trans-
mission, for the purpose of producing any visual depiction of such
conduct, effectively removing any loophole in the federal law and impos-
ing 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 immediately.

2015-S5560 - Bill Text download pdf

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

                                  5560

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 14, 2015
                               ___________

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  proce-
  dure law, the civil rights law, the mental hygiene law and the vehicle
  and traffic law, in relation to creating the crime of sexual exploita-
  tion of a child

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

  Section 1. The penal law is amended by adding a new section 130.98  to
read as follows:
S 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.
                                                           LBD08369-03-5

S. 5560                             2

  S 2. Section 60.13 of the penal law, as added by chapter 7 of the laws
of 2007, is amended to read as follows:
S 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 sexu-
ally motivated felony, or patronizing a prostitute in the  first  degree
as  defined  in section 230.06 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.
  S 3. Paragraph (a) of subdivision 1 of section 70.80 of the penal law,
as added by chapter 7 of the  laws  of  2007,  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 prosti-
tute  in  the first degree as defined in section 230.06 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.
  S  4.  Subparagraph  (i)  of paragraph (a) of subdivision 2 of section
168-a of the correction law, as amended by chapter 405 of  the  laws  of
2008, 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 seven-
teen years of age, 230.05 or  230.06,  or  subdivision  two  of  section
230.30,  or  section  230.32  or  230.33  of  the  penal  law, or (ii) a
conviction of or a conviction for  an  attempt  to  commit  any  of  the
provisions  of section 235.22 of the penal law, or (iii) a conviction of
or a conviction for an attempt to commit any provisions of the foregoing
sections committed or attempted as  a  hate  crime  defined  in  section
485.05  of  the  penal law or as a crime of terrorism defined in section
490.25 of such law or as a sexually motivated felony defined in  section
130.91 of such law; or
  S 5. Subdivision 6 of section 380.50 of the criminal procedure law, as
amended  by  chapter  320  of  the  laws  of 2006, 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
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, 255.25, 255.26, 255.27, article two hundred sixty-three, 135.10,
135.25, 130.98, 230.05, 230.06, subdivision two  of  section  230.30  or
230.32,  the  prosecutor  shall,  within sixty days of the imposition of

S. 5560                             3

sentence, provide the victim with a form on which the victim  may  indi-
cate  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 defend-
ant,  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.
  S  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  super-
vision  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.
  S  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 super-
vision 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.
  S 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

S. 5560                             4

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  certi-
fied  copy  thereof  and  shall be entered in the clerk's minutes of the
proceeding.
  S 9. Subdivision (p) of section 10.03 of the mental  hygiene  law,  as
added by chapter 7 of the laws of 2007, 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 prostitute in the first
degree as defined in section 230.06 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.
  S  10. Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
and traffic law, as amended by chapter 400  of  the  laws  of  2011,  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, 230.20, 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 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.
  S 11. This act shall take effect on the ninetieth day after  it  shall
have become a law.

2015-S5560A (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §130.98, amd §§60.13 & 70.80, Pen L; amd §168-a, Cor L; amd §380.50, CP L; amd §§61, 62 & 64, Civ Rts L; amd §10.03, Ment Hyg L; amd §509-cc, V & T L
Versions Introduced in 2017-2018 Legislative Session:: S3926

2015-S5560A (ACTIVE) - Summary

Creates the crime of sexual exploitation of a child.

2015-S5560A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5560A

 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:

(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.

2015-S5560A (ACTIVE) - Bill Text download pdf

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

                                 5560--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 14, 2015
                               ___________

Introduced  by  Sen. RITCHIE -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes  --  recommitted  to
  the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to amend the penal law, the correction law, the criminal proce-
  dure law, the civil rights law, the mental hygiene law and the vehicle
  and traffic law, in relation to creating the crime of sexual exploita-
  tion of a child

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

  Section  1. The penal law is amended by adding a new section 130.98 to
read as follows:
S 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08369-05-6

S. 5560--A                          2

  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.
  S  2. Section 60.13 of the penal law, as amended by chapter 368 of the
laws of 2015, is amended to read as follows:
S 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 sexu-
ally  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 pros-
titution in the second degree as defined in section 230.12 of this chap-
ter, 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.
  S 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.
  S 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  seven-
teen  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

S. 5560--A                          3

  S 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
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.
  S  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  super-
vision  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.
  S  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 super-
vision 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

S. 5560--A                          4

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.
  S  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  certi-
fied  copy  thereof  and  shall be entered in the clerk's minutes of the
proceeding.
  S 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, aggra-
vated 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.
  S  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,

S. 5560--A                          5

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
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.
  S 11. This act shall take effect on the ninetieth day after  it  shall
have become a law.

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Senate Bill S5560A

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

Bill Amendments

2015-S5560 - Details

2015-S5560 - Summary

2015-S5560 - Sponsor Memo

2015-S5560 - Bill Text download pdf

2015-S5560A (ACTIVE) - Details

2015-S5560A (ACTIVE) - Summary

2015-S5560A (ACTIVE) - Sponsor Memo

2015-S5560A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S5560A

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Sponsored By

Patty Ritchie

Archive: Last Bill Status - In Senate Committee Codes Committee

Bill Amendments

2015-S5560 - Details

2015-S5560 - Summary

2015-S5560 - Sponsor Memo

2015-S5560 - Bill Text download pdf

2015-S5560A (ACTIVE) - Details

2015-S5560A (ACTIVE) - Summary

2015-S5560A (ACTIVE) - Sponsor Memo

2015-S5560A (ACTIVE) - Bill Text download pdf

Comments