Establishes the crime of promoting an obscene sexual performance by a child in the first degree; definitions.
TITLE OF BILL: An act to amend the penal law, in relation to promoting an obscene sexual performance by a child in the first degree
PURPOSE OR GENERAL IDEA OF BILL: To create two different classes of the felony promoting an obscene sexual performance by a child; first degree which is a C felony and second degree which is a D felony.
SUMMARY OF SPECIFIC PROVISIONS: Section one amends the penal law by adding a new section 263.09, promoting an obscene sexual performance by a child in the first degree. Such crime shall be a C felony, when knowing the character and content, a person produces or directs ten or more obscene performances which include sexual conduct by a child less than seventeen years of age. For purposes of this section, a photograph shall mean a play, motion picture or dance, or a photographic session at which multiple photographs are taken.
Section two amends section 263.10 of the penal law, as amended by chapter 1 of the laws of 2000, by providing that 263.10, promoting an obscene sexual performance by a child, shall be a crime in the second degree. 263.10 is a D felony.
Section three provides that the effective date shall be the first of November next succeeding the date on which it shall have become law.
JUSTIFICATION: This bill responds to the increasing misuse of the internet as a medium for the sexual exploitation and abuse of children. A recent study by the National Center for Missing and Exploited Children reports that 1 in 4 children were subjected to unwanted exposure to pictures of nude individuals or people engaged in sexual activity on the internet last year. Child pornography is a particular threat, as it not only victimizes the children used in the production or pictures, but creates a ripple effect in the victimization of further children. Child abuse experts have documented the common tendency of pedophiles to lower the inhibitions of potential victims by exposing them to images of other children engaging in sexual activity.
No level of child pornography is harmless and the current statutory scheme reflects that insight. However, the unintended consequence of a "one size fits all" statutory scheme lends itself to unwarranted leniency for child pornographers overall. The high-volume dealer may escape criminal liability proportionate to the crime, both through a low top felony count and through the frequent conflation of multiple counts at sentencing.
A statutory amendment to provide for higher penalties with regard to child pornography offenses is urgently required to assist law enforcement in the face of evolving technology. Over the past decade, explosive growth in disk storage capacity has facilitated the
development of massive collections of child pornography, while evolving internet communication technology has enabled collection owners to organize sophisticated trade-or-profit-based mechanisms for its distribution. A higher penalty for a child pornography offense involving ten or more performances is consistent with other New York statutes governing distribution and possession of contraband. For example, in the area of narcotics and possession of stolen property, the state statutes are graded to reflect the insight that kingpins and mid-level operatives generally pose a greater threat to society than street-level criminals. The higher penalty imposed by this bill would also be in harmony with the effect of federal procedures in the area of child pornography.
Therefore, this legislation increases the penalty from a class D felony to a class C felony when there are ten or more performances.
PRIOR LEGISLATIVE HISTORY: 2010: S.6328 Referred to Codes 2008: A.9615A Referred to Codes
FISCAL IMPLICATION: None to the state.
EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 619 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________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 promoting an obscene sexu- al performance by a child in the first degree 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 263.09 to read as follows: S 263.09 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 OR DIRECTS TEN OR MORE OBSCENE PERFORMANCES, EACH OF WHICH INCLUDES SEXUAL CONDUCT BY A CHILD LESS THAN SEVENTEEN YEARS OF AGE. NOTWITHSTANDING SUBDIVISION FOUR OF SECTION 263.00 OF THIS ARTI- CLE, FOR PURPOSES OF THIS SECTION, A "PERFORMANCE" SHALL MEAN A PLAY, MOTION PICTURE OR DANCE, OR A PHOTOGRAPHIC SESSION AT WHICH MULTIPLE PHOTOGRAPHS ARE TAKEN. PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE IS A CLASS C FELONY. S 2. 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 produces, directs or promotes any obscene performance which includes sexual conduct by a child less than seventeen years of age. Promoting an obscene sexual performance by a child IN THE SECOND DEGREE is a class D felony. S 3. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00831-01-1