Bill Text: NY A08672 | 2013-2014 | General Assembly | Introduced
Bill Title: Relates to the promotion and possession of a sexual performance by a child; creates various degrees of crimes relating to promotion of an obscene sexual performance by a child, possession of an obscene sexual performance by a child, promoting a sexual performance by a child, and possessing a sexual performance by a child.
Spectrum: Slight Partisan Bill (Democrat 4-2)
Status: (Introduced - Dead) 2014-02-03 - referred to codes [A08672 Detail]
Download: New_York-2013-A08672-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 8672 I N A S S E M B L Y February 3, 2014 ___________ Introduced by M. of A. TITONE -- read once and referred to the Committee on Codes AN ACT to amend the penal law, in relation to disseminating indecent material to minors in the first degree, promoting and possessing an obscene sexual performance by a child, and promoting and possessing a sexual performance by a child; and to amend the civil rights law, in relation to a child victim's right of privacy THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivision 3 of section 235.21 of the penal law, as added 2 by chapter 600 of the laws of 1996, is amended to read as follows: 3 3. Knowing the character and content of the communication which, in 4 whole or in part, depicts OR DESCRIBES, EITHER IN WORDS OR IMAGES actual 5 or simulated nudity, sexual conduct or sado-masochistic abuse, and which 6 is harmful to minors, he OR SHE intentionally uses any TELEPHONIC COMMU- 7 NICATION, ELECTRONIC COMMUNICATION OR computer communication system 8 allowing the input, output, examination or transfer, of computer data or 9 computer programs from one computer to another, to initiate or engage in 10 such communication with a person who is a minor OR A PERSON WHO, REGARD- 11 LESS OF HIS OR HER AGE, IS A POLICE OFFICER AND THE ACTOR REASONABLY 12 BELIEVES SUCH OFFICER TO BE A MINOR. 13 S 2. Section 235.22 of the penal law, as added by chapter 600 of the 14 laws of 1996, subdivision 1 as amended by chapter 8 of the laws of 2007, 15 subdivision 2 as amended by chapter 264 of the laws of 2003, is amended 16 to read as follows: 17 S 235.22 Disseminating indecent material to minors in the first degree. 18 A person is guilty of disseminating indecent material to minors in the 19 first degree when: 20 1. knowing the character and content of the communication which, in 21 whole or in part, depicts or describes, either in words or images actual 22 or simulated nudity, sexual conduct or sado-masochistic abuse, and which 23 is harmful to minors, he OR SHE intentionally uses any TELEPHONIC COMMU- 24 NICATION, ELECTRONIC COMMUNICATION OR computer communication system 25 allowing the input, output, examination or transfer, of computer data or EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08037-01-3 A. 8672 2 1 computer programs from one computer to another, to initiate or engage in 2 such communication with a person who is a minor OR A PERSON WHO, REGARD- 3 LESS OF HIS OR HER AGE, IS A POLICE OFFICER AND THE ACTOR REASONABLY 4 BELIEVES SUCH OFFICER TO BE A MINOR; and 5 2. by means of such communication he OR SHE importunes, invites or 6 induces a minor OR A PERSON WHO, REGARDLESS OF HIS OR HER AGE, IS A 7 POLICE OFFICER AND THE ACTOR REASONABLY BELIEVES SUCH OFFICER TO BE A 8 MINOR to engage in sexual intercourse, oral sexual conduct or anal sexu- 9 al conduct, or sexual contact with him OR HER, or to engage in a sexual 10 performance, obscene sexual performance, or sexual conduct for his OR 11 HER benefit. 12 Disseminating indecent material to minors in the first degree is a 13 class D felony. 14 S 3. Subdivisions 1, 2, 4 and 6 of section 263.00 of the penal law, 15 subdivisions 1 and 2 as amended by chapter 1 of the laws of 2000 and 16 subdivisions 4 and 6 as added by chapter 910 of the laws of 1977, are 17 amended to read as follows: 18 1. "Sexual performance" means any performance or part thereof which[, 19 for purposes of section 263.16 of this article, includes sexual conduct 20 by a child less than sixteen years of age or, for purposes of section 21 263.05 or 263.15 of this article,] includes sexual conduct, OR WHAT 22 REASONABLY APPEARS TO BE SEXUAL CONDUCT, by a child less than seventeen 23 years of age. 24 2. "Obscene sexual performance" means any performance which[, for 25 purposes of section 263.11 of this article, includes sexual conduct by a 26 child less than sixteen years of age or, for purposes of section 263.10 27 of this article,] includes sexual conduct, OR WHAT REASONABLY APPEARS TO 28 BE SEXUAL CONDUCT, by a child less than seventeen years of age, in any 29 material which is obscene, as such term is defined in section 235.00 of 30 this chapter. 31 4. "Performance" means any play, motion picture, photograph [or], 32 dance, FILM, VIDEO, DIGITAL IMAGE OR DATA STORED ON A COMPUTER DISK OR 33 BY ELECTRONIC MEANS WHERE SUCH DATA IS CAPABLE OF CONVERSION INTO A 34 VISUAL IMAGE. Performance also means any other visual representation 35 exhibited before an audience. 36 6. "Simulated" means the explicit depiction of any of the conduct set 37 forth in subdivision three of this section which creates the appearance 38 of such conduct [and which exhibits any uncovered portion of the 39 breasts, genitals or buttocks]. 40 S 4. Section 263.10 of the penal law, as amended by chapter 1 of the 41 laws of 2000, is amended to read as follows: 42 S 263.10 Promoting an obscene sexual performance by a child IN THE 43 SECOND DEGREE. 44 A person is guilty of promoting an obscene sexual performance by a 45 child IN THE SECOND DEGREE when, knowing the character and content ther- 46 eof, he OR SHE produces, directs or promotes any obscene performance 47 which includes sexual conduct, OR WHAT REASONABLY APPEARS TO BE SEXUAL 48 CONDUCT, by a child less than seventeen years of age. 49 Promoting an obscene sexual performance by a child IN THE SECOND 50 DEGREE is a class D felony. 51 S 5. The penal law is amended by adding a new section 263.10-a to read 52 as follows: 53 S 263.10-A PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE 54 FIRST DEGREE. A. 8672 3 1 A PERSON IS GUILTY OF PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A 2 CHILD IN THE FIRST DEGREE, WHEN KNOWING THE CHARACTER AND CONTENT THERE- 3 OF, HE OR SHE PRODUCES, DIRECTS OR PROMOTES: 4 1. TEN OR MORE OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR 5 WHAT REASONABLY APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN 6 SEVENTEEN YEARS OF AGE, OR 7 2. ANY OBSCENE PERFORMANCE WHICH INCLUDES SEXUAL CONDUCT, OR WHAT 8 REASONABLY APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN 9 YEARS OF AGE AND HE OR SHE PROMOTES SUCH PERFORMANCE TO A CHILD LESS 10 THAN SEVENTEEN YEARS OF AGE, OR TO A PERSON WHO, REGARDLESS OF HIS OR 11 HER AGE, IS A POLICE OFFICER AND THE ACTOR REASONABLY BELIEVES SUCH 12 OFFICER TO BE A CHILD LESS THAN SEVENTEEN YEARS OF AGE. 13 PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE 14 IS A CLASS C FELONY. 15 S 6. Section 263.11 of the penal law, as amended by chapter 456 of the 16 laws of 2012, is amended to read as follows: 17 S 263.11 Possessing an obscene sexual performance by a child IN THE 18 THIRD DEGREE. 19 A person is guilty of possessing an obscene sexual performance by a 20 child IN THE THIRD DEGREE when, knowing the character and content there- 21 of, he OR SHE knowingly has in his OR HER possession or control, or 22 knowingly accesses with intent to view, any obscene performance which 23 includes sexual conduct, OR WHAT REASONABLY APPEARS TO BE SEXUAL 24 CONDUCT, by a child less than [sixteen] SEVENTEEN years of age. 25 Possessing an obscene sexual performance by a child IN THE THIRD 26 DEGREE is a class E felony. 27 S 7. The penal law is amended by adding a new section 263.12 to read 28 as follows: 29 S 263.12 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE 30 SECOND DEGREE. 31 A PERSON IS GUILTY OF POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A 32 CHILD IN THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THER- 33 EOF, HE OR SHE KNOWINGLY HAS IN HIS OR HER POSSESSION OR CONTROL TEN OR 34 MORE OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR WHAT REASON- 35 ABLY APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN YEARS 36 OF AGE. 37 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE SECOND 38 DEGREE IS A CLASS D FELONY. 39 S 8. The penal law is amended by adding a new section 263.13 to read 40 as follows: 41 S 263.13 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE 42 FIRST DEGREE. 43 A PERSON IS GUILTY OF POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A 44 CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE- 45 OF, HE OR SHE KNOWINGLY HAS IN HIS OR HER POSSESSION OR CONTROL ONE 46 HUNDRED OR MORE OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR 47 WHAT REASONABLY APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN 48 SEVENTEEN YEARS OF AGE. 49 POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST 50 DEGREE IS A CLASS C FELONY. 51 S 9. Section 263.15 of the penal law, as amended by chapter 1 of the 52 laws of 2000, is amended to read as follows: 53 S 263.15 Promoting a sexual performance by a child IN THE SECOND DEGREE. 54 A person is guilty of promoting a sexual performance by a child IN THE 55 SECOND DEGREE when, knowing the character and content thereof, he OR SHE 56 produces, directs or promotes any performance which includes sexual A. 8672 4 1 conduct, OR WHAT REASONABLY APPEARS TO BE SEXUAL CONDUCT, by a child 2 less than seventeen years of age. 3 Promoting a sexual performance by a child IN THE SECOND DEGREE is a 4 class D felony. 5 S 10. The penal law is amended by adding a new section 263.15-a to 6 read as follows: 7 S 263.15-A PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST 8 DEGREE. 9 A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE 10 FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR SHE 11 PRODUCES, DIRECTS OR PROMOTES: 12 1. TEN OR MORE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR WHAT 13 REASONABLY APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN 14 YEARS OF AGE, OR 15 2. ANY PERFORMANCE WHICH INCLUDES SEXUAL CONDUCT, OR WHAT REASONABLY 16 APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN YEARS OF 17 AGE AND HE OR SHE PROMOTES SUCH PERFORMANCE TO A CHILD LESS THAN SEVEN- 18 TEEN YEARS OF AGE, OR TO A PERSON WHO, REGARDLESS OF HIS OR HER AGE, IS 19 A POLICE OFFICER AND THE ACTOR REASONABLY BELIEVES SUCH OFFICER TO BE A 20 CHILD LESS THAN SEVENTEEN YEARS OF AGE. 21 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE IS A 22 CLASS C FELONY. 23 S 11. Section 263.16 of the penal law, as amended by chapter 456 of 24 the laws of 2012, is amended to read as follows: 25 S 263.16 Possessing a sexual performance by a child IN THE THIRD DEGREE. 26 A person is guilty of possessing a sexual performance by a child when, 27 knowing the character and content thereof, he OR SHE knowingly has in 28 his OR HER possession or control, or knowingly accesses with intent to 29 view, any performance which includes sexual conduct, OR WHAT REASONABLY 30 APPEARS TO BE SEXUAL CONDUCT, by a child less than [sixteen] SEVENTEEN 31 years of age. 32 Possessing a sexual performance by a child IN THE THIRD DEGREE is a 33 class E felony. 34 S 12. The penal law is amended by adding a new section 263.17 to read 35 as follows: 36 S 263.17 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE SECOND 37 DEGREE. 38 A PERSON IS GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN 39 THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR 40 SHE KNOWINGLY HAS IN HIS OR HER POSSESSION OR CONTROL TEN OR MORE 41 PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR WHAT REASONABLY APPEARS TO 42 BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN YEARS OF AGE. 43 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE IS A 44 CLASS D FELONY. 45 S 13. The penal law is amended by adding a new section 263.18 to read 46 as follows: 47 S 263.18 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE. 48 A PERSON IS GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN 49 THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR 50 SHE KNOWINGLY HAS IN HIS OR HER POSSESSION OR CONTROL ONE HUNDRED OR 51 MORE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR WHAT REASONABLY 52 APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN YEARS OF 53 AGE. 54 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE IS A 55 CLASS C FELONY. A. 8672 5 1 S 14. Subdivision 1 of section 263.20 of the penal law, as amended by 2 chapter 1 of the laws of 2000, is amended to read as follows: 3 1. Under this article, it shall be an affirmative defense that the 4 defendant in good faith reasonably believed the person appearing in the 5 performance was[, for purposes of section 263.11 or 263.16 of this arti- 6 cle, sixteen years of age or over or, for purposes of section 263.05, 7 263.10 or 263.15 of this article,] seventeen years of age or over. 8 S 15. Section 263.25 of the penal law, as amended by chapter 1 of the 9 laws of 2000, is amended to read as follows: 10 S 263.25 Proof of age of child. 11 Whenever it becomes necessary for the purposes of this article to 12 determine whether a child who participated in a sexual performance was 13 [under an age specified in this article] LESS THAN SEVENTEEN YEARS OF 14 AGE, the court or jury may make such determination by any of the follow- 15 ing: personal inspection of the child; inspection of [a photograph or 16 motion picture which constituted] the sexual performance; oral testimony 17 by a witness to the sexual performance as to the age of the child based 18 upon the child's appearance; expert medical testimony based upon the 19 appearance of the child in the sexual performance; and any other method 20 authorized by any applicable provision of law or by the rules of 21 evidence at common law. 22 S 16. Subdivision 1 of section 50-b of the civil rights law, as 23 amended by chapter 320 of the laws of 2006, is amended to read as 24 follows: 25 1. The identity of any victim of a sex offense, as defined in article 26 one hundred thirty, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED SIXTY-THREE, or 27 section 255.25, 255.26 or 255.27 of the penal law, or of an offense 28 involving the alleged transmission of the human immunodeficiency virus, 29 shall be confidential. No report, paper, picture, photograph, court file 30 or other documents, in the custody or possession of any public officer 31 or employee, which identifies such a victim shall be made available for 32 public inspection. No such public officer or employee shall disclose any 33 portion of any police report, court file, or other document, which tends 34 to identify such a victim except as provided in subdivision two of this 35 section. 36 S 17. This act shall take effect on the first of November next 37 succeeding the date on which it shall have become a law.