senate Bill S6533

Establishes the crime of promoting an obscene sexual performance by a child in the first degree

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 04 / Feb / 2014
    • REFERRED TO CODES

Summary

Establishes the crime of promoting an obscene sexual performance by a child in the first degree; defines performance.

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Bill Details

See Assembly Version of this Bill:
A4087
Versions:
S6533
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Add §263.09, amd §263.10, Pen L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S619, A260
2009-2010: S6328, A760
2007-2008: A9615A, A9615A

Sponsor Memo

BILL NUMBER:S6533

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: 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 PROVISIONS:

Section 1: 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 2: 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 3: 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.

LEGISLATIVE HISTORY: 2013: S.2260 Referred to Codes 2012: S.619
Referred to Codes 2010: S.6328 Referred to Codes 2008: A.9615-A
Referred to Codes

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the first of November
next succeeding the date on which it shall have become a law.

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

                                  6533

                            I N  S E N A T E

                            February 4, 2014
                               ___________

Introduced  by Sen. CARLUCCI -- 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.
                                                           LBD04477-01-3

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