S T A T E O F N E W Y O R K
________________________________________________________________________
9557
I N A S S E M B L Y
January 15, 2010
___________
Introduced by M. of A. SCARBOROUGH -- read once and referred to the
Committee on Codes
AN ACT to amend the penal law, the public health law, the criminal
procedure law and the civil rights law, in relation to certain crimes
against children
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 260.08 to
read as follows:
S 260.08 PROHIBITION OF THE SALE OF CHILDREN THROUGH ADOPTION, SURROGATE
PARENTING OR OTHER MEANS.
1. A PERSON, CORPORATION, OR ASSOCIATION SHALL NOT ADVERTISE IN ANY
MANNER THAT IT WILL RECEIVE CHILDREN FOR THE PURPOSE OF ADOPTION OR
PURCHASE. A NEWSPAPER PUBLISHED IN THE STATE OF NEW YORK OR ANY OTHER
PUBLICATION WHICH IS PREPARED, SOLD, OR DISTRIBUTED IN THE STATE OF NEW
YORK SHALL NOT CONTAIN AN ADVERTISEMENT FROM A PERSON, CORPORATION,
ASSOCIATION OR OTHER ENTITY WHICH SOLICITS CHILDREN FOR ADOPTION OR
SOLICITS THE CUSTODY OF CHILDREN WITH INTENT TO MAKE A PROFIT FROM SUCH
SOLICITATION.
2. A PERSON, AGENCY, INSTITUTION OR INTERMEDIARY SHALL NOT SELL OR
PURCHASE OR PROCURE FOR SALE ANY CHILD FOR THE PURPOSE OF ADOPTION OR
SEXUAL PERFORMANCE, SEX TRAFFICKING AS DEFINED IN SECTION 230.34 OF THIS
CHAPTER OR CHILD LABOR TRAFFICKING AS DEFINED UNDER SECTION 135.34 OF
THIS CHAPTER OR ANY OTHER PURPOSE, INCLUDING TERMINATION OF PARENTAL
RIGHTS. THIS SECTION SHALL NOT PROHIBIT AN AUTHORIZED VOLUNTARY AGENCY
FROM CHARGING A FEE FOR ADOPTION SERVICES.
3. A PERSON, AGENCY, INSTITUTION OR INTERMEDIARY SHALL NOT BE A PARTY
TO A CONTRACT OR AGREEMENT WHICH WOULD COMPENSATE A WOMAN FOR HER ARTI-
FICIAL INSEMINATION AND SUBSEQUENT TERMINATION OF PARENTAL RIGHTS TO A
CHILD BORN AS A RESULT OF THAT ARTIFICIAL INSEMINATION. A PERSON, AGEN-
CY, INSTITUTION OR INTERMEDIARY SHALL NOT RECEIVE COMPENSATION FOR THE
FACILITATION OF CONTRACTS OR AGREEMENTS AS PROSCRIBED BY THIS SUBDIVI-
SION. CONTRACTS OR AGREEMENTS ENTERED INTO IN VIOLATION OF THIS SUBDIVI-
SION SHALL BE VOID.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14758-01-9
A. 9557 2
S 2. 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] EIGHTEEN 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] EIGHTEEN years of age, in any material which is
obscene, as such term is defined in section 235.00 of this chapter.
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.
A person is guilty of the use of a child in a sexual performance 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 participation by such child in
a sexual performance.
Use of a child in a sexual performance is a class C felony.
S 4. 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.
A person is guilty of promoting an obscene sexual performance by a
child when, knowing the character and content thereof, he OR SHE produc-
es, 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 is a class D felo-
ny.
S 5. Section 263.11 of the penal law, as added by chapter 11 of the
laws of 1996, 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 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 6. 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.
A person is guilty of promoting a sexual performance by a child 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 is a class D felony.
S 7. Section 263.16 of the penal law, as added by chapter 11 of the
laws of 1996, 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
A. 9557 3
his OR HER possession or control 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 8. 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 263.11 or 263.16 of this arti-
cle, [sixteen] EIGHTEEN 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 9. Subdivision 1 of section 263.30 of the penal law, as added by
chapter 431 of the laws of 2008, is amended to read as follows:
1. A person is guilty of facilitating a sexual performance by a child
with a controlled substance or alcohol when he or she:
(a) (i) knowingly and unlawfully possesses a controlled substance as
defined in section thirty-three hundred six of the public health law or
any controlled substance that requires a prescription to obtain, (ii)
administers that substance to a person under the age of [seventeen]
EIGHTEEN without such person's consent, (iii) intends to commit against
such person conduct constituting a felony as defined in section 263.05,
263.10, or 263.15 of this article, and (iv) does so commit or attempt to
commit such conduct against such person; or
(b) (i) administers alcohol to a person under the age of [seventeen]
EIGHTEEN without such person's consent, (ii) intends to commit against
such person conduct constituting a felony defined in section 263.05,
263.10, or 263.15 of this article, and (iii) does so commit or attempt
to commit such conduct against such person.
S 10. The penal law is amended by adding a new section 135.34 to read
as follows:
S 135.34 CHILD LABOR TRAFFICKING.
A PERSON IS GUILTY OF CHILD LABOR TRAFFICKING IF HE OR SHE COMPELS OR
INDUCES ANOTHER PERSON LESS THAN EIGHTEEN YEARS OF AGE TO ENGAGE IN
LABOR OR RECRUITS, ENTICES, HARBORS, OR TRANSPORTS SUCH OTHER PERSON BY
MEANS OF INTENTIONALLY:
1. UNLAWFULLY PROVIDING A CONTROLLED SUBSTANCE TO SUCH PERSON WITH
INTENT TO IMPAIR SAID PERSON'S JUDGMENT;
2. REQUIRING THAT THE LABOR BE PERFORMED TO RETIRE, REPAY, OR SERVICE
A REAL OR PURPORTED DEBT THAT THE ACTOR HAS CAUSED BY A SYSTEMATIC ONGO-
ING COURSE OF CONDUCT WITH INTENT TO DEFRAUD SUCH PERSON;
3. WITHHOLDING, DESTROYING, OR CONFISCATING ANY ACTUAL OR PURPORTED
PASSPORT, IMMIGRATION DOCUMENT, OR ANY OTHER ACTUAL OR PURPORTED GOVERN-
MENT IDENTIFICATION DOCUMENT, OF ANOTHER PERSON WITH INTENT TO IMPAIR
SAID PERSON'S FREEDOM OF MOVEMENT; PROVIDED, HOWEVER, THAT THIS SUBDIVI-
SION SHALL NOT APPLY TO AN ATTEMPT TO CORRECT A SOCIAL SECURITY ADMINIS-
TRATION RECORD OR IMMIGRATION AGENCY RECORD IN ACCORDANCE WITH ANY
LOCAL, STATE, OR FEDERAL AGENCY REQUIREMENT, WHERE SUCH ATTEMPT IS NOT
MADE FOR THE PURPOSE OF ANY EXPRESS OR IMPLIED THREAT;
4. USING FORCE OR ENGAGING IN ANY SCHEME, PLAN OR PATTERN TO COMPEL OR
INDUCE SUCH PERSON TO ENGAGE IN OR CONTINUE TO ENGAGE IN LABOR ACTIVITY
BY MEANS OF INSTILLING A FEAR IN SUCH PERSON THAT, IF THE DEMAND IS NOT
COMPLIED WITH, THE ACTOR OR ANOTHER WILL DO ONE OR MORE OF THE FOLLOW-
ING:
(A) CAUSE PHYSICAL INJURY, SERIOUS PHYSICAL INJURY, OR DEATH TO A
PERSON; OR
(B) CAUSE DAMAGE TO PROPERTY, OTHER THAN THE PROPERTY OF THE ACTOR; OR
A. 9557 4
(C) ENGAGE IN OTHER CONDUCT CONSTITUTING A FELONY OR UNLAWFUL IMPRI-
SONMENT IN THE SECOND DEGREE IN VIOLATION OF SECTION 135.05 OF THIS
ARTICLE; OR
(D) ACCUSE SOME PERSON OF A CRIME OR CAUSE CRIMINAL CHARGES OR DEPOR-
TATION PROCEEDINGS TO BE INSTITUTED AGAINST SUCH PERSON; PROVIDED,
HOWEVER, THAT IT SHALL BE AN AFFIRMATIVE DEFENSE TO THIS SUBDIVISION
THAT THE DEFENDANT REASONABLY BELIEVED THE THREATENED CHARGE TO BE TRUE
AND THAT HIS OR HER SOLE PURPOSE WAS TO COMPEL OR INDUCE THE VICTIM TO
TAKE REASONABLE ACTION TO MAKE GOOD THE WRONG WHICH WAS THE SUBJECT OF
SUCH THREATENED CHARGE; OR
(E) EXPOSE A SECRET OR PUBLICIZE AN ASSERTED FACT, WHETHER TRUE OR
FALSE, TENDING TO SUBJECT SOME PERSON TO HATRED, CONTEMPT OR RIDICULE;
OR
(F) TESTIFY OR PROVIDE INFORMATION OR WITHHOLD TESTIMONY OR INFORMA-
TION WITH RESPECT TO ANOTHER'S LEGAL CLAIM OR DEFENSE; OR
(G) USE OR ABUSE HIS OR HER POSITION AS A PUBLIC SERVANT BY PERFORMING
SOME ACT WITHIN OR RELATED TO HIS OR HER OFFICIAL DUTIES, OR BY FAILING
OR REFUSING TO PERFORM AN OFFICIAL DUTY, IN SUCH MANNER AS TO AFFECT
SOME PERSON ADVERSELY.
CHILD LABOR TRAFFICKING IS A CLASS C FELONY.
S 11. The closing paragraph of section 230.34 of the penal law, as
added by chapter 74 of the laws of 2007, is amended to read as follows:
Sex trafficking is a class B felony; PROVIDED HOWEVER THAT IF THE
VICTIM IS UNDER THE AGE OF EIGHTEEN YEARS OF AGE SUCH OFFENSE SHALL BE A
CLASS A-I FELONY.
S 12. Subdivision 1 of section 4307 of the public health law, as
amended by chapter 362 of the laws of 2009, is amended to read as
follows:
1. It shall be unlawful for any person to knowingly acquire, receive,
or otherwise transfer for valuable consideration any human organ for use
in human transplantation. The term human organ means the human kidney,
liver, heart, lung, bone marrow, and any other human organ or tissue as
may be designated by the commissioner but shall exclude blood. The term
"valuable consideration" does not include the reasonable payments asso-
ciated with the removal, transportation, implantation, processing, pres-
ervation, quality control, and storage of a human organ or the expenses
of travel, housing, and lost wages incurred by the donor of a human
organ in connection with the donation of the organ. Any person who
violates this section shall be guilty of a class E felony; PROVIDED,
HOWEVER, THAT IF THE HUMAN ORGAN IS FROM A PERSON UNDER EIGHTEEN YEARS
OF AGE SUCH OFFENSE SHALL BE A CLASS D FELONY.
S 13. Subdivision 1 of section 2320 of the public health law is
amended to read as follows:
1. Whoever shall erect, establish, continue, maintain, use, own, or
lease any building, erection, or place used for the purpose of lewdness,
assignation, [or], prostitution, PROMOTING, PRODUCING OR DISTRIBUTING A
SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN ARTICLE TWO HUNDRED
SIXTY-THREE OF THE PENAL LAW OR SALE OF A CHILD THROUGH ADOPTION, SURRO-
GATE PARENTING OR OTHER MEANS AS DEFINED IN SECTION 260.08 OF SUCH LAW
is guilty of maintaining a nuisance.
S 14. Subdivision 1 of section 65.00 of the criminal procedure law, as
amended by chapter 320 of the laws of 2006, is amended to read as
follows:
1. "Child witness" means a person [fourteen] EIGHTEEN years old or
less who is or will be called to testify in a criminal proceeding, other
than a grand jury proceeding, concerning an offense defined in article
A. 9557 5
one hundred thirty of the penal law or section 255.25, 255.26 or 255.27
of such law which is the subject of such criminal proceeding.
S 15. The section heading and subdivision 1 of section 50-b of the
civil rights law, the section heading as amended by chapter 643 of the
laws of 1999 and subdivision 1 as amended by chapter 320 of the laws of
2006, are amended to read as follows:
Right of privacy; victims of sex offenses [or], offenses involving the
transmission of the human immunodeficiency virus AND CHILD VICTIMS OF
SALE, PROMOTION OF PROSTITUTION AND SEXUAL PERFORMANCE BY A CHILD. 1.
The identity of any victim of a sex offense, as defined in article one
hundred thirty or section 255.25, 255.26 or 255.27 OR ARTICLE TWO
HUNDRED SIXTY-THREE of the penal law, or of an offense involving the
alleged transmission of the human immunodeficiency virus, OR OF AN
OFFENSE INVOLVING THE PROHIBITED SALE OF A CHILD THROUGH ADOPTION,
SURROGATE PARENTING OR OTHER MEANS, AS DEFINED IN SECTION 260.08 OF THE
PENAL LAW, OR A CHILD VICTIM OF AN OFFENSE INVOLVING PROMOTING PROSTITU-
TION AS DEFINED IN ARTICLE TWO HUNDRED THIRTY OF THE PENAL LAW shall be
confidential. No report, paper, picture, photograph, court file or other
documents, in the custody or possession of any public officer or employ-
ee, which identifies such a victim shall be made available for public
inspection. No such public officer or employee shall disclose any
portion of any police report, court file, or other document, which tends
to identify such a victim except as provided in subdivision two of this
section.
S 16. This act shall take effect immediately; provided that the amend-
ments to subdivision 1 of section 65.00 of the criminal procedure law
made by section fourteen of this act shall not affect the repeal of such
section and shall be deemed repealed therewith.