Senate Bill S6328

                                 BILL NUMBER:  S6328

 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 :
A.9615-A, 2008 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.