NY State Senate Bill 2011-S1904

Senate Bill S1904

2011-2012 Legislative Session

Increases the penalties for sexual performances by a child and provides for consecutive sentencing upon certain multiple convictions

download bill text pdf

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 14, 2011	referred to codes

2011-S1904 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§263.00, 263.05, 263.10, 263.15, 263.20 & 70.25, add §§263.03, 263.08 & 263.13, Pen L
Versions Introduced in 2009-2010 Legislative Session:: S916

2011-S1904 (ACTIVE) - Summary

Increases the penalties for persons convicted of child pornography; creates a new crime of use of a child in a sexual performance in the first degree and imposes consecutive sentencing upon certain multiple convictions of child pornography statutes.

2011-S1904 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S1904

TITLE OF BILL:
An act
to amend the penal law, in relation to increasing the criminal penalties
for sexual performances by a child and in relation to providing for
consecutive sentencing upon certain multiple convictions

PURPOSE/SUMMARY OF PROVISIONS:
This bill would amend article 263 of the
penal law to increase penalties for child pornography and to provide
for consecutive sentencing of persons who are found guilty of a child
pornography offense and another crime.

SUMMARY:
Section 1: This bill would amend section 263.00 of the penal
law to change the definitions of "sexual performance" and "obscene
sexual performance" to include sexual conduct by a child less than
eighteen years of age. Presently, the section defines such terms to
include sexual conduct by a child less than sixteen years of age.

Section 2: This bill would also add a new section 263.03 to the penal
law to establish a new crime of use of a child in a sexual
performance in the first degree. A person would be guilty of such
crime, when, knowing the character and content thereof he employs,
authorizes or induces a child less than twelve years of age to engage

in a sexual performance or being a parent, legal guardian or
custodian of such child, consents to the participation by such child
in a sexual performance. The use of a child in a sexual performance in
the first degree would be a class B felony.

Section 3: This bill would further amend section 263.05 of the penal
law to reclassify the current crime of use of a child in a sexual
performance as use of a child in a sexual performance in the second
degree. It would also amend this section to increase the age of the
children protected by this section from children less than sixteen
years of age to children less than eighteen years of age. The conduct
prescribed by the use of a child in a sexual performance in the
second degree would remain a class C felony.

Section 4: This bill would additionally add a new section 263.08 to
the penal law to establish a new crime of promoting an obscene sexual
performance by a child in the first degree. A person would be guilty
of such crime, when, knowing the character and content thereof, he
produces, directs or promotes any obscene performance which includes
sexual conduct by a child less than twelve years of age. promoting an
obscene sexual performance by a child in the first degree would be a
class C felony.

Section 5: This bill would also amend section 263.10 of the penal law to
reclassify the current crime of promoting an obscene sexual
performance by a child as promoting an obscene sexual performance by
a child in the second degree. It would also amend this section to
increase the age of the children protected by this section from
children less than sixteen years of age to children less than
eighteen years of age. The conduct prescribed by the promoting of an


obscene sexual performance by a child in the second degree would
remain a class D felony.

Section 6: This bill would further add a new section 263.13 to the
penal law to establish a new crime of promoting a sexual performance
by a child in the first degree. A person would be guilty of such
crime, when, knowing the character and content thereof, he produces.
directs or promotes any performance which includes sexual conduct by
a child less than twelve years of age. Promoting a sexual performance
by a child in the first degree would be a class C felony.

Section 7: This bill would also amend section 263.15 of the penal law
to reclassify the current crime of promoting a sexual performance by
a child as promoting a sexual performance by a child in the second
degree.
It would also amend this section to increase the age of the children
protected by this section from children less than sixteen years of
age to children less than eighteen years of age. The conduct
prescribed by the promoting of a sexual performance by a child in the
second degree would remain a class D felony.

Section 8: This bill would additionally amend section 263.20 of the
penal law to provide, that under this article the defendant shall
have an affirmative defense if he, in good faith, reasonably believed
that the person appearing in the performance was eighteen years of
age. No such affirmative defense would be available to the defendant,
for the first degree crimes of this article, simply because the
defendant believed the child was between the ages of twelve years and
eighteen.

Section 9: This bill would also amend section 70.25 of the penal law
to provide for sentences of imprisonment to run consecutively .when a
person is convicted of a child pornography crime and any other crime.

Section 10: This bill would take effect on the first day of November
next succeeding the date on which it shall have become a law.

JUSTIFICATION:
Child pornography exploits children, who, as the most
vulnerable members of our society, are most deserving of protection
by our criminal justice system. The current statutory provisions
relating to the use of a child in a sexual performance, and the
promotion of an obscene sexual performance by a child, are
inadequate, drawing no distinction between sexual conduct of children
of different ages nor permitting concurrent sentences. This bill
affords greater protection to children by providing the essential
deterrence to those who seek to use children in sexual performances.
Specifically, new sections of the penal law would be created to
protect children under the age of twelve and would impose a higher
penalty than presently applicable. This bill would also extend
protection to children under the age of eighteen, rather than under
the age of sixteen.

Criminals who exploit children should not be permitted to have their
sentences effectively merged. This bill addresses this issue by requir-
ing that when a defendant is convicted of a child pornography crime,
and any other crime, he must serve consecutive sentences, and not


have his sentences run concurrently. This provision adds an
especially important deterrent to child pornographers, since the very
nature of their activity, more often than not, leads them to commit
multiple criminal acts. Under a system of consecutive sentencing,
such a criminal will be held responsible for all his criminal acts,
and not just one of them. There is no more heinous act than a crime
which is committed against society's most innocent members, our
children. It is imperative to our society's future to protect all of
our children and afford them every opportunity to become productive
and well-adjusted members of our society.

Child pornography degrades our children and our entire society to its
lowest possible level. This bill would take the necessary measures to
protect our children from those who would scar and exploit them for
their own warped gratification or profit. It would also send a strong
message that New York is not a state that will tolerate this
activity, and that we will enact appropriate penalties that fit the
seriousness of this crime.

FISCAL IMPLICATIONS:
None.

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

2011-S1904 (ACTIVE) - Bill Text download pdf

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

                                  1904

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 14, 2011
                               ___________

Introduced  by  Sen.  KRUGER -- 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  increasing  the  criminal
  penalties  for  sexual  performances  by  a  child  and in relation to
  providing for consecutive sentencing upon certain multiple convictions

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. 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 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 years of age or, for purposes of section 263.10
of this article, includes sexual conduct by a child  less  than  [seven-
teen]  EIGHTEEN  years of age, in any material which is obscene, as such
term is defined in section 235.00 of this chapter.
  S 2. The penal law is amended by adding a new section 263.03  to  read
as follows:
S 263.03 USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE.
  A  PERSON  IS  GUILTY OF THE USE OF A CHILD IN A SEXUAL PERFORMANCE IN
THE FIRST DEGREE  IF  KNOWING  THE  CHARACTER  AND  CONTENT  THEREOF  HE
EMPLOYS,  AUTHORIZES OR INDUCES A CHILD LESS THAN TWELVE YEARS OF AGE TO
ENGAGE IN A SEXUAL PERFORMANCE OR BEING  A  PARENT,  LEGAL  GUARDIAN  OR
CUSTODIAN  OF SUCH CHILD, HE CONSENTS TO THE PARTICIPATION BY SUCH CHILD
IN A SEXUAL PERFORMANCE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07235-01-1

S. 1904                             2

  USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE IS A  CLASS
B FELONY.
  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 IN THE SECOND DEGREE.
  A person is guilty of the use of a child in a  sexual  performance  IN
THE  SECOND  DEGREE  if  knowing  the  character  and content thereof he
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 consents to the participation by
such child in a sexual performance.
  Use of a child in a sexual performance IN THE SECOND DEGREE is a class
C felony.
  S 4. The penal law is amended by adding a new section 263.08  to  read
as follows:
S 263.08 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 PRODUCES, DIRECTS  OR  PROMOTES  ANY  OBSCENE  PERFORMANCE  WHICH
INCLUDES SEXUAL CONDUCT BY A CHILD LESS THAN TWELVE YEARS OF AGE.
  PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE
IS A CLASS C FELONY.
  S  5.  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] EIGHTEEN years
of age.
  Promoting an obscene sexual performance  by  a  child  IN  THE  SECOND
DEGREE is a class D felony.
  S  6.  The penal law is amended by adding a new section 263.13 to read
as follows:
S 263.13 PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE
FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE PRODUC-
ES, DIRECTS OR PROMOTES ANY PERFORMANCE WHICH INCLUDES SEXUAL CONDUCT BY
A CHILD LESS THAN TWELVE YEARS OF AGE.
  PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE  FIRST  DEGREE  IS  A
CLASS C FELONY.
  S  7.  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 IN THE SECOND DEGREE.
  A person is guilty of promoting a sexual performance by a child IN THE
SECOND DEGREE when,  knowing  the  character  and  content  thereof,  he
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 IN THE SECOND  DEGREE  is  a
class D 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

S. 1904                             3

performance was, for purposes of section 263.11 or 263.16 of this  arti-
cle,  sixteen  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.  The  opening  paragraph  of  subdivision 1 and subdivision 2 of
section 70.25 of the penal law, the opening paragraph of  subdivision  1
as  amended  by  chapter  372  of  the laws of 1981 and subdivision 2 as
amended by chapter 56 of the laws of 1984, are amended and a new  subdi-
vision 6 is added to read as follows:
  Except  as  provided in subdivisions two, two-a [and], five AND SIX of
this section, when multiple sentences of imprisonment are imposed  on  a
person  at the same time, or when a person who is subject to any undisc-
harged term of imprisonment imposed at a previous time  by  a  court  of
this  state  is  sentenced  to  an  additional term of imprisonment, the
sentence or sentences imposed by the court shall run either concurrently
or consecutively with respect to each other and the undischarged term or
terms in such manner as the court directs at the time  of  sentence.  If
the  court does not specify the manner in which a sentence imposed by it
is to run, the sentence shall run as follows:
  2. When more than one sentence of imprisonment is imposed on a  person
for  two or more offenses committed through a single act or omission, or
through an act or omission  which  in  itself  constituted  one  of  the
offenses  and  also  was a material element of the other, the sentences,
except if one or more of such sentences is for a  violation  of  section
263.03,  263.05, 263.08, 263.10, 263.13, 263.15, OR 270.20 of this chap-
ter, must run concurrently.
  6. WHEN A PERSON IS CONVICTED OF USE OF A CHILD IN A  SEXUAL  PERFORM-
ANCE IN THE FIRST DEGREE AS DEFINED IN SECTION 263.03 OF THIS CHAPTER OR
USE  OF  A CHILD IN A SEXUAL PERFORMANCE IN THE SECOND DEGREE AS DEFINED
IN SECTION 263.05  OF  THIS  CHAPTER  OR  PROMOTING  AN  OBSCENE  SEXUAL
PERFORMANCE  BY A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 263.08
OF THIS CHAPTER OR PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN
THE SECOND DEGREE AS DEFINED  IN  SECTION  263.10  OF  THIS  CHAPTER  OR
PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE AS DEFINED
IN SECTION 263.13 OF THIS CHAPTER OR PROMOTING A SEXUAL PERFORMANCE BY A
CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 263.15 OF THIS CHAPTER,
AND  ANY  OTHER  CRIME,  THE SENTENCES FOR SUCH CRIMES SHALL RUN CONSEC-
UTIVELY.
  S 10. This act shall  take  effect  on  the  first  of  November  next
succeeding the date on which it shall have become a law.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.