S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7056
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 29, 2017
                                ___________
 
 Introduced  by  M.  of A. TITONE -- Multi-Sponsored by -- M. of A. COOK,
   McDONOUGH, PEOPLES-STOKES, SIMANOWITZ -- 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:
 
   Section  1. Subdivision 3 of section 235.21 of the penal law, as added
 by chapter 600 of the laws of 1996, is amended to read as follows:
   3. Knowing the character and content of the  communication  which,  in
 whole or in part, depicts OR DESCRIBES, EITHER IN WORDS OR IMAGES actual
 or simulated nudity, sexual conduct or sado-masochistic abuse, and which
 is harmful to minors, he OR SHE intentionally uses any TELEPHONIC COMMU-
 NICATION,  ELECTRONIC  COMMUNICATION  OR  computer  communication system
 allowing the input, output, examination or transfer, of computer data or
 computer programs from one computer to another, to initiate or engage in
 such communication with a person who is a minor OR A PERSON WHO, REGARD-
 LESS OF HIS OR HER AGE, IS A POLICE OFFICER  AND  THE  ACTOR  REASONABLY
 BELIEVES SUCH OFFICER TO BE A MINOR.
   §  2.  Section 235.22 of the penal law, as added by chapter 600 of the
 laws of 1996, subdivision 1 as amended by chapter 8 of the laws of 2007,
 subdivision 2 as amended by chapter 264 of the laws of 2003, is  amended
 to read as follows:
 § 235.22 Disseminating indecent material to minors in the first degree.
   A person is guilty of disseminating indecent material to minors in the
 first degree when:
   1.  knowing  the  character and content of the communication which, in
 whole or in part, depicts or describes, either in words or images actual
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09208-01-7

 A. 7056                             2
 
 or simulated nudity, sexual conduct or sado-masochistic abuse, and which
 is harmful to minors, he OR SHE intentionally uses any TELEPHONIC COMMU-
 NICATION, ELECTRONIC  COMMUNICATION  OR  computer  communication  system
 allowing the input, output, examination or transfer, of computer data or
 computer programs from one computer to another, to initiate or engage in
 such communication with a person who is a minor OR A PERSON WHO, REGARD-
 LESS  OF  HIS  OR  HER AGE, IS A POLICE OFFICER AND THE ACTOR REASONABLY
 BELIEVES SUCH OFFICER TO BE A MINOR; and
   2. by means of such communication he OR  SHE  importunes,  invites  or
 induces  a  minor  OR  A  PERSON WHO, REGARDLESS OF HIS OR HER AGE, IS A
 POLICE OFFICER AND THE ACTOR REASONABLY BELIEVES SUCH OFFICER  TO  BE  A
 MINOR to engage in sexual intercourse, oral sexual conduct or anal sexu-
 al  conduct, or sexual contact with him OR HER, or to engage in a sexual
 performance, obscene sexual performance, or sexual conduct  for  his  OR
 HER benefit.
   Disseminating  indecent  material  to  minors in the first degree is a
 class D felony.
   § 3. Subdivisions 1, 2, 4 and 6 of section 263.00 of  the  penal  law,
 subdivisions  1  and  2  as amended by chapter 1 of the laws of 2000 and
 subdivisions 4 and 6 as added by chapter 910 of the laws  of  1977,  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,  OR  WHAT
 REASONABLY  APPEARS TO BE SEXUAL CONDUCT, by a child less than seventeen
 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, OR WHAT REASONABLY APPEARS TO
 BE SEXUAL CONDUCT, by a child less than seventeen years of age,  in  any
 material  which is obscene, as such term is defined in section 235.00 of
 this chapter.
   4. "Performance" means any  play,  motion  picture,  photograph  [or],
 dance,  FILM,  VIDEO, DIGITAL IMAGE OR DATA STORED ON A COMPUTER DISK OR
 BY ELECTRONIC MEANS WHERE SUCH DATA IS  CAPABLE  OF  CONVERSION  INTO  A
 VISUAL  IMAGE.  Performance  also  means any other visual representation
 exhibited before an audience.
   6. "Simulated" means the explicit depiction of any of the conduct  set
 forth  in subdivision three of this section which creates the appearance
 of such conduct  [and  which  exhibits  any  uncovered  portion  of  the
 breasts, genitals or buttocks].
   §  4.  Section 263.10 of the penal law, as amended by chapter 1 of the
 laws of 2000, is amended to read as follows:
 § 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 OR SHE produces, directs or  promotes  any  obscene  performance
 which  includes  sexual conduct, OR WHAT REASONABLY APPEARS TO BE 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.
   § 5. The penal law is amended by adding a new section 263.10-a to read
 as follows:

 A. 7056                             3
 
 §  263.10-A  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, DIRECTS OR PROMOTES:
   1. TEN OR MORE OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL  CONDUCT,  OR
 WHAT  REASONABLY  APPEARS  TO  BE  SEXUAL  CONDUCT, BY A CHILD LESS THAN
 SEVENTEEN YEARS OF AGE, OR
   2. ANY OBSCENE PERFORMANCE WHICH  INCLUDES  SEXUAL  CONDUCT,  OR  WHAT
 REASONABLY  APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN
 YEARS OF AGE AND HE OR SHE PROMOTES SUCH PERFORMANCE  TO  A  CHILD  LESS
 THAN  SEVENTEEN  YEARS  OF AGE, OR TO A PERSON WHO, REGARDLESS OF HIS OR
 HER AGE, IS A POLICE OFFICER AND  THE  ACTOR  REASONABLY  BELIEVES  SUCH
 OFFICER TO BE A CHILD LESS THAN SEVENTEEN YEARS OF AGE.
   PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE
 IS A CLASS C FELONY.
   § 6. Section 263.11 of the penal law, as amended by chapter 456 of the
 laws of 2012, is amended to read as follows:
 § 263.11  Possessing  an  obscene  sexual  performance by a child IN THE
             THIRD DEGREE.
   A person is guilty of possessing an obscene sexual  performance  by  a
 child IN THE THIRD DEGREE when, knowing the character and content there-
 of,  he  OR  SHE  knowingly  has in his OR HER possession or control, or
 knowingly accesses with intent to view, any  obscene  performance  which
 includes  sexual  conduct,  OR  WHAT  REASONABLY  APPEARS  TO  BE SEXUAL
 CONDUCT, by a child less than [sixteen] SEVENTEEN years of age.
   Possessing an obscene sexual performance  by  a  child  IN  THE  THIRD
 DEGREE is a class E felony.
   §  7.  The penal law is amended by adding a new section 263.12 to read
 as follows:
 § 263.12 POSSESSING AN OBSCENE SEXUAL PERFORMANCE  BY  A  CHILD  IN  THE
              SECOND DEGREE.
   A  PERSON  IS  GUILTY OF POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A
 CHILD IN THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THER-
 EOF, HE OR SHE KNOWINGLY HAS IN HIS OR HER POSSESSION OR CONTROL TEN  OR
 MORE  OBSCENE PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR WHAT REASON-
 ABLY APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN  YEARS
 OF AGE.
   POSSESSING  AN  OBSCENE  SEXUAL  PERFORMANCE  BY A CHILD IN THE SECOND
 DEGREE IS A CLASS D FELONY.
   § 8. The penal law is amended by adding a new section 263.13  to  read
 as follows:
 §  263.13  POSSESSING  AN  OBSCENE  SEXUAL PERFORMANCE BY A CHILD IN THE
              FIRST DEGREE.
   A PERSON IS GUILTY OF POSSESSING AN OBSCENE SEXUAL  PERFORMANCE  BY  A
 CHILD IN THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THERE-
 OF,  HE  OR  SHE  KNOWINGLY  HAS IN HIS OR HER POSSESSION OR CONTROL ONE
 HUNDRED OR MORE OBSCENE PERFORMANCES WHICH INCLUDE  SEXUAL  CONDUCT,  OR
 WHAT  REASONABLY  APPEARS  TO  BE  SEXUAL  CONDUCT, BY A CHILD LESS THAN
 SEVENTEEN YEARS OF AGE.
   POSSESSING AN OBSCENE SEXUAL PERFORMANCE  BY  A  CHILD  IN  THE  FIRST
 DEGREE IS A CLASS C FELONY.
   §  9.  Section 263.15 of the penal law, as amended by chapter 1 of the
 laws of 2000, is amended to read as follows:
 § 263.15 Promoting a sexual performance by a child IN THE SECOND DEGREE.

 A. 7056                             4
 
   A person is guilty of promoting a sexual performance by a child IN THE
 SECOND DEGREE when, knowing the character and content thereof, he OR SHE
 produces, directs or promotes  any  performance  which  includes  sexual
 conduct,  OR  WHAT  REASONABLY  APPEARS TO BE SEXUAL CONDUCT, by a child
 less than seventeen years of age.
   Promoting  a  sexual  performance by a child IN THE SECOND DEGREE is a
 class D felony.
   § 10. The penal law is amended by adding a  new  section  263.15-a  to
 read as follows:
 §  263.15-A  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 OR  SHE
 PRODUCES, DIRECTS OR PROMOTES:
   1.  TEN  OR  MORE  PERFORMANCES  WHICH INCLUDE SEXUAL CONDUCT, OR WHAT
 REASONABLY APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN  SEVENTEEN
 YEARS OF AGE, OR
   2.  ANY  PERFORMANCE WHICH INCLUDES SEXUAL CONDUCT, OR WHAT REASONABLY
 APPEARS TO BE SEXUAL CONDUCT, BY A CHILD LESS THAN  SEVENTEEN  YEARS  OF
 AGE  AND HE OR SHE PROMOTES SUCH PERFORMANCE TO A CHILD LESS THAN SEVEN-
 TEEN YEARS OF AGE, OR TO A PERSON WHO, REGARDLESS OF HIS OR HER AGE,  IS
 A  POLICE OFFICER AND THE ACTOR REASONABLY BELIEVES SUCH OFFICER TO BE A
 CHILD LESS THAN SEVENTEEN YEARS OF AGE.
   PROMOTING A SEXUAL PERFORMANCE BY A CHILD IN THE  FIRST  DEGREE  IS  A
 CLASS C FELONY.
   §  11.  Section  263.16 of the penal law, as amended by chapter 456 of
 the laws of 2012, is amended to read as follows:
 § 263.16 Possessing a sexual performance by a child IN THE THIRD DEGREE.
   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
 his  OR  HER possession or control, or knowingly accesses with intent to
 view, any performance which includes sexual conduct, OR WHAT  REASONABLY
 APPEARS  TO  BE SEXUAL CONDUCT, by a child less than [sixteen] SEVENTEEN
 years of age.
   Possessing a sexual performance by a child IN THE THIRD  DEGREE  is  a
 class E felony.
   §  12. The penal law is amended by adding a new section 263.17 to read
 as follows:
 § 263.17 POSSESSING A SEXUAL  PERFORMANCE  BY  A  CHILD  IN  THE  SECOND
            DEGREE.
   A  PERSON  IS  GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN
 THE SECOND DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE OR
 SHE KNOWINGLY HAS IN HIS OR  HER  POSSESSION  OR  CONTROL  TEN  OR  MORE
 PERFORMANCES WHICH INCLUDE SEXUAL CONDUCT, OR WHAT REASONABLY APPEARS TO
 BE SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN YEARS OF AGE.
   POSSESSING  A  SEXUAL PERFORMANCE BY A CHILD IN THE SECOND DEGREE IS A
 CLASS D FELONY.
   § 13. The penal law is amended by adding a new section 263.18 to  read
 as follows:
 § 263.18 POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST DEGREE.
   A  PERSON  IS  GUILTY OF POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN
 THE FIRST DEGREE WHEN, KNOWING THE CHARACTER AND CONTENT THEREOF, HE  OR
 SHE  KNOWINGLY  HAS  IN  HIS OR HER POSSESSION OR CONTROL ONE HUNDRED OR
 MORE PERFORMANCES WHICH  INCLUDE  SEXUAL  CONDUCT,  OR  WHAT  REASONABLY
 APPEARS  TO  BE  SEXUAL CONDUCT, BY A CHILD LESS THAN SEVENTEEN YEARS OF
 AGE.

 A. 7056                             5
 
   POSSESSING A SEXUAL PERFORMANCE BY A CHILD IN THE FIRST  DEGREE  IS  A
 CLASS C FELONY.
   §  14. 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 years of age or over or, for purposes  of  section  263.05,
 263.10 or 263.15 of this article,] seventeen years of age or over.
   §  15. Section 263.25 of the penal law, as amended by chapter 1 of the
 laws of 2000, is amended to read as follows:
 § 263.25 Proof of age of child.
   Whenever it becomes necessary for the  purposes  of  this  article  to
 determine  whether  a child who participated in a sexual performance was
 [under an age specified in this article] LESS THAN  SEVENTEEN  YEARS  OF
 AGE, the court or jury may make such determination by any of the follow-
 ing:  personal  inspection  of the child; inspection of [a photograph or
 motion picture which constituted] the sexual performance; oral testimony
 by a witness to the sexual performance as to the age of the child  based
 upon  the  child's  appearance;  expert medical testimony based upon the
 appearance of the child in the sexual performance; and any other  method
 authorized  by  any  applicable  provision  of  law  or  by the rules of
 evidence at common law.
   § 16. Subdivision 1 of section  50-b  of  the  civil  rights  law,  as
 amended  by  chapter  320  of  the  laws  of 2006, is amended to read as
 follows:
   1. The identity of any victim of a sex offense, as defined in  article
 one hundred thirty, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED SIXTY-THREE, or
 section  255.25,  255.26  or  255.27  of the penal law, or of an offense
 involving the alleged transmission of the human immunodeficiency  virus,
 shall be confidential. No report, paper, picture, photograph, court file
 or  other  documents, in the custody or possession of any public officer
 or employee, 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.
   § 17. This act shall  take  effect  on  the  first  of  November  next
 succeeding the date on which it shall have become a law.