S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7519--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 25, 2023
                                ___________
 
 Introduced  by  M.  of  A. SILLITTI, McDONALD, BRONSON, CONRAD, DICKENS,
   ARDILA -- read once and referred to the Committee on Codes  --  recom-
   mitted  to  the Committee on Codes in accordance with Assembly Rule 3,
   sec. 2 -- committee discharged, bill  amended,  ordered  reprinted  as
   amended and recommitted to said committee

 AN  ACT  to  amend  the  penal  law,  the criminal procedure law and the
   correction law, in relation to establishing offenses involving sexual-
   ly explicit digital alterations
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Short  title. This act shall be known and may be cited as
 the "digital alterations protections act".
   § 2. The penal law is amended by adding a new article 246 to  read  as
 follows:
 
                                ARTICLE 246
         OFFENSES INVOLVING SEXUALLY EXPLICIT DIGITAL ALTERATIONS
 
 SECTION 246.00 DEFINITIONS.
         246.05 UNLAWFUL  DISSEMINATION  OF A SEXUALLY EXPLICIT DEPICTION
                  OF AN INDIVIDUAL.
         246.10 UNLAWFUL PUBLICATION OF A SEXUALLY EXPLICIT DEPICTION  OF
                  AN INDIVIDUAL.
         246.15 UNLAWFUL  ACCESS  OF  A  SEXUALLY EXPLICIT DEPICTION OF A
                  CHILD.
         246.20 UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT DEPICTION OF
                  A CHILD IN THE SECOND DEGREE.
         246.25 UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT DEPICTION OF
                  A CHILD IN THE FIRST DEGREE.
         246.30 AFFIRMATIVE DEFENSE.
         246.35 CONSENT.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11051-03-4
              

 A. 7519--A                          2
 
         246.40 APPLICATION OF ARTICLE.
 § 246.00 DEFINITIONS.
   AS USED IN THIS ARTICLE, THE FOLLOWING DEFINITIONS SHALL APPLY:
   1.  "DISSEMINATE"  AND  "PUBLISH" SHALL HAVE THE SAME MEANINGS AS SUCH
 TERMS ARE DEFINED IN SECTION 250.40 OF THIS TITLE.
   2. "CREATE" MEANS TO DESIGN, DEVELOP, DEVISE, GENERATE,  ISSUE,  MAKE,
 MANUFACTURE, PRODUCE, OR TRANSMUTE.
   3.  "SEXUALLY EXPLICIT DEPICTION" MEANS ANY WORK CREATED THROUGH SEXU-
 ALLY EXPLICIT DIGITIZATION, INCLUDING STILL AND AUDIO VISUAL.
   4. "SEXUALLY EXPLICIT  DIGITIZATION"  MEANS  TO  REALISTICALLY  DEPICT
 EITHER:  (A) THE NUDE BODY PARTS OF ANOTHER HUMAN BEING AS THE NUDE BODY
 PARTS OF THE DEPICTED INDIVIDUAL OR COMPUTER-GENERATED NUDE  BODY  PARTS
 AS  THE  NUDE BODY PARTS OF THE DEPICTED INDIVIDUAL; OR (B) THE DEPICTED
 INDIVIDUAL ENGAGING IN SEXUAL CONDUCT, AS DEFINED BY  SUBDIVISION  THREE
 OF  SECTION 263.00 OF THIS PART, OR SEXUAL CONTACT, AS DEFINED BY SUBDI-
 VISION THREE OF SECTION 130.00 OF THIS PART, IN WHICH THE DEPICTED INDI-
 VIDUAL DID NOT ENGAGE.
   5. "AUDIO VISUAL" MEANS ANY FILM, MOTION PICTURE, AUDIO AND/OR  VISUAL
 RECORDING, DIGITAL IMAGE, COMPUTER IMAGE OR COMPUTER-GENERATED IMAGE.
   6.  "SEXUALLY  EXPLICIT  MATERIAL"  MEANS  ANY  PORTION  OF A SEXUALLY
 EXPLICIT DEPICTION THAT SHOWS THE  DEPICTED  INDIVIDUAL  PERFORMING,  OR
 APPEARING  TO PERFORM, IN THE NUDE, MEANING WITH AN UNCLOTHED OR EXPOSED
 INTIMATE PART, AS DEFINED IN SECTION 245.15 OF THIS TITLE, OR PERFORMING
 IN, APPEARING TO PERFORM IN, OR BEING SUBJECTED TO, SEXUAL  CONDUCT,  AS
 DEFINED  BY  SUBDIVISION THREE OF SECTION 263.00 OF THIS PART, OR SEXUAL
 CONTACT, AS DEFINED BY SUBDIVISION THREE OF SECTION 130.00 OF THIS PART.
   7. "DEPICTED INDIVIDUAL" MEANS AN IDENTIFIABLE PERSON WHO APPEARS,  AS
 A  RESULT  OF SEXUALLY EXPLICIT DIGITIZATION, TO BE GIVING A PERFORMANCE
 THAT THE IDENTIFIABLE PERSON DID NOT ACTUALLY PERFORM OR THAT WAS  ACTU-
 ALLY  PERFORMED  BY THE IDENTIFIABLE PERSON BUT WAS SUBSEQUENTLY ALTERED
 TO BE IN VIOLATION OF THIS ARTICLE.
   8. "IDENTIFIABLE PERSON" MEANS AN INDIVIDUAL WHOSE IMAGE IS  OR  WOULD
 BE  CLEARLY IDENTIFIABLE AS A SPECIFIC PERSON BY ANY INDIVIDUAL.  "IDEN-
 TIFIABLE PERSON" SHALL NOT BE CONSTRUED TO REQUIRE PROOF OF  THE  ACTUAL
 IDENTITY OF THE INDIVIDUAL.
   9. "INDIVIDUAL" MEANS A NATURAL, HUMAN BEING.
 § 246.05 UNLAWFUL  DISSEMINATION  OF A SEXUALLY EXPLICIT DEPICTION OF AN
            INDIVIDUAL.
   A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OF  A  SEXUALLY  EXPLICIT
 DEPICTION  OF  AN  INDIVIDUAL  WHEN THE PERSON, WITH THE INTENT TO CAUSE
 HARM TO THE REPUTATION OR EMOTIONAL, FINANCIAL, OR PHYSICAL  WELFARE  OF
 ANOTHER  PERSON,  DISSEMINATES  SEXUALLY EXPLICIT MATERIAL THAT INCLUDES
 THE DEPICTED INDIVIDUAL, AND HE OR SHE KNOWS OR REASONABLY  SHOULD  HAVE
 KNOWN  THE  DEPICTED  INDIVIDUAL  DID NOT CONSENT TO ITS CREATION OR ITS
 DISSEMINATION.
   UNLAWFUL DISSEMINATION OF A SEXUALLY EXPLICIT DEPICTION OF AN INDIVID-
 UAL IS A CLASS B MISDEMEANOR.
 § 246.10 UNLAWFUL PUBLICATION OF A SEXUALLY  EXPLICIT  DEPICTION  OF  AN
            INDIVIDUAL.
   A  PERSON  IS  GUILTY  OF  UNLAWFUL PUBLICATION OF A SEXUALLY EXPLICIT
 DEPICTION OF AN INDIVIDUAL WHEN THE PERSON, WITH THE INTENT TO  SEXUALLY
 GRATIFY  THAT  PERSON OR ANOTHER PERSON OR WITH THE INTENT TO CAUSE HARM
 TO THE REPUTATION OR EMOTIONAL, FINANCIAL, OR PHYSICAL WELFARE OF ANOTH-
 ER PERSON,  PUBLISHES  SEXUALLY  EXPLICIT  MATERIAL  THAT  INCLUDES  THE
 DEPICTED INDIVIDUAL, AND HE OR SHE KNOWS OR REASONABLY SHOULD HAVE KNOWN
 A. 7519--A                          3
 
 THE  DEPICTED INDIVIDUAL DID NOT CONSENT TO ITS CREATION OR ITS PUBLICA-
 TION.
   UNLAWFUL PUBLICATION OF A SEXUALLY EXPLICIT DEPICTION OF AN INDIVIDUAL
 IS A CLASS A MISDEMEANOR.
 § 246.15 UNLAWFUL ACCESS OF A SEXUALLY EXPLICIT DEPICTION OF A CHILD.
   A PERSON IS GUILTY OF UNLAWFUL ACCESS OF A SEXUALLY EXPLICIT DEPICTION
 OF  A  CHILD WHEN THE PERSON, KNOWING THE CHARACTER AND CONTENT THEREOF,
 KNOWINGLY ACCESSES WITH INTENT TO SEXUALLY GRATIFY A PERSON AND TO  VIEW
 ANY  SEXUALLY EXPLICIT DEPICTION THAT INCLUDES SEXUAL CONDUCT BY A CHILD
 LESS THAN SEVENTEEN YEARS OF AGE.
   UNLAWFUL ACCESS OF A SEXUALLY EXPLICIT DEPICTION OF A CHILD IS A CLASS
 A MISDEMEANOR.
 § 246.20 UNLAWFUL DISTRIBUTION OF A SEXUALLY  EXPLICIT  DEPICTION  OF  A
            CHILD IN THE SECOND DEGREE.
   A  PERSON  IS  GUILTY  OF UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT
 DEPICTION OF A CHILD IN THE SECOND DEGREE WHEN THE PERSON,  KNOWING  THE
 CHARACTER  AND  CONTENT  THEREOF,  DISSEMINATES  OR  PUBLISHES  SEXUALLY
 EXPLICIT MATERIAL THAT INCLUDES A DEPICTED INDIVIDUAL,  AND  HE  OR  SHE
 KNOWS  OR  REASONABLY  SHOULD HAVE KNOWN THAT THE DEPICTED INDIVIDUAL IS
 LESS THAN SEVENTEEN YEARS OF AGE.
   UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT DEPICTION OF A  CHILD  IN
 THE SECOND DEGREE IS A CLASS E FELONY.
 § 246.25 UNLAWFUL  DISTRIBUTION  OF  A  SEXUALLY EXPLICIT DEPICTION OF A
            CHILD IN THE FIRST DEGREE.
   A PERSON IS GUILTY OF UNLAWFUL DISTRIBUTION  OF  A  SEXUALLY  EXPLICIT
 DEPICTION  OF  A  CHILD IN THE FIRST DEGREE WHEN THE PERSON, KNOWING THE
 CHARACTER AND  CONTENT  THEREOF,  CREATES  AND  EITHER  DISSEMINATES  OR
 PUBLISHES  SEXUALLY  EXPLICIT MATERIAL THAT INCLUDES A DEPICTED INDIVID-
 UAL, AND THE DEPICTED INDIVIDUAL IS LESS THAN SEVENTEEN YEARS OF AGE.
   UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT DEPICTION OF A  CHILD  IN
 THE FIRST DEGREE IS A CLASS D FELONY.
 § 246.30 AFFIRMATIVE DEFENSE.
   1.  IT  SHALL  BE  AN AFFIRMATIVE DEFENSE TO UNLAWFUL PUBLICATION OF A
 SEXUALLY EXPLICIT DEPICTION OF AN INDIVIDUAL AND UNLAWFUL  DISSEMINATION
 OF  A SEXUALLY EXPLICIT DEPICTION OF AN INDIVIDUAL THAT A DEPICTED INDI-
 VIDUAL WHO IS EIGHTEEN YEARS OF AGE OR OLDER CONSENTED TO  THE  CREATION
 AND  EITHER  THE  DISSEMINATION  OR PUBLICATION OF THE SEXUALLY EXPLICIT
 DEPICTION.
   (A) A DEPICTED INDIVIDUAL WHO IS EIGHTEEN YEARS OF AGE  OR  OLDER  MAY
 CONSENT  TO  THE  CREATION,  DISSEMINATION,  OR  PUBLICATION OF SEXUALLY
 EXPLICIT MATERIAL ONLY BY KNOWINGLY AND VOLUNTARILY SIGNING AN AGREEMENT
 WRITTEN IN PLAIN LANGUAGE THAT INCLUDES A  GENERAL  DESCRIPTION  OF  THE
 SEXUALLY  EXPLICIT MATERIAL, THE SEXUALLY EXPLICIT DEPICTION IN WHICH IT
 WILL BE INCORPORATED,  AND  THE  NATURE  OF  THE  DEPICTED  INDIVIDUAL'S
 CONSENT.
   (B)  A  DEPICTED  INDIVIDUAL MAY RESCIND CONSENT BY DELIVERING WRITTEN
 NOTICE WITHIN THREE BUSINESS DAYS FROM THE DATE CONSENT WAS GIVEN TO THE
 PERSON IN WHOSE FAVOR CONSENT WAS MADE, OR LONGER  IF  AN  AGREEMENT  SO
 STIPULATES.
   2. IT SHALL NOT BE A DEFENSE UNDER THIS ARTICLE THAT:
   (A)  THERE IS A DISCLAIMER INCLUDED IN THE SEXUALLY EXPLICIT DEPICTION
 THAT COMMUNICATES THAT THE INCLUSION  OF  THE  DEPICTED  INDIVIDUAL  WAS
 UNAUTHORIZED,  THAT  THE  DEPICTED INDIVIDUAL DID NOT PARTICIPATE IN THE
 CREATION OR DEVELOPMENT OF THE SEXUALLY EXPLICIT DEPICTION, OR THAT  THE
 SEXUALLY EXPLICIT DEPICTION HAS BEEN ALTERED THROUGH DIGITIZATION; OR
 A. 7519--A                          4

   (B)  THE  FEATURES OF THE DEPICTED INDIVIDUAL HAVE BEEN OR ARE ALTERED
 PRIOR TO OR AFTER THE CREATION OR DISTRIBUTION OF THE SEXUALLY  EXPLICIT
 DEPICTION, PROVIDED THAT THE DEPICTED INDIVIDUAL REMAINS AN IDENTIFIABLE
 PERSON.
 § 246.35 CONSENT.
   A PERSON UNDER EIGHTEEN YEARS OF AGE SHALL BE INCAPABLE OF CONSENT FOR
 THE PURPOSES OF THIS ARTICLE. NO ADULT CAN CONSENT ON BEHALF OF A PERSON
 UNDER EIGHTEEN YEARS OF AGE.
 § 246.40 APPLICATION OF ARTICLE.
   1. THIS ARTICLE SHALL NOT APPLY TO THE FOLLOWING:
   (A) THE REPORTING OF UNLAWFUL CONDUCT;
   (B) THE CREATION, DISSEMINATION, OR PUBLICATION OF A SEXUALLY EXPLICIT
 RENDITION  OF  A DEPICTED INDIVIDUAL MADE DURING LAWFUL AND COMMON PRAC-
 TICES OF LAW ENFORCEMENT, LEGAL PROCEEDINGS, OR MEDICAL TREATMENT;
   (C) THE CREATION, DISSEMINATION, OR PUBLICATION OF A SEXUALLY EXPLICIT
 DEPICTION MADE FOR A LEGITIMATE PUBLIC PURPOSE, INCLUDING FOR  POLITICAL
 OR  NEWSWORTHY  VALUE OR SIMILAR WORK, COMMENTARY, CRITICISM, OR DISCLO-
 SURE THAT IS OTHERWISE PROTECTED BY THE CONSTITUTION OF THIS STATE OR OF
 THE UNITED STATES, PROVIDED THAT SEXUALLY EXPLICIT MATERIAL SHALL NOT BE
 CONSIDERED OF NEWSWORTHY VALUE SOLELY BECAUSE THE DEPICTED INDIVIDUAL IS
 A PUBLIC FIGURE.
   (D) THE CREATION, DISSEMINATION, OR PUBLICATION OF A SEXUALLY EXPLICIT
 DEPICTION THAT DOES NOT INCLUDE SEXUALLY EXPLICIT MATERIAL.
   2. (A) NOTHING IN THIS ARTICLE SHALL BE  CONSTRUED  TO  LIMIT,  OR  TO
 ENLARGE,  THE PROTECTIONS THAT 47 U.S.C. § 230 CONFERS ON AN INTERACTIVE
 COMPUTER SERVICE FOR CONTENT PROVIDED  BY  ANOTHER  INFORMATION  CONTENT
 PROVIDER, AS SUCH TERMS ARE DEFINED IN 47 U.S.C. § 230.
   (B)  NOTHING  IN  THIS  ARTICLE  SHALL  BE DEEMED TO INTERFERE WITH OR
 PROHIBIT ANY RIGHTS ESTABLISHED BY  SECTION  FIFTY-TWO-C  OF  THE  CIVIL
 RIGHTS  LAW,  AS  ADDED BY CHAPTER THREE HUNDRED FOUR OF THE LAWS OF TWO
 THOUSAND TWENTY.
   § 3. Subdivision 2 of section 30.10 of the criminal procedure  law  is
 amended by adding a new paragraph (a-3) to read as follows:
   (A-3)  A  PROSECUTION FOR UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT
 DEPICTION OF A CHILD MUST BE COMMENCED WITHIN FIVE YEARS AFTER THE PERI-
 OD SET FORTH IN PARAGRAPH (F) OF SUBDIVISION THREE OF THIS SECTION;
   § 4.  Paragraph (f) of subdivision 3 of section 30.10 of the  criminal
 procedure  law, as amended by chapter 11 of the laws of 2019, is amended
 to read as follows:
   (f) For purposes of  a  prosecution  involving  a  sexual  offense  as
 defined  in  article  one  hundred thirty of the penal law, other than a
 sexual offense delineated in paragraph (a) of subdivision  two  of  this
 section,  committed  against  a  child  less than eighteen years of age,
 incest in the first, second or  third  degree  as  defined  in  sections
 255.27,  255.26  and  255.25  of the penal law committed against a child
 less than eighteen years of age,  [or]  use  of  a  child  in  a  sexual
 performance  as  defined  in  section  263.05 of the penal law, UNLAWFUL
 PUBLICATION OF A SEXUALLY EXPLICIT DEPICTION OF AN INDIVIDUAL AS DEFINED
 IN SECTION 246.10 OF THE PENAL LAW, UNLAWFUL DISSEMINATION OF A SEXUALLY
 EXPLICIT DEPICTION OF AN INDIVIDUAL AS DEFINED IN SECTION 246.05 OF  THE
 PENAL  LAW, OR UNLAWFUL DISTRIBUTION OF A SEXUALLY EXPLICIT DEPICTION OF
 A CHILD IN THE FIRST DEGREE OR SECOND  DEGREE  AS  DEFINED  IN  SECTIONS
 246.25  AND  246.20 OF THE PENAL LAW, the period of limitation shall not
 begin to run until the child has reached the age of twenty-three or  the
 offense  is  reported  to  a law enforcement agency or statewide central
 register of child abuse and maltreatment, whichever occurs earlier.
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   § 5. Paragraph (e) of subdivision 4 of section 510.10 of the  criminal
 procedure  law,  as amended by section 2 of part UU of chapter 56 of the
 laws of 2020, is amended to read as follows:
   (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
 the  penal  law, or a felony sex offense defined in section 70.80 of the
 penal law, or a crime involving incest as  defined  in  section  255.25,
 255.26  or  255.27  of such law, or a misdemeanor defined in article one
 hundred thirty of such law, OR A FELONY DEFINED IN ARTICLE  TWO  HUNDRED
 FORTY-SIX OF SUCH LAW;
   §  6.  Subparagraph  (v)  of paragraph (b) of subdivision 1 of section
 530.20 of the criminal procedure law, as amended by section 3 of part UU
 of chapter 56 of the laws of 2020, is amended to read as follows:
   (v) a sex trafficking offense defined in section 230.34 or 230.34-a of
 the penal law, or a felony sex offense defined in section 70.80  of  the
 penal  law  or  a  crime  involving incest as defined in section 255.25,
 255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one
 hundred  thirty  of such law, OR A FELONY DEFINED IN ARTICLE TWO HUNDRED
 FORTY-SIX OF SUCH LAW;
   § 7. Paragraph (m) of subdivision 4 of section 530.40 of the  criminal
 procedure  law,  as  added  by section 4 of part UU of chapter 56 of the
 laws of 2020, is amended to read as follows:
   (m) assault in the third degree as defined in section  120.00  of  the
 penal  law  or arson in the third degree as defined in section 150.10 of
 the penal law, when such crime is charged as a hate crime as defined  in
 section  485.05  of  the  penal  law, OR A FELONY DEFINED IN ARTICLE TWO
 HUNDRED FORTY-SIX OF THE PENAL LAW;
   § 8. Subparagraph (i) of paragraph (a) of  subdivision  2  of  section
 168-a  of  the  correction law, as amended by chapter 189 of the laws of
 2018, is amended to read as follows:
   (i) a conviction of or a conviction for an attempt to  commit  any  of
 the  provisions  of  sections  120.70,  130.20,  130.25, 130.30, 130.40,
 130.45, 130.60, 230.34, 230.34-a, 250.50, 255.25, 255.26 [and],  255.27,
 246.20  AND  246.25 or article two hundred sixty-three of the penal law,
 or section 135.05, 135.10, 135.20 or 135.25  of  such  law  relating  to
 kidnapping  offenses,  provided the victim of such kidnapping or related
 offense is less than seventeen years old and the  offender  is  not  the
 parent  of the victim, or section 230.04, where the person patronized is
 in fact less than  seventeen  years  of  age,  230.05,  230.06,  230.11,
 230.12,  230.13,  subdivision  two  of  section  230.30, section 230.32,
 230.33, or 230.34 of the penal law, or section 230.25 of the  penal  law
 where  the  person prostituted is in fact less than seventeen years old,
 or
   § 9. Subparagraph (i) of paragraph (a) of  subdivision  2  of  section
 168-a  of  the  correction  law, as amended by chapter 23 of the laws of
 2024, is amended to read as follows:
   (i) a conviction of or a conviction for an attempt to  commit  any  of
 the  provisions  of  sections  120.70,  130.20,  130.25,  130.30, former
 section  130.40,  former  section  130.45,  sections   130.60,   230.34,
 230.34-a,  250.50,  255.25,  255.26  [and], 255.27, 246.20 AND 246.25 or
 article two hundred sixty-three of the penal  law,  or  section  135.05,
 135.10,  135.20  or  135.25 of such law relating to kidnapping offenses,
 provided the victim of such kidnapping or related offense is  less  than
 seventeen years old and the offender is not the parent of the victim, or
 section  230.04, where the person patronized is in fact less than seven-
 teen years of age, 230.05, 230.06, 230.11, 230.12,  230.13,  subdivision
 two  of  section  230.30, section 230.32, 230.33, or 230.34 of the penal
 A. 7519--A                          6
 
 law, or section 230.25 of the penal law where the person prostituted  is
 in fact less than seventeen years old, or
   §  10. Severability. If any provision of this article, or any applica-
 tion of any provision of this article, is held to be invalid, that shall
 not affect the validity or effectiveness of any other provision of  this
 act, or of any other application of any provision of this act, which can
 be  given effect without that provision or application; and to that end,
 the provisions and applications of this act are severable.
   § 11. This act shall take effect immediately; provided, however,  that
 the  amendments to subdivision 2 of section 168-a of the correction law,
 made by section nine of this act shall take effect on the same date  and
 in  the  same  manner  as  section 32 of chapter 23 of the laws of 2024,
 takes effect.