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

                                  2273

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 15, 2009
                               ___________

Introduced  by  M.  of A. REILICH, KOLB, ERRIGO, FINCH, ALFANO -- Multi-
  Sponsored by -- M. of A.  BACALLES, BARRA, CROUCH, McDONOUGH, OAKS  --
  read once and referred to the Committee on Codes

AN  ACT  to  amend the penal law, in relation to sexual performance by a
  child under the age of eighteen years

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

  Section  1.  Article  263 of the penal law, as added by chapter 910 of
the laws of 1977, subdivisions 1  and  2  of  section  263.00,  sections
263.05,  263.10,  263.15,  263.25 and subdivision 1 of section 263.20 as
amended by chapter 1 of the laws of 2000, sections 263.11 and 263.16  as
added by chapter 11 of the laws of 1996, subdivisions 3 and 7 of section
263.00  as amended by chapter 264 of the laws of 2003 and section 263.30
as added by chapter 431 of the laws of  2008,  is  amended  to  read  as
follows:
                               ARTICLE 263
                      SEXUAL PERFORMANCE BY A CHILD
Section 263.00  Definitions.
        263.05  Use of a child in a sexual performance.
        263.10  Promoting an obscene sexual performance by a child.
        263.11  Possessing an obscene sexual performance by a child.
        263.15  Promoting a sexual performance by a child.
        263.16  Possessing a sexual performance by a child.
        263.20  Sexual performance by a child; affirmative defenses.
        263.25  Proof of age of child.
        263.30  Facilitating  a  sexual  performance  by  a child with a
                  controlled substance or alcohol.
S 263.00 Definitions.
  As used in this article the following definitions shall apply:
  1. "Sexual performance" means any performance or part  thereof  which,
for  purposes of section 263.16 of this article, includes sexual conduct

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04352-01-9
              

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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.
  3. "Sexual conduct" means actual or simulated sexual intercourse, oral
sexual  conduct,  anal  sexual conduct, sexual bestiality, masturbation,
sado-masochistic abuse, or lewd exhibition of the genitals.
  4. "Performance" means any play, motion picture, photograph or  dance.
Performance  also means any other visual representation exhibited before
an audience.
  5.  "Promote"  means  to  procure,  manufacture,  issue,  sell,  give,
provide,  lend, mail, deliver, transfer, transmute, publish, distribute,
circulate, disseminate, present, exhibit or advertise, or  to  offer  or
agree to do the same.
  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.
  7.  "Oral  sexual  conduct" and "anal sexual conduct" mean the conduct
defined by subdivision two of section 130.00 of this chapter.
  8. "Sado-masochistic abuse" means the conduct defined  in  subdivision
five of section 235.20 of this chapter.
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 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 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 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.

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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
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 263.20 Sexual performance by a child; affirmative defenses.
  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.
  2.  In any prosecution for any offense pursuant to this article, it is
an affirmative defense that  the  person  so  charged  was  a  librarian
engaged  in the normal course of his OR HER employment, a motion picture
projectionist, stage employee or spotlight operator,  cashier,  doorman,
usher,  candy  stand attendant, porter or in any other non-managerial or
non-supervisory capacity in a motion picture theatre; provided he OR SHE
has no financial interest, other  than  his  OR  HER  employment,  which
employment  does not encompass compensation based upon any proportion of
the gross receipts, in the promotion of a sexual performance  for  sale,
rental  or  exhibition or in the promotion, presentation or direction of
any sexual performance, or is in any way responsible for acquiring  such
material for sale, rental or exhibition.
S 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,] THE AGE OF EIGHTEEN YEARS the
court or jury may make such  determination  by  any  of  the  following:
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  appear-
ance  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.
S  263.30 Facilitating a sexual performance by a child with a controlled
           substance or alcohol.
  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.
  2.  For the purposes of this section, "controlled substance" means any
substance or preparation, compound, mixture,  salt,  or  isomer  of  any

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substance  defined  in  section  thirty-three  hundred six of the public
health law.
  Facilitating  a  sexual  performance  by  a  child  with  a controlled
substance or alcohol is a class B felony.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.