NY State Senate Bill 2011-S622

Senate Bill S622

2011-2012 Legislative Session

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

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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

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to codes
Jan 05, 2011	referred to codes

2011-S622 (ACTIVE) - Details

See Assembly Version of this Bill:: A3091
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§263.00, 263.05, 263.10, 263.11, 263.15, 263.16, 263.20 & 70.25, add §§263.03, 263.08 & 263.13, Pen L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S6257, A2506
2013-2014: S2266, S6379, A2784
2015-2016: S1740, A1997
2017-2018: S716, A2402
2019-2020: A4627
2021-2022: A3392
2023-2024: A3570

2011-S622 (ACTIVE) - Summary

Increases the penalties for sexual performances by a child; increases age from 16 to 18 for application of existing sexual performance crimes; creates crimes of use of a child in a sexual performance in the first degree, promoting an obscene sexual performance by a child in the first degree, and promoting a sexual performance by a child in the first degree; provides for consecutive sentencing upon certain multiple convictions.

2011-S622 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S622

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:
This bill increases the penalties for using a child in a
sexual performance and promoting an obscene sexual performance by a
child and imposes consecutive--as opposed to concurrent--sentences on
a child pornographers.

SUMMARY OF PROVISIONS:
Section 1 amends Section 263.00 of the Penal
Law to amend the definitions of "sexual performance" and "obscene
sexual performance" to include sexual conduct by a child less than
eighteen years of age. Current law defines such terms to include
sexual conduct by a child less than sixteen years of age.

Section 2 adds a new Section 263.03 to the Penal Law that establishes
a new crime of use of a child in a sexual performance in the first
degree, for using children less than 12 years of age to engage in a
sexual performance, which would be a class B felony.

Section 3 amends Section 263.05 of the Penal Law to rename the current
crime of use of a child in a sexual performance to use of a child in
a sexual performance in the second degree, which remains a class C
felony, and increase the age of the children protected by this second
degree offense from less than sixteen to less than eighteen years of
age.

Section 4 adds a new Section 263.08 to the Penal Law that establishes
a new crime of promoting an obscene sexual performance by a child in
the first degree, which would be a class C felony.

Section 5 amends Section 263.10 of the Penal Law to rename the current
crime of promoting an obscene sexual performance by a child to
promoting an obscene sexual performance by a child in the second
degree, which would remain a class D felony, and increase the age of
the children protected by this second degree offense from less than
sixteen years to less than eighteen years of age.

Section 6 amends Section 263.11 of the Penal Law to increase the age
of children protected by the offense of possessing an obscene sexual
performance by a child from less than sixteen to less than eighteen
years of age.

Section 7 adds a new Section 263.13 to the Penal Law that establishes
the crime of promoting a sexual performance by a child in the first
degree, which would be a class C felony.

Section 8 amends Section 263.15 of the Penal Law to rename the current
crime of promoting a sexual performance by a child to promoting a
sexual performance by a child in the second degree, which remains a


class D felony, and increase the age of the children protected by
this second degree offense from less than sixteen to less than
eighteen years of age.

Section 9 amends Section 263.16 of the Penal Law to increase the age
of the children protected by the offense of possessing a sexual
performance by a child from less than sixteen to less than eighteen
years of age.

Section 10 amends subdivision 1 of Section 263.20 of the Penal Law to
provide an affirmative defense if, in good faith, the defendant
reasonably believed that the person appearing in a performance was
eighteen, rather than sixteen years of age.

Section 11 amends subdivisions 1 and 2 of Section 10.25 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 12 establishes an effective date.

JUSTIFICATION:
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 children of differing ages nor permitting consecutive
sentences. This bill affords greater protection to children by
providing a necessary deterrent to those who would 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 impose a higher penalty than presently applicable. This
bill would also extend the protection to children under the age of
eighteen, rather than under the age of sixteen. The imposition of
consecutive, rather than concurrent, sentences in this bill would add
an especially important deterrent to child pornographers, since the
very nature of their activity often may lead them to commit multiple
criminal acts. Child pornography is a uniquely heinous crime in that
the child is exploited at the time of the initial performance, as
well as every time the permanent recording is viewed. Thus, it seems
clear that the punishment should not be lost amid concurrent
sentences. This bill would ensure that such a criminal
will be held separately responsible for each of his or her criminal
acts.

LEGISLATIVE HISTORY:
2010:  S.6257 Referred to Codes - A.2506 (Pretlow) Referred to Codes
2004:  S.512-A Passed Senate - A.4950-A (Pretlow) Referred to Codes
2002:  S.851 Passed Senate - A.4266 (Robach) Referred to Codes
2000:  S.859 Passed Senate - A.1251 (Robach) Referred to Codes
1998:  S.7444 Passed Senate - A.4950 (Keane) Referred to Codes

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the first of November
following enactment.

2011-S622 (ACTIVE) - Bill Text download pdf

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

                                   622

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen.  KLEIN  -- 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] 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 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 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.
  USE OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE IS A  CLASS
B FELONY.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02656-01-1

S. 622                              2

  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. Section 263.11 of the penal law, as added by chapter  11  of  the
laws of 1996, is amended to read as follows:
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 knowingly  has
in  his  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 7. 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 8. 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

S. 622                              3

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 9. Section 263.16 of the penal law, as added by chapter  11  of  the
laws of 1996, is amended to read as follows:
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 knowingly has in his
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 10. 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  263.10, 263.11, 263.15 or
263.16 of this article, [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  11.  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 12. This act shall  take  effect  on  the  first  of  November  next
succeeding the date on which it shall have become a law.

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