BILL NUMBER:S619

TITLE OF BILL:
An act
to amend the penal law, in relation to promoting an obscene sexual
performance by a child in the first degree

PURPOSE OR GENERAL IDEA OF BILL:
To create two different classes of
the felony promoting an obscene sexual performance by a child; first
degree which is a C felony and second degree which is a D felony.

SUMMARY OF SPECIFIC PROVISIONS:
Section one amends the penal law by
adding a new section 263.09, promoting an obscene sexual performance
by a child in the first degree. Such crime shall be a C felony, when
knowing the character and content, a person produces or directs ten
or more obscene performances which include sexual conduct by a child
less than seventeen years of age. For purposes of this section, a
photograph shall mean a play, motion picture or dance, or a
photographic session at which multiple photographs are taken.

Section two amends section 263.10 of the penal law, as amended by
chapter 1 of the laws of 2000, by providing that 263.10, promoting an
obscene sexual performance by a child, shall be a crime in the second
degree. 263.10 is a D felony.
              

Section three provides that the effective date shall be the first of
November next succeeding the date on which it shall have become law.

JUSTIFICATION:
This bill responds to the increasing misuse of the
internet as a medium for the sexual exploitation and abuse of children.
A recent study by the National Center for Missing and Exploited
Children reports that 1 in 4 children were subjected to unwanted
exposure to pictures of nude individuals or people engaged in sexual
activity on the internet last year. Child pornography is a particular
threat, as it not only victimizes the children used in the production
or pictures, but creates a ripple effect in the victimization of
further children. Child abuse experts have documented the common
tendency of pedophiles to lower the inhibitions of potential victims
by exposing them to images of other children engaging in sexual
activity.

No level of child pornography is harmless and the current statutory
scheme reflects that insight. However, the unintended consequence of
a "one size fits all" statutory scheme lends itself to unwarranted
leniency for child pornographers overall. The high-volume dealer may
escape criminal liability proportionate to the crime, both through a
low top felony count and through the frequent conflation of multiple
counts at sentencing.

A statutory amendment to provide for higher penalties with regard to
child pornography offenses is urgently required to assist law
enforcement in the face of evolving technology. Over the past decade,
explosive growth in disk storage capacity has facilitated the


development of massive collections of child pornography, while
evolving internet communication technology has enabled collection
owners to organize sophisticated trade-or-profit-based mechanisms for
its distribution.
A higher penalty for a child pornography offense involving ten or more
performances is consistent with other New York statutes governing
distribution and possession of contraband. For example, in the area
of narcotics and possession of stolen property, the state statutes
are graded to reflect the insight that kingpins and mid-level
operatives generally pose a greater threat to society than
street-level criminals.
The higher penalty imposed by this bill would also be in harmony with
the effect of federal procedures in the area of child pornography.

Therefore, this legislation increases the penalty from a class D
felony to a class C felony when there are ten or more performances.

PRIOR LEGISLATIVE HISTORY:
2010:  S.6328  Referred to Codes
2008:  A.9615A Referred to Codes

FISCAL IMPLICATION:
None to the state.

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