BILL NUMBER:S2260

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 1: 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 2: 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 3: 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:  2012: S.619 Referred to Codes 2010: S.6328
Referred to Codes 2008: A.9615-A 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.