NY State Senate Bill 2017-S716

Senate Bill S716

2017-2018 Legislative Session

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

download bill text pdf

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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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to codes returned to senate died in assembly
Jun 06, 2017	referred to codes delivered to assembly passed senate
Jun 05, 2017	ordered to third reading cal.1374 committee discharged and committed to rules
Jan 04, 2017	referred to codes

Votes

- Jun 6, 2017 - Floor Vote
  S716
  
  62
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 6, 2017
      
      aye (62)
      
      Addabbo Jr.
      
      Akshar
      
      Alcantara
      
      Amedore
      
      Avella
      
      Bailey
      
      Benjamin
      
      Bonacic
      
      Boyle
      
      Breslin
      
      Brooks
      
      Carlucci
      
      Comrie
      
      Croci
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Felder
      
      Flanagan
      
      Funke
      
      Gallivan
      
      Gianaris
      
      Golden
      
      Griffo
      
      Hamilton
      
      Hannon
      
      Helming
      
      Hoylman-Sigal
      
      Jacobs
      
      Kaminsky
      
      Kennedy
      
      Klein
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Latimer
      
      Little
      
      Marcellino
      
      Marchione
      
      Montgomery
      
      Murphy
      
      O'Mara
      
      Ortt
      
      Parker
      
      Peralta
      
      Persaud
      
      Phillips
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Sanders Jr.
      
      Savino
      
      Serrano
      
      Seward
      
      Squadron
      
      Stavisky
      
      Stewart-Cousins
      
      Tedisco
      
      Valesky
      
      Young
      
      excused (1)
      
      Serino
  Jun 5, 2017 - Rules Committee Vote
  S716
  
  22
  
  Aye
  
  0
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: Jun 5, 2017
      
      aye (22)
      
      Bonacic
      
      Breslin
      
      Carlucci
      
      DeFrancisco
      
      Flanagan
      
      Gianaris
      
      Griffo
      
      Hannon
      
      Kennedy
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Little
      
      Marcellino
      
      Ranzenhofer
      
      Robach
      
      Savino
      
      Seward
      
      Squadron
      
      Stewart-Cousins
      
      Valesky
      
      aye wr (2)
      
      Dilan
      
      Montgomery
      
      excused (1)
      
      Parker

2017-S716 (ACTIVE) - Details

See Assembly Version of this Bill:: A2402
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
2011-2012: S622, A3091
2013-2014: S2266, S6379, A2784
2015-2016: S1740, A1997
2019-2020: A4627
2021-2022: A3392
2023-2024: A3570

2017-S716 (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.

2017-S716 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S716

 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 subdivisions 1 and 2 of 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 Ll 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 70.25 of the Penal
Law and adds a new subdivision 6 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. 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 :

2015-16: S1740/A1997 - Passed Senate/Codes Committee
2014: S6379/A2784 - Passed Senate/Codes Committee

 FISCAL IMPLICATIONS :

None.

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

2017-S716 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    716
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2017
                                ___________
 
 Introduced  by Sen. CARLUCCI -- 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.
   § 2. The penal law is amended by adding a new section 263.03  to  read
 as follows:
 § 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 OR  SHE
 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 OR SHE CONSENTS TO THE PARTICIPATION BY SUCH
 CHILD IN A SEXUAL PERFORMANCE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01834-01-7

 S. 716                              2
 
   USE  OF A CHILD IN A SEXUAL PERFORMANCE IN THE FIRST DEGREE IS A CLASS
 B FELONY.
   §  3.  Section 263.05 of the penal law, as amended by chapter 1 of the
 laws of 2000, is amended to read as follows:
  § 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 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 partic-
 ipation by such child in a sexual performance.
   Use of a child in a sexual performance IN THE SECOND DEGREE is a class
 C felony.
   § 4. The penal law is amended by adding a new section 263.08  to  read
 as follows:
 § 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 OR SHE 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.
   §  5.  Section 263.10 of the penal law, as amended by chapter 1 of the
 laws of 2000, is amended to read as follows:
 § 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 OR SHE 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.
   § 6. Section 263.11 of the penal law, as amended by chapter 456 of the
 laws of 2012, is amended to read as follows:
 § 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, or knowingly accesses
 with intent to view,  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.
   §  7.  The penal law is amended by adding a new section 263.13 to read
 as follows:
 § 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 OR  SHE
 PRODUCES,  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.
   §  8.  Section 263.15 of the penal law, as amended by chapter 1 of the
 laws of 2000, is amended to read as follows:
 § 263.15 Promoting a sexual performance by a child IN THE SECOND DEGREE.

 S. 716                              3
 
   A person is guilty of promoting a sexual performance by a child IN THE
 SECOND DEGREE 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 IN THE SECOND DEGREE is a
 class D felony.
   § 9. Section 263.16 of the penal law, as amended by chapter 456 of the
 laws of 2012, is amended to read as follows:
 § 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, or knowingly accesses with intent to
 view, 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.
   § 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.
   §  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,

 S. 716                              4
 
 AND  ANY  OTHER  CRIME,  THE SENTENCES FOR SUCH CRIMES SHALL RUN CONSEC-
 UTIVELY.
   §  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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