BILL NUMBER: S3532

SPONSOR: CARLUCCI
 
TITLE OF BILL:  An act to amend the penal law, in relation to promot-
ing an obscene sexual performance by a child in the first degree

 
PURPOSE:

To create two different classes of the felony promoting an obscene sexu-
al performance by a child; first degree which is a C felony and second
degree which is a D felony.

 
SUMMARY OF PROVISIONS:

Section 1. Adds a new section 263.09 to the penal law, 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, & person
produces or directs ten or more obscene performances which include sexu-
al 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 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. Effective date.

 
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 indi-
viduals 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 docu-
mented 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 lenien-
cy 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 enforce-
ment 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 commu-
nication technology has enabled collection owners to organize sophisti-
cated trade-or-profit-based mechanisms for its distribution. A higher
penalty for a child pornography offense involving ten or more perform-
ances 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 penal-
ty 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.

 
LEGISLATIVE HISTORY:

2017-18: 5717 - PASSED SENATE
2015-16: S1739/A1985 - Passed Senate/Codes
2014: S6533/A4087 - Codes Committee/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.