S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2683
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 26, 2023
                                ___________
 
 Introduced  by  M.  of  A.  BLUMENCRANZ -- read once and referred to the
   Committee on Codes
 
 AN ACT to amend the penal law, in relation to sexual  performance  by  a
   child under the age of eighteen years
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Article 263 of the penal law, as added by  chapter  910  of
 the  laws  of  1977,  subdivisions  1  and 2 of section 263.00, sections
 263.05, 263.10, 263.15, 263.25 and subdivision 1 of  section  263.20  as
 amended  by  chapter  1  of  the  laws  of 2000, subdivisions 3 and 7 of
 section 263.00 as amended by chapter 264 of the laws of  2003,  sections
 263.11  and  263.16  as  amended  and subdivision 9 of section 263.00 as
 added by chapter 456 of the laws of 2012 and section 263.30 as added  by
 chapter 431 of the laws of 2008, is amended to read as follows:
                                ARTICLE 263
                       SEXUAL PERFORMANCE BY A CHILD
 Section 263.00  Definitions.
         263.05  Use of a child in a sexual performance.
         263.10  Promoting an obscene sexual performance by a child.
         263.11  Possessing an obscene sexual performance by a child.
         263.15  Promoting a sexual performance by a child.
         263.16  Possessing a sexual performance by a child.
         263.20  Sexual performance by a child; affirmative defenses.
         263.25  Proof of age of child.
         263.30  Facilitating  a  sexual  performance  by  a child with a
                   controlled substance or alcohol.
 § 263.00 Definitions.
   As used in this article the following definitions shall apply:
   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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06889-01-3
              

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 section 263.05 or 263.15 of this article, includes sexual conduct  by  a
 child less than [seventeen] EIGHTEEN 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] EIGHTEEN  years  of  age,  in  any  material  which  is
 obscene,  as  such  term  is defined in section 235.00 of this [chapter]
 PART.
   3. "Sexual conduct" means actual or simulated sexual intercourse, oral
 sexual conduct, anal sexual conduct,  sexual  bestiality,  masturbation,
 sado-masochistic abuse, or lewd exhibition of the genitals.
   4.  "Performance" means any play, motion picture, photograph or dance.
 Performance also means any other visual representation exhibited  before
 an audience.
   5.  "Promote"  means  to  procure,  manufacture,  issue,  sell,  give,
 provide, lend, mail, deliver, transfer, transmute, publish,  distribute,
 circulate,  disseminate,  present,  exhibit or advertise, or to offer or
 agree to do the same.
   6. "Simulated" means the explicit depiction of any of the conduct  set
 forth  in subdivision three of this section which creates the appearance
 of such conduct and which exhibits any uncovered portion of the breasts,
 genitals or buttocks.
   7. "Oral sexual conduct" and "anal sexual conduct"  mean  the  conduct
 defined by subdivision two of section 130.00 of this chapter.
   8.  "Sado-masochistic  abuse" means the conduct defined in subdivision
 five of section 235.20 of this [chapter] PART.
   9. For purposes of sections 263.10, 263.11, 263.15 and 263.16 of  this
 article,  the  terms  "possession,"  "control" and "promotion" shall not
 include conduct by an attorney when the performance was provided to such
 attorney in relation to the representation of a  person  under  investi-
 gation  or charged under this chapter or as a respondent pursuant to the
 family court act, and is limited in use for  the  purpose  of  represen-
 tation for the period of such representation.
 § 263.05 Use of a child in a sexual performance.
   A  person  is  guilty of the use of a child in a sexual performance 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 participation by such child  in
 a sexual performance.
   Use of a child in a sexual performance is a class C felony.
 § 263.10 Promoting an obscene sexual performance by a child.
   A  person  is  guilty  of promoting an obscene sexual performance by a
 child when, knowing the character and content thereof, he OR SHE produc-
 es, 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 is a class D felo-
 ny.
 § 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.
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   Possessing an obscene sexual performance by a child is a class E felo-
 ny.
 § 263.15 Promoting a sexual performance by a child.
   A  person is guilty of promoting a sexual performance by a child 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 is a class D felony.
 § 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.
 § 263.20 Sexual performance by a child; affirmative defenses.
   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 263.11 or 263.16 of this  arti-
 cle, [sixteen] EIGHTEEN 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.
   2. In any prosecution for any offense pursuant to this article, it  is
 an  affirmative  defense  that  the  person  so  charged was a librarian
 engaged in the normal course of his OR HER employment, a motion  picture
 projectionist,  stage  employee or spotlight operator, cashier, doorman,
 usher, candy stand attendant, porter or in any other  non-managerial  or
 non-supervisory capacity in a motion picture theatre; provided he OR SHE
 has  no  financial  interest,  other  than  his OR HER employment, which
 employment does not encompass compensation based upon any proportion  of
 the  gross  receipts, in the promotion of a sexual performance for sale,
 rental or exhibition or in the promotion, presentation or  direction  of
 any  sexual performance, or is in any way responsible for acquiring such
 material for sale, rental or exhibition.
 § 263.25 Proof of age of child.
   Whenever it becomes necessary for the  purposes  of  this  article  to
 determine  whether  a child who participated in a sexual performance was
 under [an age specified in this article,] THE AGE OF EIGHTEEN YEARS  the
 court  or  jury  may  make  such  determination by any of the following:
 personal inspection of the child; inspection of a photograph  or  motion
 picture  which  constituted  the sexual performance; oral testimony by a
 witness to the sexual performance as to the age of the child based  upon
 the  child's appearance; expert medical testimony based upon the appear-
 ance of the child in  the  sexual  performance;  and  any  other  method
 authorized  by  any  applicable  provision  of  law  or  by the rules of
 evidence at common law.
 § 263.30 Facilitating a sexual performance by a child with a  controlled
            substance or alcohol.
   1.  A person is guilty of facilitating a sexual performance by a child
 with a controlled substance or alcohol when he or she:
   (a) (i) knowingly and unlawfully possesses a controlled  substance  as
 defined  in section thirty-three hundred six of the public health law or
 any controlled substance that requires a prescription  to  obtain,  (ii)
 administers  that  substance  to  a  person under the age of [seventeen]
 EIGHTEEN without such person's consent, (iii) intends to commit  against
 such  person conduct constituting a felony as defined in section 263.05,
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 263.10, or 263.15 of this article, and (iv) does so commit or attempt to
 commit such conduct against such person; or
   (b)  (i)  administers alcohol to a person under the age of [seventeen]
 EIGHTEEN without such person's consent, (ii) intends to  commit  against
 such  person  conduct  constituting  a felony defined in section 263.05,
 263.10, or 263.15 of this article, and (iii) does so commit  or  attempt
 to commit such conduct against such person.
   2.  For the purposes of this section, "controlled substance" means any
 substance or preparation, compound, mixture,  salt,  or  isomer  of  any
 substance  defined  in  section  thirty-three  hundred six of the public
 health law.
   Facilitating a  sexual  performance  by  a  child  with  a  controlled
 substance or alcohol is a class B felony.
   § 2. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.