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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7396
SPONSOR: Pretlow 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 provid-
ing for consecutive sentencing upon certain multiple convictions
PURPOSE:
This bill increases the penalties for using a child in a sexual perform-
ance and promoting an obscene sexual performance by a child and imposes
consecutive--as opposed to concurrent--sentences on a child pornogra-
phers.
SUMMARY OF PROVISIONS:
Section 1 amends Section 263.00 of the Penal Law to amend the defi-
nitions 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 that 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 D 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 asexual 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 sexu-
al 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 reason-
ably 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 10.25 of the Penal Law
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 establishes an 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. Specif-
ically, new sections of the Penal Law would be created to protect chil-
dren. 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 imposi-
tion 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 s eparately
responsible for each of his or her criminal acts.
LEGISLATIVE HISTORY:
2023-2024 A3570 referred to codes
2022 01/05/22 A3392 referred to codes
2019-2020- A4627 referred to codes
S716 2017/2018 referred to codes
A2402 2017/2018 referred to codes
01/06/16 referred to codes
01/13/15 referred to codes
2013 - 14 A2784 referred to codes A2506 2009/2010 referred to codes
2004 - S.512-A Passed Senate - A.4950-A (Pretlow) Referred to Assembly
Codes
2003 - S.512-A Passed Senate - A.4950 (Pretlow) Referred to Assembly
Codes
2002 - S.851 Passed Senate- A.4266 (Robach) Held in Assembly Codes
2001 - S.851 Passed Senate- A.4266 (Robach) Held in Assembly Codes
2000 - S.859 Passed Senate - A.1251 (Robach) Held in Assembly Codes
1999 - S.859 Passed Senate A.1251 (Robach) Referred to Assembly Codes
1998 - S.7444 Passed Senate A.2607-A (Keane) Referred to Assembly Codes
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect on the first of November following enactment.
STATE OF NEW YORK
________________________________________________________________________
7396
2025-2026 Regular Sessions
IN ASSEMBLY
March 25, 2025
___________
Introduced by M. of A. PRETLOW -- read once and referred to the Commit-
tee 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:
1 Section 1. Subdivisions 1 and 2 of section 263.00 of the penal law, as
2 amended by chapter 1 of the laws of 2000, are amended to read as
3 follows:
4 1. "Sexual performance" means any performance or part thereof which[,
5 for purposes of section 263.16 of this article,] includes sexual conduct
6 by a child less than [sixteen] eighteen years of age [or, for purposes
7 of section 263.05 or 263.15 of this article, includes sexual conduct by
8 a child less than seventeen years of age].
9 2. "Obscene sexual performance" means any performance which[, for
10 purposes of section 263.11 of this article,] includes sexual conduct by
11 a child less than [sixteen] eighteen years of age [or, for purposes of
12 section 263.10 of this article, includes sexual conduct by a child less
13 than seventeen years of age,] in any material which is obscene, as such
14 term is defined in section 235.00 of this [chapter] part.
15 § 2. The penal law is amended by adding a new section 263.03 to read
16 as follows:
17 § 263.03 Use of a child in a sexual performance in the first degree.
18 A person is guilty of the use of a child in a sexual performance in
19 the first degree if knowing the character and content thereof such
20 person employs, authorizes or induces a child less than twelve years of
21 age to engage in a sexual performance or being a parent, legal guardian
22 or custodian of such child, such person consents to the participation by
23 such child in a sexual performance.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10121-01-5
A. 7396 2
1 Use of a child in a sexual performance in the first degree is a class
2 B felony.
3 § 3. Section 263.05 of the penal law, as amended by chapter 1 of the
4 laws of 2000, is amended to read as follows:
5 § 263.05 Use of a child in a sexual performance in the second degree.
6 A person is guilty of the use of a child in a sexual performance in
7 the second degree if knowing the character and content thereof [he] such
8 person employs, authorizes or induces a child less than [seventeen]
9 eighteen years of age to engage in a sexual performance or being a
10 parent, legal guardian or custodian of such child, [he] such person
11 consents to the participation by such child in a sexual performance.
12 Use of a child in a sexual performance in the second degree is a class
13 C felony.
14 § 4. The penal law is amended by adding a new section 263.08 to read
15 as follows:
16 § 263.08 Promoting an obscene sexual performance by a child in the first
17 degree.
18 A person is guilty of promoting an obscene sexual performance by a
19 child in the first degree when, knowing the character and content there-
20 of, such person produces, directs or promotes any obscene performance
21 which includes sexual conduct by a child less than twelve years of age.
22 Promoting an obscene sexual performance by a child in the first degree
23 is a class C felony.
24 § 5. Section 263.10 of the penal law, as amended by chapter 1 of the
25 laws of 2000, is amended to read as follows:
26 § 263.10 Promoting an obscene sexual performance by a child in the
27 second degree.
28 A person is guilty of promoting an obscene sexual performance by a
29 child in the second degree when, knowing the character and content ther-
30 eof, [he] such person produces, directs or promotes any obscene perform-
31 ance which includes sexual conduct by a child less than [seventeen]
32 eighteen years of age.
33 Promoting an obscene sexual performance by a child in the second
34 degree is a class D felony.
35 § 6. Section 263.11 of the penal law, as amended by chapter 456 of the
36 laws of 2012, is amended to read as follows:
37 § 263.11 Possessing an obscene sexual performance by a child.
38 A person is guilty of possessing an obscene sexual performance by a
39 child when, knowing the character and content thereof, [he] such person
40 knowingly has in [his] their possession or control, or knowingly
41 accesses with intent to view, any obscene performance which includes
42 sexual conduct by a child less than [sixteen] eighteen years of age.
43 Possessing an obscene sexual performance by a child is a class E felo-
44 ny.
45 § 7. The penal law is amended by adding a new section 263.13 to read
46 as follows:
47 § 263.13 Promoting a sexual performance by a child in the first degree.
48 A person is guilty of promoting a sexual performance by a child in the
49 first degree when, knowing the character and content thereof, such
50 person produces, directs or promotes any performance which includes
51 sexual conduct by a child less than twelve years of age.
52 Promoting a sexual performance by a child in the first degree is a
53 class C felony.
54 § 8. Section 263.15 of the penal law, as amended by chapter 1 of the
55 laws of 2000, is amended to read as follows:
56 § 263.15 Promoting a sexual performance by a child in the second degree.
A. 7396 3
1 A person is guilty of promoting a sexual performance by a child in the
2 second degree when, knowing the character and content thereof, [he] such
3 person produces, directs or promotes any performance which includes
4 sexual conduct by a child less than [seventeen] eighteen years of age.
5 Promoting a sexual performance by a child in the second degree is a
6 class D felony.
7 § 9. Section 263.16 of the penal law, as amended by chapter 456 of the
8 laws of 2012, is amended to read as follows:
9 § 263.16 Possessing a sexual performance by a child.
10 A person is guilty of possessing a sexual performance by a child when,
11 knowing the character and content thereof, [he] such person knowingly
12 has in [his] their possession or control, or knowingly accesses with
13 intent to view, any performance which includes sexual conduct by a child
14 less than [sixteen] eighteen years of age.
15 Possessing a sexual performance by a child is a class E felony.
16 § 10. Subdivision 1 of section 263.20 of the penal law, as amended by
17 chapter 1 of the laws of 2000, is amended to read as follows:
18 1. Under this article, it shall be an affirmative defense that the
19 defendant in good faith reasonably believed the person appearing in the
20 performance was, for purposes of section 263.10, 263.11, 263.15 or
21 263.16 of this article, [sixteen years of age or over or, for purposes
22 of section 263.05, 263.10 or 263.15 of this article, seventeen] eighteen
23 years of age or over.
24 § 11. The opening paragraph of subdivision 1 and subdivision 2 of
25 section 70.25 of the penal law, the opening paragraph of subdivision 1
26 as amended by chapter 372 of the laws of 1981 and subdivision 2 as
27 amended by chapter 56 of the laws of 1984, are amended and a new subdi-
28 vision 6 is added to read as follows:
29 Except as provided in subdivisions two, two-a [and], five and six of
30 this section, when multiple sentences of imprisonment are imposed on a
31 person at the same time, or when a person who is subject to any undisc-
32 harged term of imprisonment imposed at a previous time by a court of
33 this state is sentenced to an additional term of imprisonment, the
34 sentence or sentences imposed by the court shall run either concurrently
35 or consecutively with respect to each other and the undischarged term or
36 terms in such manner as the court directs at the time of sentence. If
37 the court does not specify the manner in which a sentence imposed by it
38 is to run, the sentence shall run as follows:
39 2. When more than one sentence of imprisonment is imposed on a person
40 for two or more offenses committed through a single act or omission, or
41 through an act or omission which in itself constituted one of the
42 offenses and also was a material element of the other, the sentences,
43 except if one or more of such sentences is for a violation of section
44 263.03, 263.05, 263.08, 263.10, 263.13, 263.15, or 270.20 of this chap-
45 ter, must run concurrently.
46 6. When a person is convicted of use of a child in a sexual perform-
47 ance in the first degree as defined in section 263.03 of this chapter or
48 use of a child in a sexual performance in the second degree as defined
49 in section 263.05 of this chapter or promoting an obscene sexual
50 performance by a child in the first degree as defined in section 263.08
51 of this chapter or promoting an obscene sexual performance by a child in
52 the second degree as defined in section 263.10 of this chapter or
53 promoting a sexual performance by a child in the first degree as defined
54 in section 263.13 of this chapter or promoting a sexual performance by a
55 child in the second degree as defined in section 263.15 of this chapter,
A. 7396 4
1 and any other crime, the sentences for such crimes shall run consec-
2 utively.
3 § 12. This act shall take effect on the first of November next
4 succeeding the date on which it shall have become a law.
