Prohibits accessing or distributing certain sexually explicit depictions of children; prohibits consent to such depictions by anyone under eighteen years of age; makes such crimes eligible for bail; includes certain crimes as sex offenses.
STATE OF NEW YORK
________________________________________________________________________
7519--B
2023-2024 Regular Sessions
IN ASSEMBLY
May 25, 2023
___________
Introduced by M. of A. SILLITTI, McDONALD, BRONSON, CONRAD, DICKENS,
ARDILA, GLICK, BUTTENSCHON, HYNDMAN, ZEBROWSKI, LEVENBERG, ZACCARO,
DAVILA -- read once and referred to the Committee on Codes -- recom-
mitted to the Committee on Codes in accordance with Assembly Rule 3,
sec. 2 -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- again reported from said
committee with amendments, ordered reprinted as amended and recommit-
ted to said committee
AN ACT to amend the penal law, the criminal procedure law and the
correction law, in relation to establishing offenses involving sexual-
ly explicit digital alterations
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "digital alterations protections act".
3 § 2. The penal law is amended by adding a new article 246 to read as
4 follows:
5 ARTICLE 246
6 OFFENSES INVOLVING SEXUALLY EXPLICIT DIGITAL ALTERATIONS
7 Section 246.00 Definitions.
8 246.05 Unlawful access of a sexually explicit depiction of a
9 child.
10 246.10 Unlawful distribution of a sexually explicit depiction of
11 a child in the second degree.
12 246.15 Unlawful distribution of a sexually explicit depiction of
13 a child in the first degree.
14 246.20 Disclaimers.
15 246.25 Consent.
16 246.30 Application of article.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11051-07-4
A. 7519--B 2
1 § 246.00 Definitions.
2 As used in this article, the following definitions shall apply:
3 1. "Disseminate" and "publish" shall have the same meanings as such
4 terms are defined in section 250.40 of this title.
5 2. "Create" means to design, develop, devise, generate, issue, make,
6 manufacture, produce, or transmute.
7 3. "Sexually explicit depiction" means any work created through sexu-
8 ally explicit digitization, including still and audio visual depictions.
9 4. "Sexually explicit digitization" means a realistic depiction of
10 either: (a) the nude body parts of another human being as the nude body
11 parts of the depicted individual or computer-generated nude body parts
12 as the nude body parts of the depicted individual; or (b) the depicted
13 individual engaging in sexual conduct, as defined by subdivision three
14 of section 263.00 of this part, or sexual contact, as defined by subdi-
15 vision three of section 130.00 of this part, in which the depicted indi-
16 vidual did not engage.
17 5. "Audio visual" means any film, motion picture, audio and/or visual
18 recording, digital image, computer image or computer-generated image.
19 6. "Sexually explicit material" means any portion of a sexually
20 explicit depiction that shows the depicted individual performing, or
21 appearing to perform, in the nude, meaning with an unclothed or exposed
22 intimate part, as defined in section 245.15 of this title, or performing
23 in, appearing to perform in, or being subjected to, sexual conduct, as
24 defined by subdivision three of section 263.00 of this part, or sexual
25 contact, as defined by subdivision three of section 130.00 of this part.
26 7. "Depicted individual" means an identifiable person who appears, as
27 a result of sexually explicit digitization, to be engaging in conduct in
28 which the identifiable person did not actually engage in or that was
29 actually engaged in by the identifiable person but the depiction of the
30 actual conduct was subsequently altered to be in violation of this arti-
31 cle.
32 8. "Identifiable person" means an individual whose image is or would
33 be reasonably identifiable as a specific person. Such identification
34 can be based upon the sexually explicit depiction itself or from infor-
35 mation displayed in connection with any sexually explicit depiction.
36 9. "Individual" means a natural, human being.
37 § 246.05 Unlawful access of a sexually explicit depiction of a child.
38 A person is guilty of unlawful access of a sexually explicit depiction
39 of a child when the person, knowing the character and content thereof,
40 knowingly accesses any sexually explicit material of a depicted individ-
41 ual with the intent to view and sexually gratify any person and such
42 person knows or reasonably should have known that the depicted individ-
43 ual is less than seventeen years of age.
44 Unlawful access of a sexually explicit depiction of a child is a class
45 A misdemeanor.
46 § 246.10 Unlawful distribution of a sexually explicit depiction of a
47 child in the second degree.
48 A person is guilty of unlawful distribution of a sexually explicit
49 depiction of a child in the second degree when the person, knowing the
50 character and content thereof, disseminates or publishes sexually
51 explicit material that includes a depicted individual, and such person
52 knows or reasonably should have known that the depicted individual is
53 less than seventeen years of age.
54 Unlawful distribution of a sexually explicit depiction of a child in
55 the second degree is a class E felony.
A. 7519--B 3
1 § 246.15 Unlawful distribution of a sexually explicit depiction of a
2 child in the first degree.
3 A person is guilty of unlawful distribution of a sexually explicit
4 depiction of a child in the first degree when the person, knowing the
5 character and content thereof, creates and either disseminates or
6 publishes sexually explicit material that includes a depicted individual
7 and such depicted individual is less than seventeen years of age.
8 Unlawful distribution of a sexually explicit depiction of a child in
9 the first degree is a class D felony.
10 § 246.20 Disclaimers.
11 It shall not be a defense under this article that:
12 1. there is a disclaimer included in the sexually explicit depiction
13 that communicates that the inclusion of the depicted individual was
14 unauthorized, that the depicted individual did not participate in the
15 creation or development of the sexually explicit depiction, or that the
16 sexually explicit depiction has been altered through digitization; or
17 2. the features of the depicted individual have been or were altered
18 prior to or after the creation or distribution of the sexually explicit
19 material, provided that the depicted individual remains an identifiable
20 person.
21 § 246.25 Consent.
22 A person under eighteen years of age shall be incapable of consent.
23 No adult can consent on behalf of a person under eighteen years of age.
24 § 246.30 Application of article.
25 1. This article shall not apply to the following:
26 (a) the reporting of unlawful conduct;
27 (b) the creation, dissemination, or publication of a sexually explicit
28 depiction of a depicted individual made for law enforcement purposes,
29 legal proceedings, or lawful medical treatments; or
30 (c) the creation, dissemination, or publication of a sexually explicit
31 depiction made for a legitimate public purpose, including for political
32 or newsworthy value or similar work, commentary, criticism, or disclo-
33 sure that is otherwise protected by the constitution of this state or of
34 the United States, provided that sexually explicit material shall not be
35 considered of newsworthy value solely because the depicted individual is
36 a public figure.
37 2. Nothing in this article shall be construed to limit, or to enlarge,
38 the protections that 47 U.S.C. § 230 confers on an interactive computer
39 service for content provided by another information content provider, as
40 such terms are defined in 47 U.S.C. § 230.
41 § 3. Paragraph (a) of subdivision 1 of section 245.15 of the penal
42 law, as amended by chapter 513 of the laws of 2023, is amended to read
43 as follows:
44 (a) with intent to sexually gratify that person or another person or
45 with the intent to cause harm to the reputation or emotional, financial
46 or physical welfare of another person, they intentionally disseminate or
47 publish a still or video image depicting such other person with one or
48 more intimate parts exposed or engaging in sexual conduct with another
49 person, including an image created or altered by digitization, where
50 such person may reasonably be identified from the still or video image
51 itself or from information displayed in connection with the still or
52 video image; and
53 § 4. Paragraph (b) of subdivision 1 of section 245.15 of the penal
54 law, as amended by chapter 513 of the laws of 2023, is amended to read
55 as follows:
A. 7519--B 4
1 (b) the actor knew or reasonably should have known that the person
2 depicted did not consent to such creation, dissemination, or publica-
3 tion, including the creation, dissemination, or publication of an image
4 taken with the consent of the person depicted when such person had a
5 reasonable expectation that the image would remain private, regardless
6 of whether the actor was present when such image was taken.
7 § 5. Subdivision 2 of section 30.10 of the criminal procedure law is
8 amended by adding a new paragraph (a-3) to read as follows:
9 (a-3) A prosecution for unlawful distribution of a sexually explicit
10 depiction of a child must be commenced within five years after the peri-
11 od set forth in paragraph (f) of subdivision three of this section;
12 § 6. Paragraph (f) of subdivision 3 of section 30.10 of the criminal
13 procedure law, as amended by chapter 11 of the laws of 2019, is amended
14 to read as follows:
15 (f) For purposes of a prosecution involving a sexual offense as
16 defined in article one hundred thirty of the penal law, other than a
17 sexual offense delineated in paragraph (a) of subdivision two of this
18 section, committed against a child less than eighteen years of age,
19 incest in the first, second or third degree as defined in sections
20 255.27, 255.26 and 255.25 of the penal law committed against a child
21 less than eighteen years of age, [or] use of a child in a sexual
22 performance as defined in section 263.05 of the penal law, or unlawful
23 distribution of a sexually explicit depiction of a child in the first
24 degree or second degree as defined in sections 246.10 and 246.15 of the
25 penal law, the period of limitation shall not begin to run until the
26 child has reached the age of twenty-three or the offense is reported to
27 a law enforcement agency or statewide central register of child abuse
28 and maltreatment, whichever occurs earlier.
29 § 7. Paragraph (e) of subdivision 4 of section 510.10 of the criminal
30 procedure law, as amended by section 2 of part UU of chapter 56 of the
31 laws of 2020, is amended to read as follows:
32 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
33 the penal law, or a felony sex offense defined in section 70.80 of the
34 penal law, or a crime involving incest as defined in section 255.25,
35 255.26 or 255.27 of such law, or a misdemeanor defined in article one
36 hundred thirty of such law, or a felony defined in article two hundred
37 forty-six of such law;
38 § 8. Subparagraph (v) of paragraph (b) of subdivision 1 of section
39 530.20 of the criminal procedure law, as amended by section 3 of part UU
40 of chapter 56 of the laws of 2020, is amended to read as follows:
41 (v) a sex trafficking offense defined in section 230.34 or 230.34-a of
42 the penal law, or a felony sex offense defined in section 70.80 of the
43 penal law or a crime involving incest as defined in section 255.25,
44 255.26 or 255.27 of such law, or a misdemeanor defined in article one
45 hundred thirty of such law, or a felony defined in article two hundred
46 forty-six of such law;
47 § 9. Paragraph (m) of subdivision 4 of section 530.40 of the criminal
48 procedure law, as added by section 4 of part UU of chapter 56 of the
49 laws of 2020, is amended to read as follows:
50 (m) assault in the third degree as defined in section 120.00 of the
51 penal law or arson in the third degree as defined in section 150.10 of
52 the penal law, when such crime is charged as a hate crime as defined in
53 section 485.05 of the penal law, or a felony defined in article two
54 hundred forty-six of the penal law;
A. 7519--B 5
1 § 10. Subparagraph (i) of paragraph (a) of subdivision 2 of section
2 168-a of the correction law, as amended by chapter 189 of the laws of
3 2018, is amended to read as follows:
4 (i) a conviction of or a conviction for an attempt to commit any of
5 the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.40,
6 130.45, 130.60, 230.34, 230.34-a, 250.50, 255.25, 255.26 [and], 255.27,
7 246.10 and 246.15 or article two hundred sixty-three of the penal law,
8 or section 135.05, 135.10, 135.20 or 135.25 of such law relating to
9 kidnapping offenses, provided the victim of such kidnapping or related
10 offense is less than seventeen years old and the offender is not the
11 parent of the victim, or section 230.04, where the person patronized is
12 in fact less than seventeen years of age, 230.05, 230.06, 230.11,
13 230.12, 230.13, subdivision two of section 230.30, section 230.32,
14 230.33, or 230.34 of the penal law, or section 230.25 of the penal law
15 where the person prostituted is in fact less than seventeen years old,
16 or
17 § 11. Subparagraph (i) of paragraph (a) of subdivision 2 of section
18 168-a of the correction law, as amended by chapter 23 of the laws of
19 2024, is amended to read as follows:
20 (i) a conviction of or a conviction for an attempt to commit any of
21 the provisions of sections 120.70, 130.20, 130.25, 130.30, former
22 section 130.40, former section 130.45, sections 130.60, 230.34,
23 230.34-a, 250.50, 255.25, 255.26 [and], 255.27, 246.10 and 246.15 or
24 article two hundred sixty-three of the penal law, or section 135.05,
25 135.10, 135.20 or 135.25 of such law relating to kidnapping offenses,
26 provided the victim of such kidnapping or related offense is less than
27 seventeen years old and the offender is not the parent of the victim, or
28 section 230.04, where the person patronized is in fact less than seven-
29 teen years of age, 230.05, 230.06, 230.11, 230.12, 230.13, subdivision
30 two of section 230.30, section 230.32, 230.33, or 230.34 of the penal
31 law, or section 230.25 of the penal law where the person prostituted is
32 in fact less than seventeen years old, or
33 § 12. Severability. If any provision of this article, or any applica-
34 tion of any provision of this article, is held to be invalid, that shall
35 not affect the validity or effectiveness of any other provision of this
36 act, or of any other application of any provision of this act, which can
37 be given effect without that provision or application; and to that end,
38 the provisions and applications of this act are severable.
39 § 13. This act shall take effect immediately; provided, however, that
40 the amendments to subdivision 2 of section 168-a of the correction law,
41 made by section eleven of this act shall take effect on the same date
42 and in the same manner as section 32 of chapter 23 of the laws of 2024,
43 takes effect.
