Increases from 16 to 18 years the age below which a sexual performance by a child of such years becomes a crime on the part of anyone using, employing, authorizing, producing, directing or promoting any such sexual performance.
STATE OF NEW YORK
________________________________________________________________________
2273
2009-2010 Regular Sessions
IN ASSEMBLY
January 15, 2009
___________
Introduced by M. of A. REILICH, KOLB, ERRIGO, FINCH, ALFANO -- Multi-
Sponsored by -- M. of A. BACALLES, BARRA, CROUCH, McDONOUGH, OAKS --
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:
1 Section 1. Article 263 of the penal law, as added by chapter 910 of
2 the laws of 1977, subdivisions 1 and 2 of section 263.00, sections
3 263.05, 263.10, 263.15, 263.25 and subdivision 1 of section 263.20 as
4 amended by chapter 1 of the laws of 2000, sections 263.11 and 263.16 as
5 added by chapter 11 of the laws of 1996, subdivisions 3 and 7 of section
6 263.00 as amended by chapter 264 of the laws of 2003 and section 263.30
7 as added by chapter 431 of the laws of 2008, is amended to read as
8 follows:
9 ARTICLE 263
10 SEXUAL PERFORMANCE BY A CHILD
11 Section 263.00 Definitions.
12 263.05 Use of a child in a sexual performance.
13 263.10 Promoting an obscene sexual performance by a child.
14 263.11 Possessing an obscene sexual performance by a child.
15 263.15 Promoting a sexual performance by a child.
16 263.16 Possessing a sexual performance by a child.
17 263.20 Sexual performance by a child; affirmative defenses.
18 263.25 Proof of age of child.
19 263.30 Facilitating a sexual performance by a child with a
20 controlled substance or alcohol.
21 § 263.00 Definitions.
22 As used in this article the following definitions shall apply:
23 1. "Sexual performance" means any performance or part thereof which,
24 for purposes of section 263.16 of this article, includes sexual conduct
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04352-01-9
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1 by a child less than [sixteen] eighteen years of age or, for purposes of
2 section 263.05 or 263.15 of this article, includes sexual conduct by a
3 child less than [seventeen] eighteen years of age.
4 2. "Obscene sexual performance" means any performance which, for
5 purposes of section 263.11 of this article, includes sexual conduct by a
6 child less than [sixteen] eighteen years of age or, for purposes of
7 section 263.10 of this article, includes sexual conduct by a child less
8 than [seventeen] eighteen years of age, in any material which is
9 obscene, as such term is defined in section 235.00 of this chapter.
10 3. "Sexual conduct" means actual or simulated sexual intercourse, oral
11 sexual conduct, anal sexual conduct, sexual bestiality, masturbation,
12 sado-masochistic abuse, or lewd exhibition of the genitals.
13 4. "Performance" means any play, motion picture, photograph or dance.
14 Performance also means any other visual representation exhibited before
15 an audience.
16 5. "Promote" means to procure, manufacture, issue, sell, give,
17 provide, lend, mail, deliver, transfer, transmute, publish, distribute,
18 circulate, disseminate, present, exhibit or advertise, or to offer or
19 agree to do the same.
20 6. "Simulated" means the explicit depiction of any of the conduct set
21 forth in subdivision three of this section which creates the appearance
22 of such conduct and which exhibits any uncovered portion of the breasts,
23 genitals or buttocks.
24 7. "Oral sexual conduct" and "anal sexual conduct" mean the conduct
25 defined by subdivision two of section 130.00 of this chapter.
26 8. "Sado-masochistic abuse" means the conduct defined in subdivision
27 five of section 235.20 of this chapter.
28 § 263.05 Use of a child in a sexual performance.
29 A person is guilty of the use of a child in a sexual performance if
30 knowing the character and content thereof he or she employs, authorizes
31 or induces a child less than [seventeen] eighteen years of age to engage
32 in a sexual performance or being a parent, legal guardian or custodian
33 of such child, he or she consents to the participation by such child in
34 a sexual performance.
35 Use of a child in a sexual performance is a class C felony.
36 § 263.10 Promoting an obscene sexual performance by a child.
37 A person is guilty of promoting an obscene sexual performance by a
38 child when, knowing the character and content thereof, he or she produc-
39 es, directs or promotes any obscene performance which includes sexual
40 conduct by a child less than [seventeen] eighteen years of age.
41 Promoting an obscene sexual performance by a child is a class D felo-
42 ny.
43 § 263.11 Possessing an obscene sexual performance by a child.
44 A person is guilty of possessing an obscene sexual performance by a
45 child when, knowing the character and content thereof, he or she know-
46 ingly has in his or her possession or control any obscene performance
47 which includes sexual conduct by a child less than [sixteen] eighteen
48 years of age.
49 Possessing an obscene sexual performance by a child is a class E felo-
50 ny.
51 § 263.15 Promoting a sexual performance by a child.
52 A person is guilty of promoting a sexual performance by a child when,
53 knowing the character and content thereof, he or she produces, directs
54 or promotes any performance which includes sexual conduct by a child
55 less than [seventeen] eighteen years of age.
56 Promoting a sexual performance by a child is a class D felony.
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1 § 263.16 Possessing a sexual performance by a child.
2 A person is guilty of possessing a sexual performance by a child when,
3 knowing the character and content thereof, he or she knowingly has in
4 his or her possession or control any performance which includes sexual
5 conduct by a child less than [sixteen] eighteen years of age.
6 Possessing a sexual performance by a child is a class E felony.
7 § 263.20 Sexual performance by a child; affirmative defenses.
8 1. Under this article, it shall be an affirmative defense that the
9 defendant in good faith reasonably believed the person appearing in the
10 performance was, for purposes of section 263.11 or 263.16 of this arti-
11 cle, [sixteen] eighteen years of age or over or, for purposes of section
12 263.05, 263.10 or 263.15 of this article, [seventeen] eighteen years of
13 age or over.
14 2. In any prosecution for any offense pursuant to this article, it is
15 an affirmative defense that the person so charged was a librarian
16 engaged in the normal course of his or her employment, a motion picture
17 projectionist, stage employee or spotlight operator, cashier, doorman,
18 usher, candy stand attendant, porter or in any other non-managerial or
19 non-supervisory capacity in a motion picture theatre; provided he or she
20 has no financial interest, other than his or her employment, which
21 employment does not encompass compensation based upon any proportion of
22 the gross receipts, in the promotion of a sexual performance for sale,
23 rental or exhibition or in the promotion, presentation or direction of
24 any sexual performance, or is in any way responsible for acquiring such
25 material for sale, rental or exhibition.
26 § 263.25 Proof of age of child.
27 Whenever it becomes necessary for the purposes of this article to
28 determine whether a child who participated in a sexual performance was
29 under [an age specified in this article,] the age of eighteen years the
30 court or jury may make such determination by any of the following:
31 personal inspection of the child; inspection of a photograph or motion
32 picture which constituted the sexual performance; oral testimony by a
33 witness to the sexual performance as to the age of the child based upon
34 the child's appearance; expert medical testimony based upon the appear-
35 ance of the child in the sexual performance; and any other method
36 authorized by any applicable provision of law or by the rules of
37 evidence at common law.
38 § 263.30 Facilitating a sexual performance by a child with a controlled
39 substance or alcohol.
40 1. A person is guilty of facilitating a sexual performance by a child
41 with a controlled substance or alcohol when he or she:
42 (a) (i) knowingly and unlawfully possesses a controlled substance as
43 defined in section thirty-three hundred six of the public health law or
44 any controlled substance that requires a prescription to obtain, (ii)
45 administers that substance to a person under the age of [seventeen]
46 eighteen without such person's consent, (iii) intends to commit against
47 such person conduct constituting a felony as defined in section 263.05,
48 263.10, or 263.15 of this article, and (iv) does so commit or attempt to
49 commit such conduct against such person; or
50 (b) (i) administers alcohol to a person under the age of [seventeen]
51 eighteen without such person's consent, (ii) intends to commit against
52 such person conduct constituting a felony defined in section 263.05,
53 263.10, or 263.15 of this article, and (iii) does so commit or attempt
54 to commit such conduct against such person.
55 2. For the purposes of this section, "controlled substance" means any
56 substance or preparation, compound, mixture, salt, or isomer of any
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1 substance defined in section thirty-three hundred six of the public
2 health law.
3 Facilitating a sexual performance by a child with a controlled
4 substance or alcohol is a class B felony.
5 § 2. This act shall take effect on the first of November next succeed-
6 ing the date on which it shall have become a law.
