Bill Text: NY S00716 | 2017-2018 | General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2018-01-03 - REFERRED TO CODES [S00716 Detail]

Download: New_York-2017-S00716-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                           716
                               2017-2018 Regular Sessions
                    IN SENATE
                                     January 4, 2017
                                       ___________
        Introduced  by Sen. CARLUCCI -- read twice and ordered printed, and when
          printed to be committed to the Committee 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.
    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 he or  she
    20  employs,  authorizes or induces a child less than twelve years of age to
    21  engage in a sexual performance or being  a  parent,  legal  guardian  or
    22  custodian of such child, he or she consents to the participation by such
    23  child in a sexual performance.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01834-01-7
        S. 716                              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 or she
     8  employs,  authorizes  or  induces a child less than [seventeen] eighteen
     9  years of age to engage in a sexual performance or being a parent,  legal
    10  guardian  or  custodian of such child, he or she consents to the partic-
    11  ipation 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, he or she 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 or she produces, directs or  promotes  any  obscene  performance
    31  which  includes sexual conduct by a child less than [seventeen] eighteen
    32  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 or  she  know-
    40  ingly  has  in  his  or her possession or control, or knowingly accesses
    41  with intent to view,  any  obscene  performance  which  includes  sexual
    42  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, he or  she
    50  produces,  directs  or  promotes  any  performance which includes sexual
    51  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.
        S. 716                              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 or she
     3  produces, directs or promotes  any  performance  which  includes  sexual
     4  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 or she  knowingly  has  in
    12  his  or  her possession or control, or knowingly accesses with intent to
    13  view, any performance which includes sexual conduct by a child less than
    14  [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,
        S. 716                              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.