New York Child Pornography Laws

Overview of New York Child Pornography Laws

Article 263 of the New York Penal Code prohibits offenses stemming from a sexual performance by a child, including the production, promotion, distribution, and knowing possession of such content. The law defines "sexual performance" as any performance or part thereof which includes actual or simulated sexual conduct by a child less than 16 years old, or in some cases, less than 17 years old.

A person is guilty of the use of a child in a sexual performance when, knowing the character and content of the performance, he or she authorizes or induces a child less than 17 years old to engage in a sexual performance, or consents to the child's participation therein. Promoting a sexual performance by a child is a separate crime which requires that a person, knowing the character and content of a performance containing sexual conduct by a child less than 17 years old, produces, directs, or promotes the same.

Possession of a Sexual Performance by a Child 

New York also criminalizes the possession of a sexual performance by a child. A person is guilty of this offense when, knowing the character and content thereof, he or she knowingly possesses or controls any performance which includes sexual conduct by a child less than 16 years old. For purposes of the promotion and possession offenses, "performance" means any play, motion picture, photograph, dance, or other visual representation exhibited before an audience. 

Promotion and Possession of Obscene Sexual Performance by a Child 

New York also prohibits the promotion and possession of an obscene sexual performance by a child. Under Section 235 of the Penal Code material or performance meeting the following three requirements are considered "obscene":

  1. the average person, applying contemporary community standards, would find that its "predominant appeal is to the prurient interest in sex";
  2. it depicts actual or simulated sexual intercourse or other sexual conduct in a "patently offensive manner"; and 
  3. considered as a whole, it lacks serious literary, artistic, political, and scientific value. Penalties for promotion and possession offenses do not vary depending on the obscene or non-obscene nature of the material in question.

The child-pornography related crime most heavily punished by New York is that of "facilitating a sexual performance by a child with a controlled substance or alcohol." In order to be convicted for this offense, a person must

  1. administer an unlawful or prescribed controlled substance or alcohol to a person under 17 years old
  2. without the child's consent
  3. with the specific intent to commit an Article 263 felony against the child and
  4.  commit or attempt to commit such conduct against the child.

The following table contains more specific information about New York child pornography laws. See FindLaw's Crimes Against Children section for more information. 

Statute
Definition of "Obscene" A sexual performance will be deemed obscene if it has no artistic, political, literary or scientific value and appeals to the public's prurient interest in sex as defined by contemporary community standards.
Possible Defenses
  • Mistake of Age: Reasonable belief in good faith that child was over 16 (or in some cases 17) years of age, New York Penal Law § 263.25 (Proof of Age of Child)
  • Job Requirement: Non-managerial and non-supervisory employee with no financial interest (other than his or her employment) in the promotion, presentation, direction, or acquisition of a sexual performance by a child, N.Y. Pen Law § 263.20 (Sexual Performances by a Child, Affirmative Defenses)
Mandatory Sex Offender Registration?
Penalties
  • Possession of a sexual performance or obscene sexual performance by a child: Class E felony, up to four years prison, fine up to $5,000, and mandatory sex registration 
  • Facilitating a sexual performance by a child with a controlled substance or alcohol: Class B felony, three to 25 years prison, fine up to $5,000, mandatory sex registration 
Federal Child Pornography Charges  

Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.

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Next Step: Get a Free Case Review 

Being accused of a sex crime involving a minor is a very serious charge. Not only would a conviction impact your criminal history and require you to serve time in prison, there is also a social stigma surrounding child-related sex crimes. Learn more about the repercussions of a conviction or plea bargain by getting a free case review from a New York sex crimes attorney today.  

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