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. 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.
New York also prohibits the promotion and possession of an obscene sexual performance by a child. Section 235 of the Penal Code defines material or performance meeting the following three requirements as "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.
Defenses to Child Pornography Charges
- Reasonable belief in good faith that child was over 16 (or in some cases 17) years of age
- 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
Penalties and Sentences
Child pornography offenses range in classification from class E to class B felonies. Conviction of the possession of a sexual performance or obscene sexual performance by a child, both class E felonies, will yield a maximum prison sentence of 3 to 4 years. A person convicted of facilitating a sexual performance by a child with a controlled substance or alcohol, a class B felony, must serve between 3 and 25 years in prison. All felonies unrelated to drug offenses are subject to a fine which is the greater of $5,000 or double the defendant's gain from commission of the crime.
New York Child Pornography Statute
Sexual Performance by a Child
Penal Code Article 263
Note: State laws are constantly changing -- please contact an attorney or conduct your own legal research to verify the state law(s) you are researching.