What is Disseminating Indecent Material to Minors in NYC?
In New York, there are 2 crimes related to Disseminating Indecent Material to Minors, Disseminating Indecent Material to Minors in the Second Degree and Disseminating Indecent Material to Minors in The First Degree. Under New York law, a minor is defined as any person who is less than 17 years old for Disseminating Indecent Material to Minors charges.
However, a 1997 federal court decision rendered one kind of Disseminating Indecent Material to Minors in the Second Degree charge as unconstitutional, the allegation of an electronic communication of indecent material with a minor. The remaining portions of Disseminating Indecent Material to Minors in the Second Degree are rarely charged. Disseminating Indecent Material to Minors in The First Degree involves an allegation of sending images, which is the law refers to a communication, that contains Nudity or Sexual Conduct, to a minor coupled with an invitation to a Sexual Act or a Sexual Performance.
The most common types of Disseminating Indecent Material to Minors charges in New York involve an allegation of Teen Sexting, either an adult sexting a person who is less than 17 years old or between 2 people who are both less than 17. Disseminating Indecent Material to Minors charges may overlap with both Possessing a Sexual Performance by a Child and Promoting a Sexual Performance by a Child.
Disseminating Indecent Material to Minors in the Second Degree is a class E felony. However, prison is not mandatory for a conviction a person is not required to register as a Sex Offender.
Disseminating Indecent Material to Minors in the First Degree is a class D sexually motivated felony with a maximum of 7 years in prison for a first felony offender. In addition, a conviction of Disseminating Indecent Material to Minors in the First Degree requires registration as a Sex Offender under the Sex Offenders Registration Act or SORA.
Disseminating Indecent Material to Minors Charges
- Disseminating Indecent Material to Minors in the Second Degree
- Disseminating Indecent Material to Minors in the First Degree
New York Disseminating Indecent Material to Minors Charges Explained
Disseminating Indecent Material to Minors charges were added to New York’s Penal Law in 1996. The goal of the law was to punish alleged pedophiles from contacting minors by computer. The laws were created in part in after, in 1994, a 51-year-old man in Seattle posing as a 13-year-old boy sent sexually explicit emails to a 14-year-old girl in New York. The man was convicted of Endangering the Welfare of a Child, which is a misdemeanor.
First Degree Disseminating Indecent Material to Minors charges have 2 prongs:
- Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sadomasochistic abuse, and which is harmful to minors, he or she intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor; and
- By means of such communication he importunes, invites or induces a minor to engage in sexual intercourse, oral sexual conduct or anal sexual conduct, or sexual contact with him, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his benefit
For both the Second Degree and First Degree crimes, the following terms have a specific meaning: Minor, Nudity and Simulated, Sexual Conduct, Sado-Masochistic Abuse and Harmful to Minors.
First, under Penal Law Section 235.20(1), Minor means any person less than 17 years old. This is known as New York’s age of consent under Penal Law Section 130.05(3)(a).
It is important to note a minor is defined as a person under 18 years old under federal law, 18 U.S. Code § 2256. So, Teen Sexting with a person who 17 years old, but not yet 18 years old would not violate New York State law but might violate federal law. However, the Teen Sexting or communication could violate New York State law if the images allegedly contained in the communication were of a person who is less than 17 years old, even if the parties who communicated were 17 or older.
Second, under Penal Law Section 235.20(2), Nudity means “the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.”
The definition of Nudity is extremely broad. It includes Actual or Simulated Nudity. Simulated Nudity is defined in Penal Law Section 235.00(1)(b) as a depiction of description “in a patently offensive manner, actual or simulated: sexual intercourse, criminal sexual act, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals.” Thus, under the definition of Simulated Nudity, an allegation of simulated sex or masturbation could lead to a Disseminating Indecent Material to Minors charge.
Third, under Penal Law Section 235.00(3) Sexual Conduct means “acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person’s clothed or unclothed.” Like Nudity, which includes allegations of a Simulated Nudity, the definition of Sexual Conduct is broad because it includes an allegation of sex or masturbation even if a person is clothed, i.e., not nude.
Fourth, Sado-Masochistic Abuse, Penal Law Section 235.00(5) means “flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.” Once again, the definition of Sado-Masochistic Abuse is broad because it includes an allegation of a person who is clothed as long as the other conditions are met.
Fifth, Harmful to Minors, under Penal Law Section 235.00(6) means that “quality of any description or representation, in whatever form, of Nudity, Sexual Conduct, Sexual Excitement, or Sado-Masochistic abuse, when it: considered as a whole, appeals to the prurient interest in sex of minors; is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and considered as a whole, lacks serious literary, artistic, political and scientific value for minors.” The definition of Harmful to Minors includes Sexual Exciting, which means “the condition of human male or female genitals when in a state of sexual stimulation or arousal.”
Defenses to New York Disseminating Indecent Material to Minors
In addition to innocence, there are several important defenses to a Disseminating Indecent Material to Minors charges. The most important defense is that a person tried to learn the age of the minor who received a communication with Sexual Content, but was unable to do so.
Under Penal Law Section 235.23(3), “In any prosecution for Disseminating Indecent Material to Minors in the Second Degree . . . or Disseminating Indecent Material to Minors in the First Degree, it shall be a defense that: The defendant made a reasonable effort to ascertain the true age of the minor and was unable to do so as a result of actions taken by the minor.” That means that if a person is charged with Disseminating Indecent Material to Minors, but that person tried to learn the true age of the person that they were communicating with, but was unable to so because of the minor.
This situation most commonly applies when the minor misrepresents their age on a dating application or via social media. Dating apps such as Tinder, Bumble, Grindr to name a few, all require that a user affirm that they are at least 18 years old, and the app displays the age of the person on their profile. However, dating apps are populated by people who say that they are at least 18, but they are in fact younger than 17. On the other hand, social media applications such as Instagram, TikTok and Facebook only require a person to be at least 13 years old to use the app.
Disseminating Indecent Material to Minors charges often involve communications via a dating app or on social media. A person facing a Disseminating Indecent Material to Minors charge has a strong defense when he or she makes an effort, which must be reasonable, to learn the true age of the complaining witness. Whether there is a reasonable effort depends on the specific facts of each case. Some examples may include repeated questions about a person’s age and school grade and asking for identification that contains a date of birth. Even if the identification turns out to be fake, a person should be able to rely on the representation of age, unless the identification seems obviously a fake.
Differences Between Disseminating Indecent Material to Minors Charges and Possessing / Promoting a Sexual Performance of a Child
There are similarities and differences between Disseminating Indecent Material to Minors Charges, one on hand, and charges of either Possessing a Sexual Performance of a Child or Promoting a Sexual Performance of a Child, on the other hand. The major similarity is the nature of the communication, which is a form of Sexual Conduct. All of the charges require of Sexual Conduct or simulated Sexual Conduct. Although, Disseminating Indecent Material charges has a broader definition of simulated conduct which includes Simulated Nudity.
The major difference among the charges is that Disseminating Indecent Material to Minors requires that the person receiving the communication containing Sexual Conduct, the complaining witness, to be less than 17 years old. The age of the person in the actual communication does not matter. Whereas, charges of Possessing a Sexual Performance of a Child or Promoting a Sexual Performance of a Child are concerned with the age of the person in the Sexual Performance. Possessing a Sexual Performance of a Child charges apply when a person in the alleged Sexual Performance is less than 16 years old. Promoting a Sexual Performance of a Child charges apply when a person in the alleged Sexual Performance is less than 17 years old.
Disseminating Indecent Material to Minors Diversion in New York
Allegations of Teen Sexting between children who are less than 17 years old have exploded with increasing access to smartphones. With smartphones come social media apps. Adventurers teens who are less than 18 years old even explore dating apps. Teenagers who sext each other are increasingly the targets of Disseminating Indecent Material to Minors charges.
New York created a Teen Sexting Diversion Program in 2012 when it enacted the Cybercrime Youth Rescue Act. Eligible teens who participate in Teen Sexting Diversion have the opportunity to have their charges dismissed and sealed, which is preferable to the possibility of a permanent felony record and possible prison. To be eligible for New York Teen Sexting Diversion the person charged must be less than 20 years old and the person charged and the person who receives the communication with Sexual Conduct cannot be more than 5 years apart in age. The age differences in the Teen Sexting Diversion Program are:
- If the person charged is 16, then the complaining witness must 11 or older
- If the person charged is 17, then the complaining witness must 12 or older
- If the person charged is 18, then the complaining witness must be 13 or older
- If the person charged is 19, then the complaining witness must be 14 or older
If a person is eligible for Teen Sexting Diversion and placed in the program, he or she is required to participate in an educational program. If the program is successfully completed then the criminal charges will be dismissed and sealed in 6 months.
Hiring a New York City Disseminating Indecent Material to Minors Lawyer
The criminal justice system is complex and can be intimidating and confusing, especially in New York. Hiring the right New York criminal defense attorney is crucial in achieving the best possible outcome of your Disseminating Indecent Material to Minors case.
The best New York City lawyer for Sex Crimes is experienced, aggressive and knowledgeable. A former Manhattan Assistant District attorney has the experience and knowledge of both prosecuting Sex Crimes on behalf of victims and complaining witnesses, and aggressively defending people against Sex Crimes charges in New York.
Contact The Law Firm of Andrew M. Stengel
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