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Sexual Performance By a Child in New York City, Explained

Child Sexual Performance Lawyer NYCIn New York, there are 6 different crimes related to either Possessing a Sexual Performance By a Child or Promoting a Sexual Performance By a Child. All of the 6 different crimes are classified as a felony, from class E to class B. A conviction of any of the 6 Possessing and Promoting Sexual Performance By a Child charges requires registration as a Sex Offender under the Sex Offender Registration Act or SORA.

There are 2 different minimum age floors for Possessing and Promoting Sexual Performance By a Child Lawyer. First, Possession of a Sexual Performance applies to boys and girls who are less than 16 years old. Second, Prompting a Sexual Performance applies to boys and girls who are less than 17 years old.

The two crimes of Possessing and Promoting are meant to punish 2 different allegations. First, Possession applies to allegations of knowing possession. Second, Promotion applies to the procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.

Sexual Performance By a Child Charges

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Child Age in Possessing and Promoting Sexual Performance Charges

Under New York State Law, there are two different ages for children depending on Possessing and Promoting Sexual Performance Charges charge, either 16 or 17. The particular age depends on the nature of the alleged act. Under New York law, generally speaking, it is illegal to possess sexual images by a child who is less than 16 years old. Generally speaking, it is illegal to promote sexual images by a child who is less than 17 years old.

The ages in New York Possessing and Promoting Sexual Performance By a Child Charges are sperate from the age of consent in New York. Under New York law, a person under the age of 17 cannot consent to Sexual Contact such as intercourse. Thus, the minimum age of consent for sex is 17 in New York.

Proof of Child Age in Possessing and Promoting Sexual Performance Charges

The proof necessary to establish a charge of Possessing and Promoting Sexual Performance By a Child Charges is a birth certificate or identification. But what if the age of a child cannot be determined by a document? In such cases, a person may be facing charges without an alleged complaining witness.

Under Penal Law Section 263.25, proof of age of a child can be established in 4 different ways:

  • Personal inspection of the child;
  • Inspection of a photograph or motion picture which constituted the sexual performance;
  • Oral testimony by a witness to the sexual performance as to the age of the child based upon the child’s appearance; and
  • Expert medical testimony based upon the appearance of the child in the sexual performance

Finally, the section of law has a catchall provision that allows “any other method authorized by any applicable provision of law or by the rules of evidence at common law.”

What is Sexual Conduct By a Child in Possessing and Promoting Sexual Performance Charges

In New York, Sexual Conduct has a broad definition. When Possessing and Promoting Sexual Performance By a Child is charged, Sexual Conduct is defined under Penal Law Section 263.00(3) and “means actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sadomasochistic abuse or lewd exhibition of the genitals.”

Two of the broad provisions in the definition are “actual or simulated sexual intercourse” or “lewd exhibition of the genitals.” First, simulated is defined in the law as “the explicit depiction of any of the [Sexual Conduct] which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals or buttocks. That means that a person could be face

Possessing and Promoting Sexual Performance By a Child charges for simulated intercourse or oral or anal sexual conduct if it is coupled with nudity of the breasts, genitals or buttocks. Second, the term “lewd exhibition of the genitals” is not defined in New York law. Rather, New York courts look to federal law and a 1986 case called United States v. Dost.

In United States v. Dost, the Court identified factors to determine if photographs of two girls who were less than 16 years constituted sexually explicit conduct under federal law. The factors were created to distinguish between an innocent family photo or an artistic depiction of a nude child and the victimization of that child in the creation of alleged child pornography. The 6 factors, which are used to determine if there is “lewd exhibition of the genitals” in New York are if:

  • The focal point of the visual depiction is on the child’s genitals;
  • The setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;
  • The child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
  • The child is fully or partially clothed, or nude;
  • The visual depiction suggests coyness or a willingness to engage in sexual activity; and
  • The visual depiction is intended or designed to elicit a sexual response in the viewer

Possessing vs. Promoting Sexual Performance By a Child Charges

Sexual Performance of a Child Attorney in NYCMost of the Sexual Performance By a Child Charges charge either Possession or Promoting. The two mean very different things.

Possessing means that a person allegedly knowingly has in his or her possession or control or knowingly accesses with an intent to view the sexual performance. Within the definition of Possessing, knowingly means that a person is aware of the alleged conduct. It is a defense to the charge of Possessing Sexual Performance By a Child that a person was not aware of the alleged possession.

In addition, Possessing means that a person allegedly had actual possession or control or had access to a sexual performance with an intent to view it. Actual possession or control somewhat overlap.

For example, if an image of alleged a child sexual performance is allegedly on a person’s smartphone or a desktop computer, then a person would likely be accused of both actual possession of control. However, the situation becomes somewhat murkier if the imager is found on a desktop computer where several people have access.

In 2012, New York Sexual Performance By a Child charges were amended to add “knowingly accesses with an intent to view the sexual performance” to address images that are cached in the memory of a computer. Thus, a person could be charged for alleged Possession of a Sexual Performance By a Child for viewing an image in the past if the image is cached as opposed to a saved on a drive.

Allegations of Promoting a Sexual Performance By a Child differs from mere possession in several ways, Under Penal Law Section 263.00(5), promote means “to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.” The original law was passed in 1977 decades before the invention of the Internet.

Back then, the definition of promote focused on the distribution of films and photographs, whether bought or sold, through the U.S. mail. Today, in the post-information age, the various way promoting could be charged are nearly endless and include sending or receiving a file through text message or instant message, and storage on cloud drives and hard drives.

Sexual Performance vs. Obscene Sexual Performance

Most of the Possessing and Promoting Sexual Performance By a Child charges in New York are disguised by a Sexual Performance or an Obscene Sexual Performance. Practically speaking there is no difference between the 2 charges for 2 reasons. First, the definitions between the Sexual Performance or an Obscene Sexual Performance are essentially the same. Second, the different crimes are punished at the same felony level.

Sexual Performance is defined in New York Penal Law Section 263.00(1) as “any performance or part thereof which, for purposes of [Possessing a Sexual Performance by a Child], includes sexual conduct by a child less than 16 years of age or, for purposes of [Use of a Child in a Sexual Performance] or [Promoting a Sexual Performance by a Child], includes sexual conduct by a child less than 17 years of age.”

Obscene Sexual Performance is defined in New York Penal Law Section 263.00(2) as “any performance which, for purposes of [Possessing an Obscene Sexual Performance by a Child], includes sexual conduct by a child less than 16 years of age or, for purposes of [Promoting an Obscene Sexual Performance by a Child], includes sexual conduct by a child less than 17 years of age, in any material which is obscene, as [defined in Penal Law Section 235.00(1)].”

Next, New York Promoting a Sexual Performance By a Child, Penal Law Section 263.15, is punished as a class D felony. Promoting an Obscene Sexual Performance By a Child, Penal Law Section 263.10, is also punished as a class D felony. The same is true for possession charges. Possessing a Sexual Performance By a Child, Penal Law Section 263.15, is punished as a class E felony. Possessing an Obscene Sexual Performance By a Child, Penal Law Section 263.11 is also punished as a class E felony.

Federal Law vs. New York State Sexual Performance By a Child Charges

New York and the United States have child pornography laws that overlap. There are two major differences between state and federal law in this area.

First, under federal law, 18 U.S. Code § 2256, a minor (or child) is defined as any person under 18 years old. As explained above, New York law criminalizes sexual performances of boys or girls who are either 16 or 17, depending on the allegation. Thus, if there are allegations of Possessing and Promoting Sexual Performance By a Child Charges a person could be charged under New York or federal law.

Second, the potential punishments for Possessing and Promoting Sexual Performance By a Child tend to be harsher under federal law as compared to New York State law. For example, the federal crime of Possession of Child Pornography under 18 U.S.C. § 2252 carries a maximum sentence of 10 years in prison for a first-time offender. On the other hand, under New York Possessing a Sexual Performance By a Child, Penal Law 263.16, the maximum sentence is 1 1/3 to 4 years, if a person does not have a prior felony conviction.

In addition, the federal crime of Distribution of Child Pornography under 18 U.S.C. § 2252A has a mandatory minimum of 5 years and the maximum is 20 years in prison for a first offense. Under New York Promoting a Sexual Performance By a Child, Penal Law 263.15, the maximum sentence is 7 years in prison, if a person does not have a prior felony conviction.

Whether a person is charged under New York or federal law is a question for law enforcement. If a person does have to face a Possessing or Promoting Sexual Performance By a Child Charge it is obviously preferable to fight the charge in state court due to the lesser potential punishments.

New York Teen Sexual Performance By a Child Diversion

The intent of Sexual Performance By a Child laws in New York and elsewhere are to protect the exploitation of children as sexual subjects. Since the proliferation of smartphones and social media applications, a growing number of people charged with Sexual Performance By a Child are children themselves, using text messaging or a social media application. Thus, teenagers who were sexting one another were charged in increasing numbers with felony Sexual Performance By a Child charges and facing possible jail time and registration under the Sex Offender Registration Act as a Sex Offender.

In 2012, New York addressed this issue by passing the Cybercrime Youth Rescue Act by creating a Teen Sexting Diversion Program. Under the law, a teenager may participate in an educational program, instead of a criminal prosecution, when he or she is charged with a sending or receiving any image that depicts nudity or obscenity under Possessing and