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What Does “Possessing a Sexual Performance By a Child” Mean in New York City?

Possessing a Sexual Performance by a Child Lawyer in NYCIn New York, the crucial age for Possessing a Sexual Performance By a Child and Possessing a Sexual Performance By a Child is the age of 16. Both charges only apply when a performance allegedly containing Sexual Conduct depicts a person who is less than 16 years old. The charges do not apply if a person is 16 years old. However, under certain circumstances, a person could be charged with Promoting a Sexual Performance By a Child if the person depicted in Sexual Conduct is less than 17 years old.

In New York, a Possessing a Sexual Performance By a Child charge, Penal Law Section 263.16, is a class E felony. Possessing an Obscene Sexual Performance By a Child charge, Penal Law Section 263.11, is also a class E felony. The maximum sentence for both crimes is 1 11/3 to 4 years in prison if a person does not have a prior felony conviction. In addition, a conviction of either Possessing a Sexual Performance by a Child or Possessing an Obscene Sexual Performance By a Child requires a person to register as a Sex Offender under SORA, the Sex Offenders Registration Act.

A person may be charged with Possessing a Sexual Performance By a Child “when, knowing the character and content thereof, he knowingly has in his possession or control, or knowingly accesses with intent to view, any performance which includes sexual conduct by a child less than 16 years of age.”

Retaining an experienced Sexual Performance by a Child lawyer in NYC is crucial in achieving a favorable outcome. Contact us today.

What Does “Possessing an Obscene Sexual Performance By a Child” Mean in New York?

A person may be charged with Possessing an Obscene Sexual Performance By a Child “when, knowing the character and content thereof, he knowingly has in his possession or control, or knowingly accesses with intent to view, any obscene performance which includes sexual conduct by a child less than 16 years of age.”

The two laws are essentially the same except for the word obscene. Courts have held that any person who commits the crime of Possessing a Sexual Performance By a Child also commits the crime of Possessing an Obscene Sexual Performance By a Child. Because the two crimes are punished as a class E felony, with identical consequences, Possessing a Sexual Performance By a Child is often the crime that is charged.

Defenses to Possessing a Sexual Performance By a Child

There are important defenses and affirmative defenses to charges of Possessing a Sexual Performance By a Child. The defenses to the charges completely negate the crime and the affirmative defenses place the burden on a person charged to prove them.

In New York, under both Possessing a Sexual Performance By a Child charges and Possessing an Obscene Sexual Performance By a Child, the law requires that a person either knowingly have in their possession or control or knowingly access with intent to view the charged performance usually a photograph or movie clip. Thus, it is a defense that a person didn’t knowingly have possession or control or knowing access to the performance in question.

It is also a defense that the performance in question did not include Sexual Conduct. Although the term Sexual Conduct has a broad definition that includes “actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sadomasochistic abuse or lewd exhibition of the genitals.”

Affirmative Defenses to Possessing a Sexual Performance By a Child

The most important defense to Possessing a Sexual Performance By a Child or Possessing an Obscene Sexual Performance By a Child involve a belief on the part of the person charged about the age of the person who may have in fact been less than 16 years old. Under Penal Law Section 263.20, “it shall be an affirmative defense that the defendant in good faith reasonably believed the person appearing in the performance was . . . 16 years of age or over.”

The good faith reasonable belief of a person’s age defense most commonly applies when a person charged with Possessing a Sexual Performance By a Child is misled about a person’s age. This could come in the form of a false representation of age. However, the false representation that a person is at least 16 years old could be negated by other information. For example, in most circumstances, a boy or girl who is 16 years old would be in at least the 10th grade of high school. If a person learns that a person depicted in a performance is not yet in high school, that could negate a false representation of a person’s age as more than 16 years old.

As an affirmative defense, the burden is on a person charged to prove the defense by a preponderance of the evidence. This stands in contrast to the burden of proof on a prosecutor to prove a crime and all of its elements, including the age of a person in a performance, beyond a reasonable doubt.

The second affirmative defense in Possessing a Sexual Performance By a Child charges is rarely applied and it applies to certain trades: “it is an affirmative defense that the person so charged was a librarian engaged in the normal course of his employment, a motion picture projectionist, stage employee or spotlight operator, cashier, doorman, usher, candy stand attendant, porter or in any other non-managerial or non-supervisory capacity in a motion picture theatre; provided he has no financial interest, other than his employment, which employment does not encompass compensation based upon any proportion of the gross receipts, in the promotion of a sexual performance for sale, rental or exhibition or in the promotion, presentation or direction of any sexual performance, or is in any way responsible for acquiring such material for sale, rental or exhibition.”

Sentencing for Possessing a Sexual Performance By a Child

Sexual Performance by a Child Lawyer in NYCAs noted above New York Possessing a Sexual Performance By a Child charges and Possessing an Obscene Sexual Performance By a Child charges are a class E felony. If a person does not have a prior felony conviction, then the minimum prison sentence is 1 to 3 years and the maximum is 1 1/3 to 4 years. However, there are many non-prison sentencing options and even lesser prison sentences.

No matter the sentence, a conviction of either crime requires registration as a Sex Offender. The one exception to these sentences and the registration requirement under SORA is New York’s Teen Sexting Diversion Program when the parties meet certain circumstances.

Two favorable sentences that don’t involve prison are a 3-year conditional discharge and probation for 10 years. For a sentence of a conditional discharge the Court must make a finding that neither prison nor probation is a just result when considering the history and the character of the person who was convicted. Two additional sentences that involve jail are a definite sentence of 1 year, with a similar finding by the Court that a longer sentence would be too harsh, and a split sentence of up to 6 months in jail and either 10 years on probation or 3 years of a conditional discharge.

Finally, if both the person charged and the person in the performance are both under the age of 20, then a person may be eligible for New York’s Teen Sexting Diversion Program. The one additional requirement is that the 2 people, the person charged and the person depicted in the performance be less than 5 years apart in age. A person who successfully completes the Teen Sexting Diversion Program has the Possessing a Sexual Performance By a Child charge dismissed and sealed after 6 months.

If You’ve Been Charged with Possessing a Sexual Performance or If You Are Under Investigation, Contact Us Now for a Confidential ConsultationContact Us

Hiring a New York City Possessing a Sexual Performance By a Child Lawyer

The criminal justice system is complex and can be intimidating and confusing, especially in New York. Hiring the right Manhattan criminal defense attorney is crucial in achieving the best possible outcome of your Possessing a Sexual Performance of a Child case.

The best New York City lawyer for Sex Crimes is experienced, aggressive and knowledgeable. As a former prosecutor in New York, I have the experience and knowledge from 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

Contact us via the live chat below, through our contact form here, or call us at  (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.

Our offices are located at 11 Broadway, Suite 715, New York, NY 10004, and we handle cases throughout New York City, Nassau, Westchester and the surrounding counties.