What Does “Promoting a Sexual Performance By a Child” Mean in New York City?
The age to know for Promoting a Sexual Performance By a Child and Promoting a Sexual Performance By a Child is 17. The two felony charges only apply when a person allegedly promotes Sexual Conduct depicts a person who is less than 17 years old. The charges do not apply if a person is at least 17 years old. If the person in question is less than 16 years old, a person could be charged with Possessing a Sexual Performance By a Child.
Both Promoting a Sexual Performance By a Child, Penal Law Section 263.15, and Promoting an Obscene Sexual Performance By a Child, Penal Law Section 263.10, are a class D sexually motivated felony with a maximum sentence of 7 years, for a first felony conviction, following by between 3 and 10 years of post-release supervision. A person is also required to register as a Sex Offender under the Sex Offenders Registration Act for a conviction of either Promoting a Sexual Promoting By a Child or Possessing an Obscene Sexual Performance By a Child.
A person may be charged with Promoting a Sexual Performance By a Child “when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct By a child less than 17 years of age.”
Retaining an experienced Sexual Performance by a Child attorney in NYC is crucial in achieving a favorable outcome. Contact us today.
What Does “Promoting an Obscene Sexual Performance By a Child” Mean in New York?
A person may be charged with Promoting an Obscene Performance By a Child “when, knowing the character and content thereof, he produces, directs or promotes any obscene performance which includes sexual conduct By a child less than 17 years of age.”
Except for the word obscene the two crimes are essentially the same. If a person is accused of Promoting an Obscene Performance By a Child it is the same as Promoting a Sexual Performance By a Child. Because both crimes are punished as a class D sexually motivated felony, often the only charge will be Promoting a Sexual Performance By a Child.
“Promoting,” According to New York Penal Law
In the dictionary promote tends to mean selling a product through advertising or publicity. The legal definition or Promoting in Promoting a Sexual Performance of a Child means far more than advertising a product for sale. 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.” If that definition seems broad, the wording of Sexual Performance of a Child charges is even broader. The law includes the phrase “produces, directs or promotes.”
When Promoting a Sexual Performance of a Child laws were enacted in 1977 the goal in part was to stop production of films and photographs containing Sexual Conduct of people under the age of 17. With the proliferation of technology, the terms of the statute have taken on different applications. The terms deliver, transfer, publish distribute, circulate or offer or agree to do the same are the more applicable today than in the 1970s.
Technology has given new meaning the terms produces, directs or promotes. Sending a photo or video of a Sexual Performance via text message or social media direct message, or even directing somebody to create such a photo or video could lead to charges of Promoting a Sexual Performance By a Child if the person the message is directed to is less than 17 years old. In addition, there could be a federal crime if the person is 17 years old, but has not yet turned 18.
Defenses to Promoting a Sexual Performance By a Child
There is one absolute defense and another affirmative defense that are important to fighting Promoting a Sexual Performance By a Child charges. First, the law requires that a person know the character and content of the alleged Sexual Performance that is Promoted. It is an absolute defense that a person did not know.
In addition, there is an affirmative defense in the law if a person has a good faith reasonable belief that the age of a person in the Sexual Performance was at least 17 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 . . . 17 years of age or over.”
The affirmative defense usually applies when a person lies or misrepresents his or her age to a person who is charged with Promoting a Sexual Performance By a Child. However, the defense has limits because of belief must be both in good faith and reasonable. Where are person lies about their age claiming that he or she is 17 or 18 years old or even older, the affirmative defense will be less persuasive if there was evidence to the contrary about the claimed age. As an affirmative defense, Penal Law Section 263.20 places the burden on the person charged to prove the defense. The burden is the lower standard by a preponderance of the evidence. This low standard is in contrast to the high standard of the requirement of a prosecutor to prove a crime beyond a reasonable doubt.
Sentencing for Promoting a Sexual Performance By a Child in New York
In New York, Promoting a Sexual Performance By a Child charges and Promoting a Sexual Performance By a Child charges are a class D felony. In addition, both crimes are categorized as a sexually motivated felony which limits the sentences that can be imposed to a determinate or definite sentence in prison or a sentence of probation. The one exception to these sentences is the New York’s Teen Sexting Diversion Program, if both the person charged and the person depicted in the alleged performance are both less than 20 years old.
First, the minimum determinate sentence is 2 years and the maximum is 7 years in prison. A term of post-release supervision of between 3 and 10 years is also required. Second, a Judge can impose a definite sentence of up to 1 year in prison upon a finding that a longer prison term would be unduly harsh because of the nature of the allegations and the history and character of the person who was convicted. Third, a Judge can impose a sentence of 10 years if jail is not necessary to protect the public and the person who is convicted needs treatment that can be overseen by the Probation Department.
Finally, New York’s Teen Sexting Diversion Program has 2 requirements. First, the person charged and the boy or girl depicted in the alleged performance must both be less than 20 years old. Second, both parties must be within 5 years of each other. If either party is older than 20 years old or the 2 people are at least 5 years apart, then a person is not eligible for New York’s Teen Sexting Diversion Program. If a person is sentenced to Teen Sexting Diversion, then the case is dismissed and sealed after 6 months and upon completion of an education program.
Hiring a New York Promoting 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 criminal defense attorney in NYC is crucial in achieving the best possible outcome of your Promoting 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
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