What Does “Use of a Child in a Sexual Performance by a Child” Mean in New York City?
In Use of a Child in a Sexual Performance charges the important age is 17 years old. New York Use of a Child in a Sexual Performance is a class C felony. In addition, the charge is classified as a sexually motivated felony with a maximum prison sentence of 15 years followed by up to 15 years of post-release supervision.
A person may be charged with Use of a Child in a Sexual Performance, Penal Law Section 263.05, “if knowing the character and content thereof he employs, authorizes or induces a child less than 17 years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, he consents to the participation by such child in a sexual performance.”
There are 2 types of New York Use of a Child in a Sexual Performance charges. First, if a person employs, authorizes or induces a boy or girl who is less than 17 years old to engage in a Sexual Performance. The key phrase is “employs, authorizes or induces.”
Child in a Sexual Performance charges are similar to Promoting a Sexual Performance by a Child, which is charged when a person allegedly “produces, directs or promotes” a Sexual Performance by a person who is less than 17 years old. The difference is that the Use of a Child in a Sexual Performance is focused on luring a boy or girl who is less than 17 years old to engage in a sexual performance.
The second type Use of a Child in a Sexual Performance charges are if a parent, legal guardian or custodian of such child, consents to the participation of a boy or girl who is less than 17 years old in a Sexual Performance.
Affirmative Defense to New York Use of a Child in a Sexual Performance
Under New York Penal Law Section 263.20, there is an important affirmative defense to Use of a Child in a Sexual Performance. The law states “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 good faith reasonable belief defense most commonly applies when a person depicted in a Sexual Performance lies about their age. However, the affirmative defense would rarely apply when a person is charged as a parent, legal guardian or custodian of a boy of girl who is less than 17 years old in a Sexual Performance.
So, if a person charged with Use of a Child in a Sexual Performance and a boy or girl lied about their age, the good faith reasonable belief defense would apply. The belief that a person was over 17 years old must be in good faith and reasonable. The affirmative defense could be destroyed if there was evidence to the contrary about the age of the person in the Sexual Performance.
Finally, the affirmative defense places the burden on the person charged to prove the good faith reasonable belief about the other person’s age. The standard of proof is by a preponderance of the evidence, which is far lower than the required proof at trial. To prove a crime a prosecutor must show evidence that established guilty beyond a reasonable doubt.
Sentencing for New York Use of a Child in a Sexual Performance
Use of a Child in a Sexual Performance is a class C felony. The crime is also classified as a sexually motived and a conviction carries a mandatory minimum sentence of 3.5 years if a person does not have a felony conviction. For a first-time offender, the maximum sentence is 15 years in prison. A period of post-release supervision of between 5 and 15 years is required following release from prison.
Hiring a Use of a Child in a Sexual Performance Lawyer in New York City
The criminal justice system is complex and can be intimidating and confusing, especially in New York. Hiring the right defense attorney in NYC is crucial in achieving the best possible outcome of your Use of a Child in a Sexual Performance 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 in New York City.
Contact The Law Firm of Andrew M. Stengel
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