New York Child Pornography

Child pornography is a significant problem in New York and across the country. Although child pornography has existed for a long time, it has become an even greater problem over the last couple of decades with the growth in the use of the internet. Nowadays child pornography is easily accessible online. Anyone with a digital camera can produce child pornography and in minutes upload it to the internet. Local, state and federal law enforcement have dedicated significant resources to trying to apprehend those involved in child pornography. Thus, prosecutors will aggressively prosecute those who are accused of promoting, creating or possessing child pornography. In New York all child pornography crimes are felonies. If you are convicted, you could end up in prison for up to 25 years. In addition, you will have to register as a sex offender. Furthermore, if you are charged with a child pornography offense, the prosecutor will seek to charge you with additional related crimes as well. Therefore, if you have been charged with any child pornography crime, you should immediately contact an experienced New York Child Pornography Lawyer who will review the facts of your case and work closely with you to develop a strong defense to fight the charges.

Child Pornography Laws

The New York Penal Code does not use the term "child pornography" but instead uses the term "sexual performance by a child." The law prohibits using and promoting a sexual performance by a child as well as possessing a sexual performance by a child. Sexual performance is defined as sexual conduct by child who is less than 16 or 17 years old. Examples of sexual conduct includes actual or simulated sexual intercourse, oral sex, anal sex, bestiality, masturbation, sadomasochism, or lewd exhibition of the genitals. N.Y. Pen Law § 263.00. "Performance" means a play, motion picture, photography , dance or any other any other visual representation exhibited before an audience.

Using a Child in Pornography

Under the New York Penal Code it is a Class C felony to use a child who is under the age of 17 in a sexual performance. "Using" means being responsible for a child taking part in a sexual performance. This means that if you employ a child to participate in a sexual performance or in any way authorize a child to be part of a sexual performance, you will have committed the crime of use of a child in a sexual performance. Furthermore, you can also be charged with use of a child in a sexual performance if you are a parent, legal guardian, or custodian of a child and consents to your child being part of a sexual performance. N.Y. Pen Law § 263.05. Because the definition of performance includes photographing, you can be charged with use of a child in a sexual performance if you take a photo of a child performing sexual conduct.

In People v. Dalton, 2006 NY Slip Op 01410 (2006), the defendant forced her 3 minor children to have sexual intercourse with each other while she watched. She was charged with use of a child in a sexual performance, as well as several other sex crimes.

Promoting a Child in Pornography

It is also illegal to promote a sexual performance by a child. This means that you will be charged with promoting a sexual performance by a child if you know that a performance involves sexual conduct by a child who is under 17 year old, but you produce, direct, or promote the performance anyway. This is a Class D felony. N.Y. Pen Law § 263.15. If the child is under 16 years old and the sexual performance is obscene, then you will be charged with promoting an obscene sexual performance by a child. N.Y. Pen Law § 263.10. An obscene sexual performance is defined as one that involves an actual or simulated sex act, has no artistic, literary or scientific value and appeals to the prurient interest in sex based on community standards. N.Y. Pen Law § 235.00(1)

Possessing Child Pornography

If you knowingly possess material that contains a sexual performance by a child, you will have committed the crime of possessing a sexual performance by a child who is under 16 years old. The word "possess" has a broad meaning. If you have control over the content, or if you have accessed it with the intent to view it, then you could face a charge of possessing child pornography. It is a Class E felony. N.Y. Pen Law § 263.16. A similar charge is possessing an obscene sexual performance by a child . If the material you possess, control or access contains a sexual performance by a child that is obscene, then you will face this charge. It is also a Class E felony. N.Y. Pen Law § 263.11

Facilitating a sexual performance by a child with a controlled substance or alcohol.

The most serious child pornography offense is facilitating a sexual performance by a child with a controlled substance or alcohol. This charge is particularly shocking as it involves giving a child who is under 17 years old, without the child's knowledge, drugs or alcohol and then committing the child to simulating or performing a sex act. This crime is a Class B felony. N.Y. Pen Law § 263.30

If you are charged with a child pornography offense you may also face other charges. For example, if you commit a sex crime against a child and then photograph it or videotape it, then not only will you face a pornography charge, you may also face a child sexual assault charge. In People v. O'Neill, 2014 NY Slip Op 02628 (2014), the defendant had subjected the child victim to repeated acts of sexual abuse and photographed at least one of the acts. As a result he was charged with use of a child in a sexual performance and also course of sexual conduct against a child in the first degree.

Defenses to Child Pornography Charges

There are two statutory defenses that you may be able to use to defend child pornography charges: age and occupation.

Age. It is a defense to a charge of use of a child in a sexual performance, promoting an obscene sexual performance by a child, possessing an obscene sexual performance by a child, promoting a sexual performance by a child or promoting a sexual performance by a child that you had a good faith, reasonable belief that the child was at least 17 years old. This defense, however, is not valid if the charge is facilitating a sexual performance by a child with a controlled substance or alcohol. N.Y. Pen Law § 263.20(1)

In determining whether or not you reasonably believed that the child was 17 years old or older, the court will consider the appearance of the child, a photograph or video that shows the sexual performance of the child, witness testimony, expert medical testimony, as well as any other admissible evidence. N.Y. Pen Law § 263.25

Occupation. If you have a certain job that incidentally requires you to come in contact with child pornography, you have a valid defense to child pornography charges. For example, if you are a librarian, a motion picture projectionist, stage employee, spotlight operator, cashier, doorman, usher, candy stand attendant, porter, or other non-managerial or non-supervisory theatre job may require you to be around child pornography without you being directly involved in it . However, if you have one of these jobs and also have a financial interest in the product, or if you are responsible for promotion, presenting or directing the performance or acquiring material, the defense is not valid. N.Y. Pen Law § 263.20

Consequences of a Child Pornography Conviction

If you are convicted of a child pornography charge, you could end up in prison for up to 25 years. Each child pornography charge is a felony. The least severe charges are possessing a sexual performance by a child and possessing an obscene sexual performance by a child. Each is a Class E felony. The maximum sentence is up to 4 years in prison. Promoting a sexual performance by a child and promoting an obscene sexual performance by a child are both Class D felonies. The maximum sentence is up to 7 years in prison. If you are convicted of use of a child in a sexual performance, a Class C felony, you could be sent to prison for up to 15 years. The most serious child pornography charge is facilitating a sexual performance by a child with a controlled substance or alcohol. As a Class B felony, if you are convicted, you could be sentenced to up to 25 years in prison.

If you are convicted of any of the 6 child pornography offenses, you will have to register as a sex offender under the Sex Offender Registration Act (SORA). SORA requires sex offenders to register with a designated law enforcement agency upon conviction or upon release from prison. You must provide personal details such as your name, your aliases, your home address, a photograph and your email addresses and screen names. For sex offenders who present the highest risk of re-offending, this information will be made public. Anyone will be able to go to the online sex offender directory and find your name, home address, your photograph, details about your crime and other information about you. Under SORA you will have to register for either 20 years or for the rest of your life.

Being charged with child pornography is not only embarrassing, but it can have a permanently damaging affect on your life. You could end up on prison for several years. For this reason, if you are facing child pornography charges you should immediately consult an experienced New York Child Pornography Lawyer. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully representing clients in New York criminal courts who are accused of possessing, using and promoting child pornography, child molestation, statutory rape, child sexual assault, sex with a minor, public lewdness, indecent exposure, endangering the welfare of a child as well as other serious crimes. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of sex crimes in the following locations:

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