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NY Penal Law § 263.05: Use of a child in a sexual performance

Child pornography has been huge problem for years. It has become an even greater problem over the last couple of decades with the growth in the use of the internet. It is now easily accessible online. Those who are so inclined can easily use a digital camera, cell phone or tablet to produce child pornography and in minutes upload it to the internet. Because this is such a huge problem that leaves child victims physically, emotionally and psychologically injured law enforcement has dedicated significant resources to trying to apprehend those involved in child pornography.

The New York criminal code refers to pornography as a "sexual performance." There are several offenses related to the use of children in sexual performances. Under New York Penal Law § 263.05 you could be prosecuted for use of a child in a sexual performance if you hire or force someone who is under the age of 17 to participate in a sexual performance or in any way authorize a minor to be part of a sexual performance.

The term "performance" can refer to a play, movie, photography, dance, or any other visual representation exhibited before an audience. The sexual conduct involved can be actual sexual activity or simulated sexual activity. Sexual conduct refers to sexual intercourse, oral or anal sexual contact, masturbation, bestiality, sado-masochistic behavior, or lewd exhibition of genitals.


When developing film for Dennis Burke, a photography laboratory technician found child pornographic images. The technician notified police and pursuant to a warrant the police searched Burke's possessions for material related to child pornography. The officers recovered obscene snapshots and videotapes of children, and correspondence with children. Burke was charged with use of a child in a sexual performance as well as other related offenses. People v. Burke (N.Y. App. Div., 2001).

Related Offenses
  1. Promoting an obscene sexual performance by a child: New York Penal Law § 263.10
  2. Possessing an obscene sexual performance by a child: New York Penal Law § 263.11
  3. Promoting a sexual performance by a child: New York Penal Law § 263.15
  4. Possessing a sexual performance by a child: New York Penal Law § 263.16

If your job incidentally requires you to come in contact with child pornography, you cannot be charged with child pornography based on that contact. Examples of jobs that might cause you to incidentally come in contact with child pornography include 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


Use of a child in a sexual performance is a class C felony. If you are convicted your sentence may include up to 15 years in prison, a probation term of 10 years, and a substantial fine. In addition, you will be required to register as a sex offender under the New York Sex Offender Registration Act.

New York Penal Law § 263.05: Use of a child in a sexual performance

A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than seventeen 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.

Contact the Law Offices of Stephen Bilkis & Associates

Being charged with a crime related to child pornography can have a permanent damaging impact on your life. If convicted you could end up incarcerated for several years. In addition, you will be required be a registered sex offender for at least 20 years. For this reason if you are facing child pornography charges you should immediately consult with someone with experience. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with child pornography as well as sexual assault, child endangerment, harassment, menacing, and reckless endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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