NY Penal Law § 263.11: Possessing an obscene sexual performance by a child

There are several offenses in the New York criminal code directed at punishing those involved with child pornography. Some offenses are related to creating child pornography, while other offenses are related to possessing child pornography. Under New York Penal Law § 263.11, you could be charged with possessing an obscene sexual performance by a child if you knowingly possess or control any obscene sexual performance by a child who is less than 16 years old. An "obscene sexual performance" is one that:

1. the average person would find that its predominant appeal is to the prurient interest in sex,
2. it depicts in a patently offensive manner, actual or simulated: sexual intercourse, criminal sexual act, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and
3. considered as a whole, it lacks serious literary, artistic, political, and scientific value.

Christopher bought a new computer. Wanting to get some cash from selling his old computer, Christopher listed it on an online auction site, and immediately sold it. The new owner of the computer, Craig, was in the process of reviewing the computer's hard drive to make sure everything was in working condition when he stumbled upon hundreds of images that depicted child performing sexual acts including sado-masochistic acts and bestiality. It appeared as if Christopher had attempted to erase the images, but did not realize that they were still on the computer. Craig contacted the police. The police arrested Christopher for possessing an obscene sexual performance by a child.

1. Use of a child in a sexual performance: New York Penal Law § 263.05
2. Promoting an obscene sexual performance by a child: New York Penal Law § 263.10
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

A defense to a charge of possessing an obscene sexual performance is that you had a good faith belief that the person in the material was not a child under the age of 16, but someone older. For this defense it is not required that the person actually be 16 years old or older. It is only necessary that you had a reasonable belief that the child was at least 16.

In addition, 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, usher, refreshment sand attendant, or other non-managerial or non-supervisory theatre job.

Possessing an obscene sexual performance by a child is a class E felony. If you are convicted your sentence may include up to 4 years in prison, a probation term of 10 years, and a fine. In addition, possessing an obscene sexual performance by a child is classified as a "registrable" offense. This means that if you are convicted you will be placed on sex offender registration list for at least 20 years.

A person is guilty of possessing an obscene sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any obscene performance which includes sexual conduct by a child less than sixteen years of age.

Because of the consequences of being convicted of possessing an obscene sexual performance by a child, it is critical that you have experienced representation. 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.