The New York criminal code encompasses multiple offenses related to child pornography, with two offenses specifically concerning the possession of child pornography. According to New York Penal Law § 263.16, you may face prosecution for possessing a sexual performance by a child when you intentionally possess or exercise control over any performance that includes sexual conduct by a child under the age of 16.
The term “performance” holds a wide-ranging definition, encompassing plays, films, photographs, dances, or any other visual representation presented before an audience. Sexual conduct encompasses acts like sexual intercourse, oral or anal sexual contact, masturbation, bestiality, sado-masochistic behavior, or lewd exhibition of genitals. This sexual conduct can involve either actual or simulated acts.
The possession of a sexual performance by a child is categorized as a class E felony. A conviction for this offense may result in a sentence of up to 4 years in prison, a probationary period lasting 10 years, and significant fines. It’s important to note that possessing a sexual performance by a child is designated as a “registrable” offense under the New York Sex Offender Registration Act. As a consequence, if convicted, you will be mandated to be listed on the sex offender registration for a minimum of 20 years.
A valid defense against a charge of promoting a sexual performance by a child is that the person was, in fact, at least 16 years old, or that you had a reasonable belief that the child was at least 16 years old. Additionally, if your employment incidentally requires you to encounter child pornography, you cannot be charged with child pornography solely based on that contact. Examples of jobs that might incidentally involve contact with child pornography include roles such as librarian, motion picture projectionist, stage employee, spotlight operator, ticket cashier, usher, concession stand attendant, or any other non-managerial or non-supervisory theater position.
New York Penal Law § 263.16: Possessing a sexual performance by a child
An individual is considered to have committed the offense of possessing a sexual performance by a child when, with full knowledge of its nature and content, they intentionally hold or exercise control over any performance that involves sexual conduct by a child under the age of sixteen.