Possessing An Obscene Sexual Performance By A Child: NY Penal Law § 263.11

by ECL Writer
Possessing A Sexual Performance By A Child

The New York criminal code encompasses various offenses aimed at prosecuting individuals involved in child pornography. These offenses pertain to the creation and possession of child pornography. In accordance with New York Penal Law § 263.11, you may face charges for possessing an obscene sexual performance by a child if you intentionally hold or control any obscene sexual performance involving a child under the age of 16. An “obscene sexual performance” is defined as one that:

  • Primarily appeals to the prurient interest in sexual matters, according to the standards of an average person.
  • Depicts, in a blatantly offensive manner, real or simulated acts such as sexual intercourse, criminal sexual conduct, sexual bestiality, masturbation, sadism, masochism, excretion, or lewd exhibition of the genitals.
  • When assessed as a whole, lacks substantial literary, artistic, political, or scientific value.


Possession of an obscene sexual performance by a child constitutes a class E felony, carrying potential penalties including a maximum of four years of imprisonment, a probation period lasting up to a decade, and fines. Furthermore, it’s important to note that this offense is categorized as a “registrable” offense. This designation means that a conviction will result in mandatory inclusion on the sex offender registration list for a minimum of 20 years.


A valid defense against a charge of possessing an obscene sexual performance is the assertion that you held a sincere and good faith belief that the individual depicted in the material was not a child under the age of 16 but rather someone older. It’s important to emphasize that for this defense to apply, it is not necessary for the individual to actually be 16 years of age or older. What matters is that you had a reasonable belief that the person depicted was at least 16.

Furthermore, individuals whose employment incidentally exposes them to child pornography cannot be charged with child pornography solely based on this contact. Occupations that might incidentally involve contact with child pornography include roles such as librarian, motion picture projectionist, stage employee, usher, refreshment stand attendant, or any other non-managerial or non-supervisory position in a theater setting.

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

An individual commits the offense of possessing an obscene sexual performance by a child when, with knowledge of its nature and content, they intentionally possess or exercise control over any obscene performance that involves sexual conduct by a child under the age of sixteen.

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