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NY Penal Law § 263.15: Promoting a Sexual Performance by a Child

July 5, 2020 Federal Criminal Attorneys

There are numerous offenses in the New York criminal code that deal with child pornography. Some of the offenses are related to making child pornography, while other offenses are related to having child pornography in your possession. Pursuant to New York Penal Law § 263.15, you could come under prosecution for promoting a sexual performance by a child if you engage in the production, directing or promotion of a performance which includes sexual conduct involving a child who is younger than 17 years old. According to the statute, the term “performance” has a rather broad definition.  It encompasses a play, a movie, photography, dance show, or any other visual representation that is exhibited before an audience. The sexual conduct referred to can be actual sexual activity. Additionally, simulated sexual activity is also prohibited by this law. Sexual conduct refers to sexual intercourse, oral or anal sexual contact, masturbation, sado-masochistic behavior, bestiality, or lewd exhibition of genitals.

A Case Law Example

After a police officer downloaded over an online network a photo and a number of videos of sexual conduct that included children from Mr. Harold Petke’s computer, the police seized his computer. In a more thorough search through the contents of Mr. Petke’s computer the police discovered multiple additional, similar images. On the basis of this evidence, Mr. Petke was convicted of numerous crimes, including charges of promoting a sexual performance by a child. This case was the People v. Petke, 2015 NY Slip Op 1489 (N.Y. App. Div., 2015)

Offenses that are Related

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

Promoting an obscene sexual performance by a child: New York Penal Law § 263.10

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

Possessing a sexual performance by a child: New York Penal Law § 263.16

Possible Defenses

A plausible defense against a charge of promoting a sexual performance by a child is that if you can demonstrate that the person described as a child, in fact, was over the age of 17 at the time, or that you had good reason to believe that the person was over the age of 17.

The Sentence

Promoting a sexual performance by a child is categorized as a class D felony. If you are convicted, the judge could sentence you to up to 7 years in prison, a probation term of 10 years, and order you to pay a substantial fine. On top of that, promoting a sexual performance by a child is classified as a “registrable” offense under the New York Sex Offender Registration Act (SORA). What this means to you is that, if you are convicted, you will be placed on the sex offender registration list for a minimum of 20 years.

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