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NY Penal Law § 263.16: Possessing 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. Two of these offenses are related to having child pornography in your possession.  You could be prosecuted under New York Penal Law § 263.16 for possessing a sexual performance by a child when you consciously possess or control any performance which displays sexual conduct by a child who is younger than 16 years old.

In the criminal code, 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.

Case Law Example

The computer of Mr. Michael Montague’s was seized by the Town of Colonie Police Department (TCPD) in response to a report made by a computer repair technician.  The technician reportedly found articles of child pornography on the computer’s hard drive. The police procured a search warrant to analyze the contents of the computer hard drive.  The search helped them to confirm what the technician had reported.  As a result of this, Mr. Montague was arrested and charged with 26 counts of possessing a sexual performance by a child. This case was the People v. Montague, 2015 NY Slip Op 5721 (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

Promoting a sexual performance by a child: New York Penal Law § 263.15

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 16 at the time, or that you had good reason to believe that the person was over the age of 16.

In addition, if in the course of your work at your job incidentally makes it necessary for you to come in contact with child pornography, you cannot be charged with a child pornography crime based on that contact. Some examples of jobs that might cause you to incidentally come into contact with child pornography include librarian, stage employee,  a motion picture projectionist,spotlight operator, usher, ticket cashier, concession stand attendant at a theater, or other non-managerial or non-supervisory theater jobs.

The Sentence

Possessing a sexual performance by a child is categorized as a class E felony. If you are convicted of this crime, your sentence could include up to 4 years in prison, a probation term of 10 years, and the payment of a substantial fine. On top of that, possessing 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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