Possessing or Promoting Sexual Performance by a Child in New York
What places you at risk?
It is safe to say we all have those embarrassing pictures, our younger selves in a bathtub or doing something ridiculous. Parents shared these images for laughs, embarrassment, and in good spirits. However, where is the line drawn for the funny pictures your parents have over possessing pictures of other children that are considered inappropriate and illegal? The line drawn relates to the purpose of the images and the contents.
In New York, Article 263 defines the law that associates with the use of children in sexual performances. A more common name, child pornography, is detailed within this segment of the law. This law sets forth the parameters that constitute sexual performance as well, to encompass any act that involves child pornography.
It clearly states that sexual intercourse of any type, lewd images of genitals, oral, anal, masturbation, or sexual bestiality in the definition. It is focused on participants under the age of 16. Performance is defined as a picture, video, or any means of visual representation.
What is the purpose of these laws?
These laws are designed to protect children, and discourage the possession and production of sexual conduct of children. The law specifically states that the possession, distribution, sales, lend, mail, or deliver the content.
These laws do omit court officials and law enforcement that are in possession while investigating for obvious purposes. This law also clearly states that parents cannot consent for the minor to participate.
In the state of New York, Article 263 sets out the definitions, situations, and charges associated with these crimes. It includes the use of a child, promoting, possessing, or facilitating any sexual performance. It also includes a specific statute on the activity with alcohol or controlled substances present as well.
Each count is considered a felony and increases in severity from possessing the content to creating it and the maximum being performing with the use of alcohol or illicit substances. All acts in this statue are considered felonies in New York.
- 263.05 prohibits the use of a child in sexual performance of any kind. The child can engage in the activity, be hired for, or included in any type of performance as previously described.
- The legal guardian or parent cannot consent for the child to participate either.
- These acts constitute a class C felony.
- 263.10 states that any person who creates content involving a sexual act and any child less than seventeen years old. This includes obscene sexual performances.
- Obscenity is defined as a separate statue meaning that a general member of the community would consider it relating to sex. It also includes obviously offensive material such as all forms of sexual intercourse previously stated, sadism, masochism, and excretion or lewd showing of the genitals. Finally, it would be considered obscene by lacking in any means of value such as artistic or scientific. Any behavior that meets these standards with a minor can be charged with this offense.
- This charge relates ONLY to the obscene material. There is a separate charge for sexual acts involving a child.
- This is considered a class D felony.
- 263.11 makes it illegal to own or have in your possession any material that involves a child performing an obscene sexual performance. A child is a minor under the age of 16.
- This constitutes a class E felony.
- 263.15 gives the standards for promoting the sexual performance of a child. This includes the creation of the content.
- This is considered a class D felony.
- 263.16 states that a person cannot own material that contains the sexual performance of a child- a minor under the age of 16. This differs from the previous offense in that is explicit states a sexual performance. This must be a form of sexual performance that was defined.
- The previous charge addressed obscene material whereas this charge addresses the next step
- This is considered a class E felony
- 263.30 includes the performance of a sexual act while also using a controlled substance or alcohol that is given to the child.
Each of the statutes sets out the parameters that must be met to be charged. These laws are designed to protect our youth from abuse and misuse. Throughout this law, illegal activity is clearly listed out to alleviate confusion.
In the US Code, there is a federal statute in which the states base their laws on. 18 USC section 2251 covers the sexual exploitation of a child. It states that any person who participates produces or creation of sexual content with the use of a child. The law prohibits the production of the content, sales, and transport of it as well.
It is very detailed in the various methods of commerce and production to catch as many perpetrators as possible. The United States Code even has a section stating that any parents that allow their children to participate, help to facilitate, distribute, or have any form of material can be charged.
US Code and the New York Law wording
One key difference in the US Code and the New York law wording is that the US code involves foreign entities. This is to prevent international use of the content and to help prevent illegal related activities such as trafficking, kidnapping, abduction, and worldwide distribution of the content.
The final clause of the code states out a federal level of punishments as maximums. Please note that these can be varied based on the state and be less than these but cannot exceed the terms. The US Code states that initial offenders without a history of convictions shall receive a prison sentence of at least 15 years but not over 30 years.
This can be less depending on the state you live in, and New York penalties do vary from these. These are meant to serve as a guideline for state legislation and for federal cases. In trials with repeat offenders, they can be punished with death or more than 30 years in prison.
In regards to these charges, there are others that can be charged with or without these. Common charges can include reckless endangerment, child abuse, statutory rape, and trafficking. Reckless endangerment entails placing a child in a position where they are faced with a high risk of harm, be it physical, emotional, or mentally.
The danger they are placed in is done so willingly and knowingly. This charge is considered a felony and has varying degrees. It goes without saying, but allowing a child or including them in the production, distribution, or creation of child pornography is considered child abuse.
Placing your child in a situation of questionable circumstances that causes them harm or duress would count as abuse/neglect. This serious charge can result in a loss of rights, criminal penalties, and even the removal of the children from your home.
What is statutory rape?
Statutory rape is another consideration with the use of children in a sexual performance. The age of consent in the state of New York is 17 years of age. This means that any child under the age of 17, cannot consent to sexual activity. They are considered minors by law and are not able to allow this to happen to themselves. Even in consensual circumstances, a 16-year-old is not considered old enough by law to give consent.
Finally, human trafficking can come into play with child pornography. Unfortunately, many individuals, child, and adult are involved in trafficking rings. These individuals are forced into undesirable circumstances and threatened to perform. Often these are victims of other countries or kidnapped.
- Unfortunately for this mother and child, their trip to the beach in May of 2019 ended with horrific results. The mother noted while her five-year-old daughter was playing that she had caught the attention of a strange man. After seeing him take pictures of her daughter, she contacted the local police.
The man, 21-year-old John Meehan, was found to be in possession of pictures of the young girl and child pornography. He was arrested, charged with possession of a sexual performance of a child and unlawful surveillance, and now he faces trial. The mother urges other parents to pay close attention to their young ones at play to prevent them from being misused in the same way.
- A different example of a recent case involves a resident of Poughkeepsie, NY. Sean Elmendorf was accused by police of having child pornography on his person. Following his arrest, a search warrant was issued to obtain further evidence.
He was found to have more child pornography on his home computer. Police also found illegal weapons in the home. Sean and his wife now face charges for the illegal weapon charges as well. Neither has been sentenced are awaiting a hearing date.
When discussing Sexual Performance of a Child, there are multiple agencies that can investigate. The three main investigators would be Child Protective Services, CPS, local law enforcement, and federal law enforcement such as the FBI. The three groups can work together to collect evidence and investigate complaints.
The primary prosecutor, however, would be law enforcement. This would be done on the local/state level unless the offense occurred across state lines or involved a distribution in the postal service. In those circumstances, the individual would be tried under federal guidelines. If tried on a federal level, the individual can also be convicted of charges across state lines by those jurisdictions as well.
These circumstances would mainly depend on the offense, level of involvement, and cooperation of various agencies. In any case, a lawyer should be consulted. Depending on whether or not the material was in possession, production or distribution, these charges are all felonies with life-altering effects.
For these penalties, they are referenced with the NY Penal Code. It is important to understand that these are just general guidelines that the state uses. A judge can use these as suggestions but makes the ultimate responsibility depending on the circumstances.
For a conviction of use of a child in a sexual performance is considered a class C felony. When following the state guidelines for felony sex offenses (there are also guidelines for violent, nonviolent and repeat), it states that the punishment should be at least 3 ½ years but not more than 15 years of prison.
There are also fines that can be charged in associate. Often times, there are contributions made to the victims. This covers the cost of the court fees, any medical expenses, and even funding for counseling for the victim.
- If charged with promoting an obscene sexual performance of a child or promoting a sexual performance of a child, this is considered a class D felony. The punishments are for 2 ½ years in prison for up to 7 years. There can also be associated with fines to cover court fees and any funds that are ordered to be paid to the victim.
- With possessing an obscene sexual performance of a child or possessing a sexual performance with a child, it is considered a class E felony. The minimum sentence is 1 ½ year in jail for up to 4 years. The fines are determined by the judge to be with the prison sentence.
- Finally, facilitating the sexual performance of a child with the use of alcohol or controlled substances is considered a class B felony. This is the most severe of all the charges. The punishments can include fines to cover the legal expenses, funds to the victim, and prison sentences. The guidelines state that five years is the minimum sentence with 25 years as the maximum.
As previously stated, the NY Penal Code includes adjustments to the sentences for repeat offenders. This can cause extended prison sentences, increased fines, and even include life in prison.
The adjusted sentences are determined by the exact situation, circumstances, and criminal background. If any other illegal activity was performed, then those charges would apply as well. For repeat offenders, the jail sentence can be a life sentence. When allowed, there is a death penalty that the federal government allows for these crimes.
In addition to the fines assigned and the jail time, should you pay your dues and serve a sentence, there are other penalties that come with these charges. Since all of these are felony charges, the penalties that accompany this title are imposed as well.
- This means a restriction on voting rights, gun ownership, and even travel limitations.
- A felon would also lose access to certain careers as these show up on a routine background check. This can make it difficult to obtain employment in many establishments for the rest of your life.
- Finally, you can also lose access to parental rights and government benefits.
- Finally, with charges related to children in this sense would cause for a final punishment: becoming a registered sex offender.
This sounds as though you must simply report to a locality that you live in the region. However, this information is considered a public record. Any individual can look up a zip code, name, or area to determine who and how many offenders are in the region. Your name, picture, and personal information would be displayed for public record.
- This also limits your allowed interaction with children, where you can live, and where you are allowed to be; for example, you could not frequent a childcare center or playground. It could cause for a parole violation in some circumstances.
Often times, defenses are in relation to the particular circumstances. Consensual sex, unintentional possession, accidental possession, illegal search, an ‘addiction defense’ or the material not being child pornography are defenses used.
- As stated, sex with a minor under the age of 17, consensual or not, is considered illegal. Until the minor is 17 years of age, they cannot give consent to the activity. This places you at risk for charges if you have images, video, any material or relations with a minor.
- The unintentional and accidental possession are similar defenses. These revolve around a shared computer having the data on it, but you were not aware. This can also include the accidental download, such as in a pop-up add and you did not want or intentionally select to download the material. The critical component here is that you were unaware of the material being in your possession.
- Evidence that is gained through coercion, entrapment, or illegal searches is obviously not able to be used in a legal proceeding. This would require a technicality of a warrant, being talked into a confession, or being pushed towards this conclusion. This is a risky defense and determines purely on the technical details of a case.
- Some have argued that they are ‘addicted to’ the material in question. This is an admission of guilt and states you knew and used the material. But due to your psychological condition, the charges could be decreased. This is not a common defense but has been used successfully.
- Finally, the last defense is in relation to the material. This is where family photographs, distasteful but not illegal, and questionable material fall. The material in question is debatable if it is considered child pornography. For those embarrassing photographs, this is a defense that could be used. The material in question must have no intention of being used for this purpose and not meet the criteria previously described.
Why Consult a Lawyer?
All of these charges are considered felony charges. They can affect the rest of your life, your livelihood, your living situation, your rights, and even your privacy. Each situation is different based on the individual, and in order to assure that you are cleared or defended properly, it is critical to have your case reviewed by a professional.
They can look at the charges at hand, those that are possible and assess the situation to determine the best plan of action. For parents, if your child’s case is being pursued by a criminal prosecutor at the state or federal level, you do not need to worry on the criminal elements for your child. Your child is unlikely to be prosecuted for the actions, as they were a minor during the situation and unable to consent.
However, should you wish to sue for distress, medical expenses, or for any other cause that could rise a civil suit, this is important. An attorney can help to determine the best course of action to ensure that you receive the funds needed to cover the medical costs, the psychology costs, and any other expenses that are needed to care for your child from this point forward.
- Luis Bonilla pleads not guilty to the charges of:
- Possession of sexual performance of a child
- Possession of a Forged Instrument
- Theft of Services
Bonilla was found to have child pornography on his personal laptop. He states that he allowed others to use his password and did not download the content himself. Of the content, there were ten films, sexual Beastiality of a child and a dog, and images found in his possession.
He states that because he shared his password and repaired computers in the area that the material was not his own. Allegedly he used a masked IP address and attempted to shield his identity.
- Milton Gomez was found guilty of all charges:
- 13 Counts Predatory sexual assault of a child
- 2 Counts Sexual Assault
- 21 Counts of Promoting a sexual performance of a child
- 61 Counts of Possession of a sexual performance of a child
Gomez was employed as a babysitter for a six-year-old child. For six years, until the child was 12, he had repeated offenses with her and sexually abused her at an Armenian church. There were incidents with another unidentified child as well.
When discovered, he was found to have multiple sources of child pornography in addition to his assaults on the children. He was found guilty of all charges and will be sentenced based on his crimes.
- Jose Ramos was found guilty of:
- Using a child in a sexual performance
- Sexual Assault
Ramos was working as a security guard. He convinced several teenage girls to take nude photos in exchange for not being pursued shoplifting charges at a pharmacy. He also grabbed one of the girls and a 28-year-old female in a sexual assault.
After the act, he asked the women to sign a nondisclosure agreement not to report him and allowed them to leave the store. The 28-year-old adult reported him to the police, who then discovered the other victims. He was found guilty and sentenced to 4 years in prison.
- Natalio Canete-Perez was found guilty of:
- Sexual Assault
- Sexual Abuse
- Possession of a sexual performance with a child
Cante-Perez was noted to have posed as a young girl on Facebook to lure in the victims. He raped a ten-year-old and 15 years old. He also exploited a 15-year-old who he convinced to have sex with a 12-year-old girl while he watched and taped the incident. After they had finished, he then had relations with the 12-year-old girl.
He convinced the 10-year-old to send him nude photos of himself before she reported it to a relative that called the police. He was sentenced to 108 ½ years in prison for his crimes.
- Mervyn Affoon was charged with:
- Forcible Touching- Sexual Assault
- 3rd-degree sexual abuse
- Endangering the welfare of a child
- Sexual Misconduct
- Promoting a sexual performance by a child
Affoon was tried for 25 counts of these crimes. He was 65 years old, teaching at a local high school. He had groped a student in a classroom and twice in an elevator. He was also discovered to have had multiple relations with the student at his apartment for which he filmed the encounters. The teacher faces an upcoming trial for his crimes.