New York Child Pornography Laws: Frequently Asked Questions

Overview

Pornography, in one form or another, has hit this generation hard, and it is growing every day. Twenty years ago, pornography of any kind was barely mentioned anywhere, but a study in 2006 revealed astonishing statistics that between the ages of 18-49, 82 percent viewed pornographic magazines, 84 percent watched pornographic films, and 34 percent watched online. This has become a form of illegal entertainment and affects not only those viewing it, but also the entire population that produces and distributes it.

Current Statistics

Child pornography is combined in the stats that the Neilson Company has accumulated for the United States. Recent stats show that every day in the U.S.:

• 37 pornographic videos are created
• 2.5 billion emails containing porn are sent and received online
• 68 million searches are generated, which is 25 percent of all searches
• 116,000 queries are received about child pornography

Pornography is illegal in the 50 states, and with the growing number of arrests, nationally recognized Long Island Defense Lawyer Raiser & Kenniff is adamant about answering questions from the public concerning these crimes.

New York Child Pornography Frequently Asked Questions

What is considered an obscene sexual performance?

Sexual performance is considered "obscene" when it contains sexual intercourse, anal or oral sex, bestiality, masturbation, excretion, sadism, masochism, or a display of genitals for no artistic, literary or scientific reason. It involves knowingly, with premeditation, having possession or control of it and with intent to distribute or view it. Having in your possession a sexual and obscene performance by a child is a class E felony and carries a sentence of up to four years in prison if convicted.

What is considered "child pornography?"

Under New York criminal law, the term used for "child pornography" is "child sexual performance." Any sexual performance involving a child under 16 years old is a child sexual performance, and these crimes are extremely serious. They lead to significant prison time, the loss of reputation, and often occupation. The exact definition of possession of child pornography in the state of New York is straightforward. It is literally being in possession of a piece of material that shows a sexual performance of a child under the age of sixteen. If the material shows actual or even simulated sexual activity of that child, then it is considered to be child pornography in New York. There are two categories of crime that can be charged under this statute. Those are possession of a sexual performance of a child and possession of an obscene performance of a child. There may seem to be little difference between the two, but the truth is that there is a bit of daylight between these two legal definitions. Each is considered a Class E Felony in New York.

What is the difference between promoting and exhibiting an obscene and degrading sexual performance involving a child?

Both of these charges are illegal under New York law. Promoting includes possessing, manufacturing, selling, or publishing. Both promoting and exhibiting are class D felonies, and if convicted, you will face up to seven years in prison.

What Does It Mean To Possess Child Pornography?

Literally, being in possession of any material of a child under the age of 16 involved in a sexual performance is illegal. In the state of New York, the material could even be a simulated sexual activity of a child, but it is still considered child pornography and is a Class E Felony.

What if the Child said they were older?

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The age mistake is a common defense that those arrested believe they can easily use to defend themselves in court. Child Pornography clearly dictates that the child is under the age of 16, so no matter how the child is perceived, by definition, it is criminal activity. Only a few occupations deem it necessary to be carrying child porn; for example, a specialized law enforcement officer could possibly be in possession of child pornography, but these cases are rare.

How Can I Defend Myself Against This Charge?

Pornographic charges are incredibly serious charges, so if you have found yourself in this position, don't think for a minute that you can defend yourself. The prosecution will bury you immediately, and you will go to prison. Your only hope is one of the two following defenses:

• Age Mistake — This is the defense that there is a reasonable assumption that the person in the material that you have is under the age of seventeen, then you might be able to defend yourself in court by making this claim. The court would have to agree that there was reason to believe this to be the case. It might be difficult to get away with this one for the simple fact that everyone sees age a little differently. What is clearly a child to one person may be obviously an adult to another. It is mostly a matter of definition.
• Occupation — There are a limited few occupations in which it might be necessary to be in possession of child pornography. Think of the role that some specialized law enforcement officers play, for example. They may find the need to possess these materials from time to time. These are very rare cases, though.

You will undoubtedly have to register on the sex offenders list, which will bring discrimination against you and your family for the rest of your life.

What Happens If You Are Found Guilty?

The reality is that you could face prison or probation or some combination of the two. If you receive probation as either part or all of your sentence, you are going to have at least ten years of it. You might also go to prison for up to four years, depending on what the judge decides. Besides all of that, you will have to register on the sex offenders watch list, which is a huge black mark to have in a society that does not give any mercy to sex offenders. It is something that you have to realize could happen to you. Never take a chance when accused of this kind of crime. It can ruin your entire life to even be accused of something like this. If you happen to be found guilty, then things only get worse from that point.

Resources

Pornhub, a pornographic website, reportedly receives 28.5 billion hits or over 78 million hits a day, and this is only the tip of the iceberg with thousands of other websites displaying pornographic materials. Despite the efforts of many, pornography is increasing in every major country around the world, and more is being revealed every day because so much is unknown.