Bill Text: NY S08510 | 2023-2024 | General Assembly | Amended
Bill Title: Prohibits accessing or distributing certain sexually explicit depictions of children; prohibits consent to such depictions by anyone under eighteen years of age; makes such crimes eligible for bail; includes certain crimes as sex offenses.
Spectrum: Bipartisan Bill
Status: (Introduced) 2024-05-14 - PRINT NUMBER 8510A [S08510 Detail]
Download: New_York-2023-S08510-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 8510--A IN SENATE February 7, 2024 ___________ Introduced by Sens. FERNANDEZ, PALUMBO -- read twice and ordered print- ed, and when printed to be committed to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law, the criminal procedure law and the correction law, in relation to establishing offenses involving sexual- ly explicit digital alterations The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "digital alterations protections act". 3 § 2. The penal law is amended by adding a new article 246 to read as 4 follows: 5 ARTICLE 246 6 OFFENSES INVOLVING SEXUALLY EXPLICIT DIGITAL ALTERATIONS 7 Section 246.00 Definitions. 8 246.05 Unlawful access of a sexually explicit depiction of a 9 child. 10 246.10 Unlawful distribution of a sexually explicit depiction of 11 a child in the second degree. 12 246.15 Unlawful distribution of a sexually explicit depiction of 13 a child in the first degree. 14 246.20 Disclaimers. 15 246.25 Consent. 16 246.30 Application of article. 17 § 246.00 Definitions. 18 As used in this article, the following definitions shall apply: 19 1. "Disseminate" and "publish" shall have the same meanings as such 20 terms are defined in section 250.40 of this title. 21 2. "Create" means to design, develop, devise, generate, issue, make, 22 manufacture, produce, or transmute. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11051-08-4S. 8510--A 2 1 3. "Sexually explicit depiction" means any work created through sexu- 2 ally explicit digitization, including still and audio visual depictions. 3 4. "Sexually explicit digitization" means a realistic depiction of 4 either: (a) the nude body parts of another human being as the nude body 5 parts of the depicted individual or computer-generated nude body parts 6 as the nude body parts of the depicted individual; or (b) the depicted 7 individual engaging in sexual conduct, as defined by subdivision three 8 of section 263.00 of this part, or sexual contact, as defined by subdi- 9 vision three of section 130.00 of this part, in which the depicted indi- 10 vidual did not engage. 11 5. "Audio visual" means any film, motion picture, audio and/or visual 12 recording, digital image, computer image or computer-generated image. 13 6. "Sexually explicit material" means any portion of a sexually 14 explicit depiction that shows the depicted individual performing, or 15 appearing to perform, in the nude, meaning with an unclothed or exposed 16 intimate part, as defined in section 245.15 of this title, or performing 17 in, appearing to perform in, or being subjected to, sexual conduct, as 18 defined by subdivision three of section 263.00 of this part, or sexual 19 contact, as defined by subdivision three of section 130.00 of this part. 20 7. "Depicted individual" means an identifiable person who appears, as 21 a result of sexually explicit digitization, to be engaging in conduct in 22 which the identifiable person did not actually engage in or that was 23 actually engaged in by the identifiable person but the depiction of the 24 actual conduct was subsequently altered to be in violation of this arti- 25 cle. 26 8. "Identifiable person" means an individual whose image is or would 27 be reasonably identifiable as a specific person. Such identification 28 can be based upon the sexually explicit depiction itself or from infor- 29 mation displayed in connection with any sexually explicit depiction. 30 9. "Individual" means a natural, human being. 31 § 246.05 Unlawful access of a sexually explicit depiction of a child. 32 A person is guilty of unlawful access of a sexually explicit depiction 33 of a child when the person, knowing the character and content thereof, 34 knowingly accesses any sexually explicit material of a depicted individ- 35 ual with the intent to view and sexually gratify any person and such 36 person knows or reasonably should have known that the depicted individ- 37 ual is less than seventeen years of age. 38 Unlawful access of a sexually explicit depiction of a child is a class 39 A misdemeanor. 40 § 246.10 Unlawful distribution of a sexually explicit depiction of a 41 child in the second degree. 42 A person is guilty of unlawful distribution of a sexually explicit 43 depiction of a child in the second degree when the person, knowing the 44 character and content thereof, disseminates or publishes sexually 45 explicit material that includes a depicted individual, and such person 46 knows or reasonably should have known that the depicted individual is 47 less than seventeen years of age. 48 Unlawful distribution of a sexually explicit depiction of a child in 49 the second degree is a class E felony. 50 § 246.15 Unlawful distribution of a sexually explicit depiction of a 51 child in the first degree. 52 A person is guilty of unlawful distribution of a sexually explicit 53 depiction of a child in the first degree when the person, knowing the 54 character and content thereof, creates and either disseminates or 55 publishes sexually explicit material that includes a depicted individual 56 and such depicted individual is less than seventeen years of age.S. 8510--A 3 1 Unlawful distribution of a sexually explicit depiction of a child in 2 the first degree is a class D felony. 3 § 246.20 Disclaimers. 4 It shall not be a defense under this article that: 5 1. there is a disclaimer included in the sexually explicit depiction 6 that communicates that the inclusion of the depicted individual was 7 unauthorized, that the depicted individual did not participate in the 8 creation or development of the sexually explicit depiction, or that the 9 sexually explicit depiction has been altered through digitization; or 10 2. the features of the depicted individual have been or were altered 11 prior to or after the creation or distribution of the sexually explicit 12 material, provided that the depicted individual remains an identifiable 13 person. 14 § 246.25 Consent. 15 A person under eighteen years of age shall be incapable of consent. 16 No adult can consent on behalf of a person under eighteen years of age. 17 § 246.30 Application of article. 18 1. This article shall not apply to the following: 19 (a) the reporting of unlawful conduct; 20 (b) the creation, dissemination, or publication of a sexually explicit 21 depiction of a depicted individual made for law enforcement purposes, 22 legal proceedings, or lawful medical treatments; or 23 (c) the creation, dissemination, or publication of a sexually explicit 24 depiction made for a legitimate public purpose, including for political 25 or newsworthy value or similar work, commentary, criticism, or disclo- 26 sure that is otherwise protected by the constitution of this state or of 27 the United States, provided that sexually explicit material shall not be 28 considered of newsworthy value solely because the depicted individual is 29 a public figure. 30 2. Nothing in this article shall be construed to limit, or to enlarge, 31 the protections that 47 U.S.C. § 230 confers on an interactive computer 32 service for content provided by another information content provider, as 33 such terms are defined in 47 U.S.C. § 230. 34 § 3. Paragraph (a) of subdivision 1 of section 245.15 of the penal 35 law, as amended by chapter 513 of the laws of 2023, is amended to read 36 as follows: 37 (a) with intent to sexually gratify that person or another person or 38 with the intent to cause harm to the reputation or emotional, financial 39 or physical welfare of another person, they intentionally disseminate or 40 publish a still or video image depicting such other person with one or 41 more intimate parts exposed or engaging in sexual conduct with another 42 person, including an image created or altered by digitization, where 43 such person may reasonably be identified from the still or video image 44 itself or from information displayed in connection with the still or 45 video image; and 46 § 4. Paragraph (b) of subdivision 1 of section 245.15 of the penal 47 law, as amended by chapter 513 of the laws of 2023, is amended to read 48 as follows: 49 (b) the actor knew or reasonably should have known that the person 50 depicted did not consent to such creation, dissemination, or publica- 51 tion, including the creation, dissemination, or publication of an image 52 taken with the consent of the person depicted when such person had a 53 reasonable expectation that the image would remain private, regardless 54 of whether the actor was present when such image was taken. 55 § 5. Subdivision 2 of section 30.10 of the criminal procedure law is 56 amended by adding a new paragraph (a-3) to read as follows:S. 8510--A 4 1 (a-3) A prosecution for unlawful distribution of a sexually explicit 2 depiction of a child must be commenced within five years after the peri- 3 od set forth in paragraph (f) of subdivision three of this section; 4 § 6. Paragraph (f) of subdivision 3 of section 30.10 of the criminal 5 procedure law, as amended by chapter 11 of the laws of 2019, is amended 6 to read as follows: 7 (f) For purposes of a prosecution involving a sexual offense as 8 defined in article one hundred thirty of the penal law, other than a 9 sexual offense delineated in paragraph (a) of subdivision two of this 10 section, committed against a child less than eighteen years of age, 11 incest in the first, second or third degree as defined in sections 12 255.27, 255.26 and 255.25 of the penal law committed against a child 13 less than eighteen years of age, [or] use of a child in a sexual 14 performance as defined in section 263.05 of the penal law, or unlawful 15 distribution of a sexually explicit depiction of a child in the first 16 degree or second degree as defined in sections 246.10 and 246.15 of the 17 penal law, the period of limitation shall not begin to run until the 18 child has reached the age of twenty-three or the offense is reported to 19 a law enforcement agency or statewide central register of child abuse 20 and maltreatment, whichever occurs earlier. 21 § 7. Paragraph (e) of subdivision 4 of section 510.10 of the criminal 22 procedure law, as amended by section 2 of part UU of chapter 56 of the 23 laws of 2020, is amended to read as follows: 24 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of 25 the penal law, or a felony sex offense defined in section 70.80 of the 26 penal law, or a crime involving incest as defined in section 255.25, 27 255.26 or 255.27 of such law, or a misdemeanor defined in article one 28 hundred thirty of such law, or a felony defined in article two hundred 29 forty-six of such law; 30 § 8. Subparagraph (v) of paragraph (b) of subdivision 1 of section 31 530.20 of the criminal procedure law, as amended by section 3 of part UU 32 of chapter 56 of the laws of 2020, is amended to read as follows: 33 (v) a sex trafficking offense defined in section 230.34 or 230.34-a of 34 the penal law, or a felony sex offense defined in section 70.80 of the 35 penal law or a crime involving incest as defined in section 255.25, 36 255.26 or 255.27 of such law, or a misdemeanor defined in article one 37 hundred thirty of such law, or a felony defined in article two hundred 38 forty-six of such law; 39 § 9. Paragraph (m) of subdivision 4 of section 530.40 of the criminal 40 procedure law, as added by section 4 of part UU of chapter 56 of the 41 laws of 2020, is amended to read as follows: 42 (m) assault in the third degree as defined in section 120.00 of the 43 penal law or arson in the third degree as defined in section 150.10 of 44 the penal law, when such crime is charged as a hate crime as defined in 45 section 485.05 of the penal law, or a felony defined in article two 46 hundred forty-six of the penal law; 47 § 10. Subparagraph (i) of paragraph (a) of subdivision 2 of section 48 168-a of the correction law, as amended by chapter 189 of the laws of 49 2018, is amended to read as follows: 50 (i) a conviction of or a conviction for an attempt to commit any of 51 the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.40, 52 130.45, 130.60, 230.34, 230.34-a, 250.50, 255.25, 255.26 [and], 255.27, 53 246.10 and 246.15 or article two hundred sixty-three of the penal law, 54 or section 135.05, 135.10, 135.20 or 135.25 of such law relating to 55 kidnapping offenses, provided the victim of such kidnapping or related 56 offense is less than seventeen years old and the offender is not theS. 8510--A 5 1 parent of the victim, or section 230.04, where the person patronized is 2 in fact less than seventeen years of age, 230.05, 230.06, 230.11, 3 230.12, 230.13, subdivision two of section 230.30, section 230.32, 4 230.33, or 230.34 of the penal law, or section 230.25 of the penal law 5 where the person prostituted is in fact less than seventeen years old, 6 or 7 § 11. Subparagraph (i) of paragraph (a) of subdivision 2 of section 8 168-a of the correction law, as amended by chapter 23 of the laws of 9 2024, is amended to read as follows: 10 (i) a conviction of or a conviction for an attempt to commit any of 11 the provisions of sections 120.70, 130.20, 130.25, 130.30, former 12 section 130.40, former section 130.45, sections 130.60, 230.34, 13 230.34-a, 250.50, 255.25, 255.26 [and], 255.27, 246.10 and 246.15 or 14 article two hundred sixty-three of the penal law, or section 135.05, 15 135.10, 135.20 or 135.25 of such law relating to kidnapping offenses, 16 provided the victim of such kidnapping or related offense is less than 17 seventeen years old and the offender is not the parent of the victim, or 18 section 230.04, where the person patronized is in fact less than seven- 19 teen years of age, 230.05, 230.06, 230.11, 230.12, 230.13, subdivision 20 two of section 230.30, section 230.32, 230.33, or 230.34 of the penal 21 law, or section 230.25 of the penal law where the person prostituted is 22 in fact less than seventeen years old, or 23 § 12. Severability. If any provision of this article, or any applica- 24 tion of any provision of this article, is held to be invalid, that shall 25 not affect the validity or effectiveness of any other provision of this 26 act, or of any other application of any provision of this act, which can 27 be given effect without that provision or application; and to that end, 28 the provisions and applications of this act are severable. 29 § 13. This act shall take effect immediately; provided, however, that 30 the amendments to subdivision 2 of section 168-a of the correction law, 31 made by section eleven of this act shall take effect on the same date 32 and in the same manner as section 32 of chapter 23 of the laws of 2024, 33 takes effect.
