Bill Text: NY A07519 | 2023-2024 | General Assembly | Amended
Bill Title: Prohibits disseminating, publishing, distributing, or accessing certain sexually explicit depictions of individuals or children; establishes affirmative defense of consent; 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: Partisan Bill (Democrat 13-0)
Status: (Introduced) 2024-02-08 - print number 7519a [A07519 Detail]
Download: New_York-2023-A07519-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7519--A 2023-2024 Regular Sessions IN ASSEMBLY May 25, 2023 ___________ Introduced by M. of A. SILLITTI, McDONALD, BRONSON, CONRAD, DICKENS, ARDILA -- read once and referred to the Committee on Codes -- recom- mitted to the Committee on Codes in accordance with Assembly Rule 3, sec. 2 -- 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 dissemination of a sexually explicit depiction 9 of an individual. 10 246.10 Unlawful publication of a sexually explicit depiction of 11 an individual. 12 246.15 Unlawful access of a sexually explicit depiction of a 13 child. 14 246.20 Unlawful distribution of a sexually explicit depiction of 15 a child in the second degree. 16 246.25 Unlawful distribution of a sexually explicit depiction of 17 a child in the first degree. 18 246.30 Affirmative defense. 19 246.35 Consent. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11051-03-4A. 7519--A 2 1 246.40 Application of article. 2 § 246.00 Definitions. 3 As used in this article, the following definitions shall apply: 4 1. "Disseminate" and "publish" shall have the same meanings as such 5 terms are defined in section 250.40 of this title. 6 2. "Create" means to design, develop, devise, generate, issue, make, 7 manufacture, produce, or transmute. 8 3. "Sexually explicit depiction" means any work created through sexu- 9 ally explicit digitization, including still and audio visual. 10 4. "Sexually explicit digitization" means to realistically depict 11 either: (a) the nude body parts of another human being as the nude body 12 parts of the depicted individual or computer-generated nude body parts 13 as the nude body parts of the depicted individual; or (b) the depicted 14 individual engaging in sexual conduct, as defined by subdivision three 15 of section 263.00 of this part, or sexual contact, as defined by subdi- 16 vision three of section 130.00 of this part, in which the depicted indi- 17 vidual did not engage. 18 5. "Audio visual" means any film, motion picture, audio and/or visual 19 recording, digital image, computer image or computer-generated image. 20 6. "Sexually explicit material" means any portion of a sexually 21 explicit depiction that shows the depicted individual performing, or 22 appearing to perform, in the nude, meaning with an unclothed or exposed 23 intimate part, as defined in section 245.15 of this title, or performing 24 in, appearing to perform in, or being subjected to, sexual conduct, as 25 defined by subdivision three of section 263.00 of this part, or sexual 26 contact, as defined by subdivision three of section 130.00 of this part. 27 7. "Depicted individual" means an identifiable person who appears, as 28 a result of sexually explicit digitization, to be giving a performance 29 that the identifiable person did not actually perform or that was actu- 30 ally performed by the identifiable person but was subsequently altered 31 to be in violation of this article. 32 8. "Identifiable person" means an individual whose image is or would 33 be clearly identifiable as a specific person by any individual. "Iden- 34 tifiable person" shall not be construed to require proof of the actual 35 identity of the individual. 36 9. "Individual" means a natural, human being. 37 § 246.05 Unlawful dissemination of a sexually explicit depiction of an 38 individual. 39 A person is guilty of unlawful dissemination of a sexually explicit 40 depiction of an individual when the person, with the intent to cause 41 harm to the reputation or emotional, financial, or physical welfare of 42 another person, disseminates sexually explicit material that includes 43 the depicted individual, and he or she knows or reasonably should have 44 known the depicted individual did not consent to its creation or its 45 dissemination. 46 Unlawful dissemination of a sexually explicit depiction of an individ- 47 ual is a class B misdemeanor. 48 § 246.10 Unlawful publication of a sexually explicit depiction of an 49 individual. 50 A person is guilty of unlawful publication of a sexually explicit 51 depiction of an individual when the person, with the intent to sexually 52 gratify that person or another person or with the intent to cause harm 53 to the reputation or emotional, financial, or physical welfare of anoth- 54 er person, publishes sexually explicit material that includes the 55 depicted individual, and he or she knows or reasonably should have knownA. 7519--A 3 1 the depicted individual did not consent to its creation or its publica- 2 tion. 3 Unlawful publication of a sexually explicit depiction of an individual 4 is a class A misdemeanor. 5 § 246.15 Unlawful access of a sexually explicit depiction of a child. 6 A person is guilty of unlawful access of a sexually explicit depiction 7 of a child when the person, knowing the character and content thereof, 8 knowingly accesses with intent to sexually gratify a person and to view 9 any sexually explicit depiction that includes sexual conduct by a child 10 less than seventeen years of age. 11 Unlawful access of a sexually explicit depiction of a child is a class 12 A misdemeanor. 13 § 246.20 Unlawful distribution of a sexually explicit depiction of a 14 child in the second degree. 15 A person is guilty of unlawful distribution of a sexually explicit 16 depiction of a child in the second degree when the person, knowing the 17 character and content thereof, disseminates or publishes sexually 18 explicit material that includes a depicted individual, and he or she 19 knows or reasonably should have known that the depicted individual is 20 less than seventeen years of age. 21 Unlawful distribution of a sexually explicit depiction of a child in 22 the second degree is a class E felony. 23 § 246.25 Unlawful distribution of a sexually explicit depiction of a 24 child in the first degree. 25 A person is guilty of unlawful distribution of a sexually explicit 26 depiction of a child in the first degree when the person, knowing the 27 character and content thereof, creates and either disseminates or 28 publishes sexually explicit material that includes a depicted individ- 29 ual, and the depicted individual is less than seventeen years of age. 30 Unlawful distribution of a sexually explicit depiction of a child in 31 the first degree is a class D felony. 32 § 246.30 Affirmative defense. 33 1. It shall be an affirmative defense to unlawful publication of a 34 sexually explicit depiction of an individual and unlawful dissemination 35 of a sexually explicit depiction of an individual that a depicted indi- 36 vidual who is eighteen years of age or older consented to the creation 37 and either the dissemination or publication of the sexually explicit 38 depiction. 39 (a) A depicted individual who is eighteen years of age or older may 40 consent to the creation, dissemination, or publication of sexually 41 explicit material only by knowingly and voluntarily signing an agreement 42 written in plain language that includes a general description of the 43 sexually explicit material, the sexually explicit depiction in which it 44 will be incorporated, and the nature of the depicted individual's 45 consent. 46 (b) A depicted individual may rescind consent by delivering written 47 notice within three business days from the date consent was given to the 48 person in whose favor consent was made, or longer if an agreement so 49 stipulates. 50 2. It shall not be a defense under this article that: 51 (a) there is a disclaimer included in the sexually explicit depiction 52 that communicates that the inclusion of the depicted individual was 53 unauthorized, that the depicted individual did not participate in the 54 creation or development of the sexually explicit depiction, or that the 55 sexually explicit depiction has been altered through digitization; orA. 7519--A 4 1 (b) the features of the depicted individual have been or are altered 2 prior to or after the creation or distribution of the sexually explicit 3 depiction, provided that the depicted individual remains an identifiable 4 person. 5 § 246.35 Consent. 6 A person under eighteen years of age shall be incapable of consent for 7 the purposes of this article. No adult can consent on behalf of a person 8 under eighteen years of age. 9 § 246.40 Application of article. 10 1. This article shall not apply to the following: 11 (a) the reporting of unlawful conduct; 12 (b) the creation, dissemination, or publication of a sexually explicit 13 rendition of a depicted individual made during lawful and common prac- 14 tices of law enforcement, legal proceedings, or medical treatment; 15 (c) the creation, dissemination, or publication of a sexually explicit 16 depiction made for a legitimate public purpose, including for political 17 or newsworthy value or similar work, commentary, criticism, or disclo- 18 sure that is otherwise protected by the constitution of this state or of 19 the United States, provided that sexually explicit material shall not be 20 considered of newsworthy value solely because the depicted individual is 21 a public figure. 22 (d) the creation, dissemination, or publication of a sexually explicit 23 depiction that does not include sexually explicit material. 24 2. (a) Nothing in this article shall be construed to limit, or to 25 enlarge, the protections that 47 U.S.C. § 230 confers on an interactive 26 computer service for content provided by another information content 27 provider, as such terms are defined in 47 U.S.C. § 230. 28 (b) Nothing in this article shall be deemed to interfere with or 29 prohibit any rights established by section fifty-two-c of the civil 30 rights law, as added by chapter three hundred four of the laws of two 31 thousand twenty. 32 § 3. Subdivision 2 of section 30.10 of the criminal procedure law is 33 amended by adding a new paragraph (a-3) to read as follows: 34 (a-3) A prosecution for unlawful distribution of a sexually explicit 35 depiction of a child must be commenced within five years after the peri- 36 od set forth in paragraph (f) of subdivision three of this section; 37 § 4. Paragraph (f) of subdivision 3 of section 30.10 of the criminal 38 procedure law, as amended by chapter 11 of the laws of 2019, is amended 39 to read as follows: 40 (f) For purposes of a prosecution involving a sexual offense as 41 defined in article one hundred thirty of the penal law, other than a 42 sexual offense delineated in paragraph (a) of subdivision two of this 43 section, committed against a child less than eighteen years of age, 44 incest in the first, second or third degree as defined in sections 45 255.27, 255.26 and 255.25 of the penal law committed against a child 46 less than eighteen years of age, [or] use of a child in a sexual 47 performance as defined in section 263.05 of the penal law, unlawful 48 publication of a sexually explicit depiction of an individual as defined 49 in section 246.10 of the penal law, unlawful dissemination of a sexually 50 explicit depiction of an individual as defined in section 246.05 of the 51 penal law, or unlawful distribution of a sexually explicit depiction of 52 a child in the first degree or second degree as defined in sections 53 246.25 and 246.20 of the penal law, the period of limitation shall not 54 begin to run until the child has reached the age of twenty-three or the 55 offense is reported to a law enforcement agency or statewide central 56 register of child abuse and maltreatment, whichever occurs earlier.A. 7519--A 5 1 § 5. Paragraph (e) of subdivision 4 of section 510.10 of the criminal 2 procedure law, as amended by section 2 of part UU of chapter 56 of the 3 laws of 2020, is amended to read as follows: 4 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of 5 the penal law, or a felony sex offense defined in section 70.80 of the 6 penal law, or a crime involving incest as defined in section 255.25, 7 255.26 or 255.27 of such law, or a misdemeanor defined in article one 8 hundred thirty of such law, or a felony defined in article two hundred 9 forty-six of such law; 10 § 6. Subparagraph (v) of paragraph (b) of subdivision 1 of section 11 530.20 of the criminal procedure law, as amended by section 3 of part UU 12 of chapter 56 of the laws of 2020, is amended to read as follows: 13 (v) a sex trafficking offense defined in section 230.34 or 230.34-a of 14 the penal law, or a felony sex offense defined in section 70.80 of the 15 penal law or a crime involving incest as defined in section 255.25, 16 255.26 or 255.27 of such law, or a misdemeanor defined in article one 17 hundred thirty of such law, or a felony defined in article two hundred 18 forty-six of such law; 19 § 7. Paragraph (m) of subdivision 4 of section 530.40 of the criminal 20 procedure law, as added by section 4 of part UU of chapter 56 of the 21 laws of 2020, is amended to read as follows: 22 (m) assault in the third degree as defined in section 120.00 of the 23 penal law or arson in the third degree as defined in section 150.10 of 24 the penal law, when such crime is charged as a hate crime as defined in 25 section 485.05 of the penal law, or a felony defined in article two 26 hundred forty-six of the penal law; 27 § 8. Subparagraph (i) of paragraph (a) of subdivision 2 of section 28 168-a of the correction law, as amended by chapter 189 of the laws of 29 2018, is amended to read as follows: 30 (i) a conviction of or a conviction for an attempt to commit any of 31 the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.40, 32 130.45, 130.60, 230.34, 230.34-a, 250.50, 255.25, 255.26 [and], 255.27, 33 246.20 and 246.25 or article two hundred sixty-three of the penal law, 34 or section 135.05, 135.10, 135.20 or 135.25 of such law relating to 35 kidnapping offenses, provided the victim of such kidnapping or related 36 offense is less than seventeen years old and the offender is not the 37 parent of the victim, or section 230.04, where the person patronized is 38 in fact less than seventeen years of age, 230.05, 230.06, 230.11, 39 230.12, 230.13, subdivision two of section 230.30, section 230.32, 40 230.33, or 230.34 of the penal law, or section 230.25 of the penal law 41 where the person prostituted is in fact less than seventeen years old, 42 or 43 § 9. Subparagraph (i) of paragraph (a) of subdivision 2 of section 44 168-a of the correction law, as amended by chapter 23 of the laws of 45 2024, is amended to read as follows: 46 (i) a conviction of or a conviction for an attempt to commit any of 47 the provisions of sections 120.70, 130.20, 130.25, 130.30, former 48 section 130.40, former section 130.45, sections 130.60, 230.34, 49 230.34-a, 250.50, 255.25, 255.26 [and], 255.27, 246.20 and 246.25 or 50 article two hundred sixty-three of the penal law, or section 135.05, 51 135.10, 135.20 or 135.25 of such law relating to kidnapping offenses, 52 provided the victim of such kidnapping or related offense is less than 53 seventeen years old and the offender is not the parent of the victim, or 54 section 230.04, where the person patronized is in fact less than seven- 55 teen years of age, 230.05, 230.06, 230.11, 230.12, 230.13, subdivision 56 two of section 230.30, section 230.32, 230.33, or 230.34 of the penalA. 7519--A 6 1 law, or section 230.25 of the penal law where the person prostituted is 2 in fact less than seventeen years old, or 3 § 10. Severability. If any provision of this article, or any applica- 4 tion of any provision of this article, is held to be invalid, that shall 5 not affect the validity or effectiveness of any other provision of this 6 act, or of any other application of any provision of this act, which can 7 be given effect without that provision or application; and to that end, 8 the provisions and applications of this act are severable. 9 § 11. This act shall take effect immediately; provided, however, that 10 the amendments to subdivision 2 of section 168-a of the correction law, 11 made by section nine of this act shall take effect on the same date and 12 in the same manner as section 32 of chapter 23 of the laws of 2024, 13 takes effect.
