Bill Text: NY A07519 | 2023-2024 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          7519

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                      May 25, 2023
                                       ___________

        Introduced by M. of A. SILLITTI -- read once and referred to the Commit-
          tee on Codes

        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.
    20          246.40 Application of article.
    21  § 246.00 Definitions.
    22    As used in this article, the following definitions shall apply:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11051-02-3
        A. 7519                             2

     1    1. "Disseminate" and "publish" shall have the same  meanings  as  such
     2  terms are defined in section 250.40 of this title.
     3    2.  "Create"  means to design, develop, devise, generate, issue, make,
     4  manufacture, produce, or transmute.
     5    3. "Sexually explicit depiction" means any work created through  sexu-
     6  ally explicit digitization, including still and audio visual.
     7    4.  "Sexually  explicit  digitization"  means  to realistically depict
     8  either: (a) the nude body parts of another human being as the nude  body
     9  parts  of  the depicted individual or computer-generated nude body parts
    10  as the nude body parts of the depicted individual; or (b)  the  depicted
    11  individual  engaging  in sexual conduct, as defined by subdivision three
    12  of section 263.00 of this part, or sexual contact, as defined by  subdi-
    13  vision three of section 130.00 of this part, in which the depicted indi-
    14  vidual did not engage.
    15    5.  "Audio visual" means any film, motion picture, audio and/or visual
    16  recording, digital image, computer image or computer-generated image.
    17    6. "Sexually explicit  material"  means  any  portion  of  a  sexually
    18  explicit  depiction  that  shows  the depicted individual performing, or
    19  appearing to perform, in the nude, meaning with an unclothed or  exposed
    20  intimate part, as defined in section 245.15 of this title, or performing
    21  in,  appearing  to perform in, or being subjected to, sexual conduct, as
    22  defined by subdivision three of section 263.00 of this part,  or  sexual
    23  contact, as defined by subdivision three of section 130.00 of this part.
    24    7.  "Depicted individual" means an identifiable person who appears, as
    25  a result of sexually explicit digitization, to be giving  a  performance
    26  that  the identifiable person did not actually perform or that was actu-
    27  ally performed by the identifiable person but was  subsequently  altered
    28  to be in violation of this article.
    29    8.  "Identifiable  person" means an individual whose image is or would
    30  be clearly identifiable as a specific person by any individual.   "Iden-
    31  tifiable  person"  shall not be construed to require proof of the actual
    32  identity of the individual.
    33    9. "Individual" means a natural, human being.
    34  § 246.05 Unlawful dissemination of a sexually explicit depiction  of  an
    35             individual.
    36    A  person  is  guilty of unlawful dissemination of a sexually explicit
    37  depiction of an individual when the person, with  the  intent  to  cause
    38  harm  to  the reputation or emotional, financial, or physical welfare of
    39  another person, disseminates sexually explicit  material  that  includes
    40  the  depicted  individual, and he or she knows or reasonably should have
    41  known the depicted individual did not consent to  its  creation  or  its
    42  dissemination.
    43    Unlawful dissemination of a sexually explicit depiction of an individ-
    44  ual is a class B misdemeanor.
    45  § 246.10 Unlawful  publication  of  a  sexually explicit depiction of an
    46             individual.
    47    A person is guilty of unlawful  publication  of  a  sexually  explicit
    48  depiction  of an individual when the person, with the intent to sexually
    49  gratify that person or another person or with the intent to  cause  harm
    50  to the reputation or emotional, financial, or physical welfare of anoth-
    51  er  person,  publishes  sexually  explicit  material  that  includes the
    52  depicted individual, and he or she knows or reasonably should have known
    53  the depicted individual did not consent to its creation or its  publica-
    54  tion.
    55    Unlawful publication of a sexually explicit depiction of an individual
    56  is a class A misdemeanor.
        A. 7519                             3

     1  § 246.15 Unlawful access of a sexually explicit depiction of a child.
     2    A person is guilty of unlawful access of a sexually explicit depiction
     3  of  a  child when the person, knowing the character and content thereof,
     4  knowingly accesses with intent to sexually gratify a person and to  view
     5  any  sexually explicit depiction that includes sexual conduct by a child
     6  less than seventeen years of age.
     7    Unlawful access of a sexually explicit depiction of a child is a class
     8  A misdemeanor.
     9  § 246.20 Unlawful distribution of a sexually  explicit  depiction  of  a
    10             child in the second degree.
    11    A  person  is  guilty  of unlawful distribution of a sexually explicit
    12  depiction of a child in the second degree when the person,  knowing  the
    13  character  and  content  thereof,  disseminates  or  publishes  sexually
    14  explicit material that includes a depicted individual,  and  he  or  she
    15  knows  or  reasonably  should have known that the depicted individual is
    16  less than seventeen years of age.
    17    Unlawful distribution of a sexually explicit depiction of a  child  in
    18  the second degree is a class E felony.
    19  § 246.25 Unlawful  distribution  of  a  sexually explicit depiction of a
    20             child in the first degree.
    21    A person is guilty of unlawful distribution  of  a  sexually  explicit
    22  depiction  of  a  child in the first degree when the person, knowing the
    23  character and  content  thereof,  creates  and  either  disseminates  or
    24  publishes  sexually  explicit material that includes a depicted individ-
    25  ual, and the depicted individual is less than seventeen years of age.
    26    Unlawful distribution of a sexually explicit depiction of a  child  in
    27  the first degree is a class D felony.
    28  § 246.30 Affirmative defense.
    29    1.  It  shall  be  an affirmative defense to unlawful publication of a
    30  sexually explicit depiction of an individual and unlawful  dissemination
    31  of  a sexually explicit depiction of an individual that a depicted indi-
    32  vidual who is eighteen years of age or older consented to  the  creation
    33  and  either  the  dissemination  or publication of the sexually explicit
    34  depiction.
    35    (a) A depicted individual who is eighteen years of age  or  older  may
    36  consent  to  the  creation,  dissemination,  or  publication of sexually
    37  explicit material only by knowingly and voluntarily signing an agreement
    38  written in plain language that includes a  general  description  of  the
    39  sexually  explicit material, the sexually explicit depiction in which it
    40  will be incorporated,  and  the  nature  of  the  depicted  individual's
    41  consent.
    42    (b)  A  depicted  individual may rescind consent by delivering written
    43  notice within three business days from the date consent was given to the
    44  person in whose favor consent was made, or longer  if  an  agreement  so
    45  stipulates.
    46    2. It shall not be a defense under this article that:
    47    (a)  there is a disclaimer included in the sexually explicit depiction
    48  that communicates that the inclusion  of  the  depicted  individual  was
    49  unauthorized,  that  the  depicted individual did not participate in the
    50  creation or development of the sexually explicit depiction, or that  the
    51  sexually explicit depiction has been altered through digitization; or
    52    (b)  the  features of the depicted individual have been or are altered
    53  prior to or after the creation or distribution of the sexually  explicit
    54  depiction, provided that the depicted individual remains an identifiable
    55  person.
    56  § 246.35 Consent.
        A. 7519                             4

     1    A person under eighteen years of age shall be incapable of consent for
     2  the purposes of this article. No adult can consent on behalf of a person
     3  under eighteen years of age.
     4  § 246.40 Application of article.
     5    1. This article shall not apply to the following:
     6    (a) the reporting of unlawful conduct;
     7    (b) the creation, dissemination, or publication of a sexually explicit
     8  rendition  of  a depicted individual made during lawful and common prac-
     9  tices of law enforcement, legal proceedings, or medical treatment;
    10    (c) the creation, dissemination, or publication of a sexually explicit
    11  depiction made for a legitimate public purpose, including for  political
    12  or  newsworthy  value or similar work, commentary, criticism, or disclo-
    13  sure that is otherwise protected by the constitution of this state or of
    14  the United States, provided that sexually explicit material shall not be
    15  considered of newsworthy value solely because the depicted individual is
    16  a public figure.
    17    (d) the creation, dissemination, or publication of a sexually explicit
    18  depiction that does not include sexually explicit material.
    19    2. (a) Nothing in this article shall be  construed  to  limit,  or  to
    20  enlarge,  the protections that 47 U.S.C. § 230 confers on an interactive
    21  computer service for content provided  by  another  information  content
    22  provider, as such terms are defined in 47 U.S.C. § 230.
    23    (b)  Nothing  in  this  article  shall  be deemed to interfere with or
    24  prohibit any rights established by  section  fifty-two-c  of  the  civil
    25  rights  law,  as  added by chapter three hundred four of the laws of two
    26  thousand twenty.
    27    § 3. Subdivision 2 of section 30.10 of the criminal procedure  law  is
    28  amended by adding a new paragraph (a-3) to read as follows:
    29    (a-3)  A  prosecution for unlawful distribution of a sexually explicit
    30  depiction of a child must be commenced within five years after the peri-
    31  od set forth in paragraph (f) of subdivision three of this section;
    32    § 4.  Paragraph (f) of subdivision 3 of section 30.10 of the  criminal
    33  procedure  law, as amended by chapter 11 of the laws of 2019, is amended
    34  to read as follows:
    35    (f) For purposes of  a  prosecution  involving  a  sexual  offense  as
    36  defined  in  article  one  hundred thirty of the penal law, other than a
    37  sexual offense delineated in paragraph (a) of subdivision  two  of  this
    38  section,  committed  against  a  child  less than eighteen years of age,
    39  incest in the first, second or  third  degree  as  defined  in  sections
    40  255.27,  255.26  and  255.25  of the penal law committed against a child
    41  less than eighteen years of age,  [or]  use  of  a  child  in  a  sexual
    42  performance  as  defined  in  section  263.05 of the penal law, unlawful
    43  publication of a sexually explicit depiction of an individual as defined
    44  in section 246.10 of the penal law, unlawful dissemination of a sexually
    45  explicit depiction of an individual as defined in section 246.05 of  the
    46  penal  law, or unlawful distribution of a sexually explicit depiction of
    47  a child in the first degree or second  degree  as  defined  in  sections
    48  246.25  and  246.20 of the penal law, the period of limitation shall not
    49  begin to run until the child has reached the age of twenty-three or  the
    50  offense  is  reported  to  a law enforcement agency or statewide central
    51  register of child abuse and maltreatment, whichever occurs earlier.
    52    § 5. Paragraph (e) of subdivision 4 of section 510.10 of the  criminal
    53  procedure  law,  as amended by section 2 of part UU of chapter 56 of the
    54  laws of 2020, is amended to read as follows:
    55    (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
    56  the penal law, or a felony sex offense defined in section 70.80  of  the
        A. 7519                             5

     1  penal  law,  or  a  crime involving incest as defined in section 255.25,
     2  255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one
     3  hundred  thirty  of such law, or a felony defined in article two hundred
     4  forty-six of such law;
     5    §  6.  Subparagraph  (v)  of paragraph (b) of subdivision 1 of section
     6  530.20 of the criminal procedure law, as amended by section 3 of part UU
     7  of chapter 56 of the laws of 2020, is amended to read as follows:
     8    (v) a sex trafficking offense defined in section 230.34 or 230.34-a of
     9  the penal law, or a felony sex offense defined in section 70.80  of  the
    10  penal  law  or  a  crime  involving incest as defined in section 255.25,
    11  255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one
    12  hundred  thirty  of such law, or a felony defined in article two hundred
    13  forty-six of such law;
    14    § 7. Paragraph (m) of subdivision 4 of section 530.40 of the  criminal
    15  procedure  law,  as  added  by section 4 of part UU of chapter 56 of the
    16  laws of 2020, is amended to read as follows:
    17    (m) assault in the third degree as defined in section  120.00  of  the
    18  penal  law  or arson in the third degree as defined in section 150.10 of
    19  the penal law, when such crime is charged as a hate crime as defined  in
    20  section  485.05  of  the  penal  law, or a felony defined in article two
    21  hundred forty-six of the penal law;
    22    § 8. Subparagraph (i) of paragraph (a) of  subdivision  2  of  section
    23  168-a  of  the  correction law, as amended by chapter 189 of the laws of
    24  2018, is amended to read as follows:
    25    (i) a conviction of or a conviction for an attempt to  commit  any  of
    26  the  provisions  of  sections  120.70,  130.20,  130.25, 130.30, 130.40,
    27  130.45, 130.60, 230.34, 230.34-a, 250.50, 255.25, 255.26 [and],  255.27,
    28  246.20  and  246.25 or article two hundred sixty-three of the penal law,
    29  or section 135.05, 135.10, 135.20 or 135.25  of  such  law  relating  to
    30  kidnapping  offenses,  provided the victim of such kidnapping or related
    31  offense is less than seventeen years old and the  offender  is  not  the
    32  parent  of the victim, or section 230.04, where the person patronized is
    33  in fact less than  seventeen  years  of  age,  230.05,  230.06,  230.11,
    34  230.12,  230.13,  subdivision  two  of  section  230.30, section 230.32,
    35  230.33, or 230.34 of the penal law, or section 230.25 of the  penal  law
    36  where  the  person prostituted is in fact less than seventeen years old,
    37  or
    38    § 9. Severability. If any provision of this article, or  any  applica-
    39  tion of any provision of this article, is held to be invalid, that shall
    40  not  affect the validity or effectiveness of any other provision of this
    41  act, or of any other application of any provision of this act, which can
    42  be given effect without that provision or application; and to that  end,
    43  the provisions and applications of this act are severable.
    44    § 10. This act shall take effect immediately.