Under New York law a person is guilty of possessing a sexual performance by a child when knowing the character and content of the performance, he or she knowingly has in his or her possession or control, any performance which includes sexual conduct by a child less then 16 years old.
What is a Performance for the Possessing a Sexual Performance by a Child Charge in NY
A performance under NY law, is any play, motion picture, photograph or dance. A performance can also be defined as any type of visual representation exhibited before an audience.
Sexual conduct under NY law is actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse or lewd exhibition of the genitals. Sexual intercourse has it’s everyday meaning. Deviate sexual intercourse means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva. Sado-Masochistic abuse means flagellation of torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed.
Simulated means the explicit depiction of any sexual conduct which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.
How is Knowingly Defined for the Possessing a Sexual Performance by a Child Charge in NY
A person knowingly has in his or her own possession of control a performance which includes sexual conduct by a child less then 16 years of age, when that person is aware that he or she is in possession of such performance. However, it is not an element of the crime and the district attorney is not required to prove beyond a reasonable doubt that the defendant knew the child was less then 16 years of age.
How is the age of the child determined?
A judge or a jury will determine the age of the child in the pictures by one of the following methods:
- personal inspection of the child
- inspection of the photo or motion picture which constitutes the sexual performance
- oral testimony by a witness to the sexual performance as to the age of the child based upon the childs appearance
- expert medical testimony based upon the appearance of the child in the sexual performance
If you or you loved one is charged with possession of a sexual performance of a child, call the criminal defense lawyers at Spodek Law Group P.C. for a free consultation. Our lawyers can be reached at (888) 997-4123.