New York Penal Law § 263.11 - Possessing an Obscene Sexual Performance by a Child

Possession of Child Pornography is a serious crime under both New York State and Federal Law. Possessing an Obscene Sexual Performance by a Child is a New York child pornography law that prohibits a person from possessing, accessing or exercising control over any content that depicts an “obscene performance” by a child under 16 years of age.

Before a judge or jury can convict anyone of Possessing an Obscene Sexual Performance by a Child, the government must present proof of each element of the offense beyond a reasonable doubt. The elements of Possessing an Obscene Sexual Performance by a Child are:

1. The defendant knowingly possessed or accessed with the intent to view;
2. Any obscene sexual performance by a child under the age of 16.

In this context, the term performance refers to any photograph, video, or digital image. Additionally, the law applies to actual performances as well as simulated sex acts, such as sexual intercourse, oral sex, masturbation, or “lewd exhibition of the genitals.”

To “possess” content under § 263.11 means to have physical possession over the content or otherwise exercise control over the content. Notably, merely viewing an image or video does not constitute possession unless the person saves, prints, or downloads the content. However, knowingly accessing content containing an obscene sexual performance by a child also falls within the terms of the statute. “Knowingly accessing” involves accessing content with the specific objective of viewing it.

To be convicted of this offense, the prosecution does not need to prove that the defendant knew the child was under 16.

As New York’s general child pornography law, Possessing an Obscene Sexual Performance by a Child includes possessing or downloading videos or images of any “obscene sexual performance.” This includes photographs, digital images, videos or live acts.

Often, prosecutors bring charges of Possessing an Obscene Sexual Performance by a Child along with one or more of the following:

• Possessing a Sexual Performance by a Child – NY Penal Law § 263.16
• Use of a Child in a Sexual Performance – NY Penal Law § 263.05
• Promoting an Obscene Sexual Performance of a Child – NY Penal Law § 263.10
• Facilitating a Sexual Performance by Controlled Substance – NY Penal Law § 263.30(1)(a)
• Facilitating a Sexual Performance by Alcohol – NY Penal Law § 263.30(1)(b)

The defenses to Possessing an Obscene Sexual Performance by a Child include:

• Unintentional possession;
• Entrapment;
• Unconstitutional search or seizure; and
• Evidentiary challenges.

A defendant’s lack of knowledge that the child was under 16 is not a defense to Possessing an Obscene Sexual Performance by a Child.

Possessing an Obscene Sexual Performance by a Child is a class E felony. In New York, class E felonies are punishable by up to four years in prison.

If you are facing child pornography charges, it is imperative that you reach out to an experienced New York criminal defense attorney as soon as possible. Possessing an Obscene Sexual Performance by a Child is a very serious crime, but there are defenses that can mitigate your exposure and even result in the prosecution withdrawing the case or an acquittal. At the law firm of Tilem & Associates, P.C., we have been defending the rights and freedom of individuals charged with serious crimes for more than two decades, and we know what it takes to help you reach the best result possible. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.