Legislative Memo: Child Sexual Performance

The purpose of this bill is to outlaw sexual conduct of children in any play, exhibition, or motion picture and to criminalize possession of such material where nudity or sexual conduct of a child is depicted.

The NYCLU views the use of children in the production of visual depiction’s of sexually explicit conduct as a violation of children’s rights when such use is likely to cause: (a) substantial physical harm or, (b) substantial and continuing emotional or psychological harm. Government quite properly has the means to protect the interests of children in these situations by the use of criminal prosecution of those persons who cause such harm to children. However, this bill would make anyone who owned a copy of Blue Lagoon, with Brooke Shields, into a felon.

The New York Civil Liberties Union shares the concern of parents, clergy and community officials about the exploitation of children. The Child Protection Act of 1984, which took effect May 21, 1984, prohibits the publication, advertisement, and sale of child pornography. If implemented properly, this Act would largely address the issue of pornographic exploitation of children by penalizing those committing the harm.

Moreover, Article 263 of the New York Penal Law presently proscribes the promotion of sexual performance of a child. In the 1990 case People v. Keyes (75 NY2d 343), the Court interpreted the statutory definition of “promote” to include the term “to procure” thereby outlawing the “acquisition of child pornography, whether for personal consumption or for distribution to others.”

In light of the foregoing, the proposed legislation, in the absence of any documentary basis of need after the Keyes case was decided, would dramatically curtail First Amendment freedoms in New York State and expand the authority of the police to regulate simple possession of graphic material in a person’s home. The legislation would invite uneven and selective law enforcement.

When First Amendment activity is at stake, the capacity for selective enforcement carries the special danger that public officials will discriminate against those espousing unpopular views and beliefs. The proposed legislation is so vague that it will cause the citizen to “steer clear of the lawful zone” beyond what might be constitutionally required. Libraries, theaters, and individuals will decline possession of lawful material rather than risk the ever-present threat of prosecution.

The NYCLU opposes any restraint on the right of adults to choose materials they read or review or artists, the materials they depict. Freedom of speech and press and freedom to read can be safeguarded only if the First Amendment is abided by strictly to prohibit any restriction of these basic rights.

The proposed legislation would undermine these rights while failing to solve the very real problem of child abuse and exploitation. The NYCLU vigorously opposes its passage.