CJI2d[NY] Penal Law § 263.05 (Before September 1, 2024)

The (specify) count is Use of a Child in a Sexual Performance.

Under our law, a person is guilty of Use of a Child in a Sexual Performance if, knowing the character and content thereof,

Select appropriate alternative:

he or she employs, authorizes or induces a child less than seventeen years of age to engage in a sexual performance.

or

and being a parent, legal guardian or custodian of a child less than seventeen years of age, he or she consents to the

participation by such child in a sexual performance.

The following term used in that definition has a special meaning:

SEXUAL PERFORMANCE means any performance or part thereof which includes sexual conduct by a child less than seventeen years of age.²

The following terms used in that definition of “sexual performance”have special meanins.

“Performance” means any play, motion picture, photograph or dance. [“Performance” also means any other visual representation exhibited before an audience.³]

“Sexual conduct” means actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.⁴

“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.⁵

“Oral sexual conduct” means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.⁶

“Anal sexual conduct” means conduct between persons consisting of contact between the penis and anus.⁷

“Sado-masochistic abuse” means flagellation or 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.⁸

[Add where appropriate:

In order to determine whether the person who participated in a sexual performance was under the age of seventeen years, you may make such determination by

3 Penal Law § | 263.00(4).

4 Penal Law § | 263.00(3).

5 Penal Law § | 263.00(6).

6 Penal Law § | 130.00(2)(a).

7 Penal Law § | 130.00(2)(b).

8 Penal Law § | 263.00(8), Penal Law | § | 235.20.

Select appropriate alternative(s): personal inspection of the child,

inspection of a photograph [or motion picture] which constituted the sexual performance,

oral testimony by a witness to the sexual performance as to the age of the child based upon the child’s appearance,

expert medical testimony based upon the appearance of the child in the sexual performance.⁹]

[Add where the affirmative defense is not raised:

It is not an element of this crime, and thus the People are not required to prove beyond a reasonable doubt, that the defendant knew the child was less than seventeen years of age.¹⁰]

In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, both of the following two elements:

1. That on or about (date) , in the County of (County) , the defendant, (defendant’s name) ,

Select appropriate alternative:

employed, authorized or induced a child less than

seventeen years of age to engage in a sexual

performance; and or

being a parent, legal guardian or custodian of a child less than seventeen years of age, he/she consented to the participation by such child in a sexual performance; and

2. That the defendant knew the character and content of such sexual performance.

[NOTE: If the affirmative defense does not apply:

If you find the People have proven beyond a reasonable doubt both of those elements, you must find the defendant guilty of this crime.

If you find the People have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of this crime.

[NOTE: If the affirmative defense does apply:

If you find that the People have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of the crime of Use of a Child in a Sexual Performance.

If you find that the People have proven beyond a reasonable doubt both of those elements, you must consider an affirmative defense the defendant has raised. Remember, if you have already found the defendant not guilty of Use of a Child in a Sexual Performance, you will not consider the affirmative defense.

Under our law, it is an affirmative defense to this charge of Use of a Child in a Sexual Performance that

Select appropriate alternative:

the defendant in good faith reasonably believed the person appearing in the performance was seventeen years of age or over.¹¹

or

the defendant was a librarian engaged in the normal course of his/her employment, a motion picture projectionist, stage employee or spotlight operator, cashier, doorman, usher, candy stand attendant, porter or in any other nonmanagerial or non-supervisory capacity in a motion picture theatre; provided he/she has no financial interest, other than his/her employment, which employment does not encompass compensation based upon any proportion of the gross receipts, in the promotion of a sexual performance for sale, rental or exhibition or in the promotion, presentation or direction of any sexual performance, or is in any way responsible for acquiring such material for sale, rental or exhibition.¹²

Under our law, the defendant has the burden of proving an affirmative defense by a preponderance of the evidence.

In determining whether the defendant has proven the affirmative defense by a preponderance of the evidence, you may consider evidence introduced by the People or by the defendant.

A preponderance of the evidence means the greater part of the believable and reliable evidence, not in terms of the number of witnesses or the length of time taken to present the evidence, but in terms of its quality and the weight and convincing effect it

has. For the affirmative defense to be proved by a

preponderance of the evidence, the evidence that supports the affirmative defense must be of such convincing quality as to outweigh any evidence to the contrary.

If you find that the defendant has not proven the affirmative defense by a preponderance of the evidence, then, based upon your initial determination that the People had proven beyond a reasonable doubt both of the elements of Use of a Child in a Sexual Performance, you must find the defendant guilty of that crime.

If you find that the defendant has proven the affirmative defense by a preponderance of the evidence, then you must find the defendant not guilty of Use of a Child in a Sexual Performance.]