Preventing the Sexual Exploitation of Children - The New York Experience

• NCJ Number: 95402
• Journal: New York State Bar Journal Volume: 56 Issue: 2 Dated: (February 1984) Pages: 11-18
• Author(s): E J Stack
• Date Published: 1984
• Length: 8 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

This article examines prosecutions and judicial responses to statutory challenges involving New York State's Article 263, which proscribes any performance of sexual conduct by a child under 16 and any promotion of that performance, whether or not it was obscene.

Abstract

'Promoting' child pornography includes such noncommercial conduct as lending, giving, mailing, providing, and circulating pornographic material as well as conducting financial transactions. In addition to penalties for promoters of child pornography, Article 263 authorizes criminal penalties for those who employ, authorize, or induce children to participate in the production of any explicit sexual material. In one series of challenges, the Ferber case, the courts ultimately upheld the State's legitimate interest in both protecting the welfare of its children and in seeing that they are protected, even if such efforts might restrict what otherwise would be constitutionally protected conduct. The Ferber decision was also the first to distinguish the wholly pornographic from the statutorily obscene. The decision in People v. Folk held that the focus of a prosecution under the challenged 'promoting' section was on the conduct of those who employ children for sexual performances and not on the content of any film a defendant might have produced. Even in a case in which the defendant raised the issue of his right to possess obscene material and view it in a private setting, the proscription against commercialization of obscene activities by children was upheld. It is difficult to assess how enforcement and prosecution under Article 263 has altered the child pornography industry in New York. While commercially produced child pornography is decreasing, an active underground market is flourishing, and pedophiles have organized themselves. In addition to strong and effective legislation, public awareness and pressure are needed to deter the proliferation of child pornography and prostitution. A total of 90 footnotes are provided.