Opposition to amendments changing the definitions of felony sex offenses in the Penal Law

SUMMARY

The Mass Incarceration Task Force and the Sex Offense Working Group issued a report in opposition to Part L of Governor Kathy Hochul’s Public Protection and General Government Article VII Legislation, proposed as part of the Executive Budget for Fiscal Year 2026. Part L proposes amending Penal Law sections 263.10, 263.11, 263.15, and 263.16 to add “including a performance created or altered by digitization as defined in section 245.15 of this part” to the definition of the offense in each section. All of these offenses are classified under New York law as sex offenses. “As a matter of legislative process, we are concerned that amendments changing the definitions of felony sex offenses in the Penal Law were inserted into the Executive Budget, without sufficient notice or a dedicated hearing. If the governor and the legislature are determined to address the phenomenon of computer generated or altered images of sexual conduct that appear to involve children…[t]hey should gather more information about artificial intelligence (“AI”) technology and solicit testimony from a range of experts and stakeholders, and only then, if they find it is warranted, should they propose to legislate in this area.”

OUTCOME

This provision was included in the final FY 2026 NYS Budget

REPORT

REPORT ON LEGISLATION BY THE MASS INCARCERATION TASK FORCE AND SEX OFFENSE WORKING GROUP

A3005-B / S3005-B (Budget Article VII, Public Protection and General Government) – Part L

AN ACT to amend the penal law, in relation to artificial intelligence-generated child sexual abuse material

THIS BILL IS NOT APPROVED

I.  INTRODUCTION

This report is respectfully submitted by the Sex Offense Working Group and the Mass Incarceration Task Force of the New York City Bar Association (the “City Bar”) in opposition to Part L of Governor Kathy Hochul’s Public Protection and General Government Article VII Legislation, proposed as part of the Executive Budget for Fiscal Year 2026.

The City Bar is an organization of approximately 23,000 lawyers, judges, and law students dedicated to improving the administration of justice. The members of the groups that produced this report include prosecutors, criminal defense attorneys, and civil rights attorneys who analyze the legal, social, and public policy aspects of criminal justice issues facing New Yorkers today.

Part L of the Governor’s Public Protection and General Government Article VII Legislation proposes amending Penal Law sections 263.10 (Promoting an obscene sexual performance by a child, a class D felony), 263.11 (Possessing an obscene sexual performance by a child, a class E felony), 263.15 (Promoting a sexual performance by a child, a class D felony), and 263.16 (Possessing a sexual performance by a child, a class E felony) to add “including a performance created or altered by digitization as defined in section 245.15 of this part” to the definition of the offense in each section. All of these offenses are classified under New York law as sex offenses.[1]

As a matter of legislative process, we are concerned that amendments changing the definitions of felony sex offenses in the Penal Law were inserted into the Executive Budget, without sufficient notice or a dedicated hearing. If the governor and the legislature are determined to address the phenomenon of computer generated or altered images of sexual conduct that appear to involve children, they should do so in a deliberate manner. They should gather more information about artificial intelligence (“AI”) technology and solicit testimony from a range of experts and stakeholders, and only then, if they find it is warranted, should they propose to legislate in this area.

II.  JUSTIFICATION

A. Part L’s proposed amendments to Penal Law article 263 that add “created… by digitization” to the definition of each offense would manufacture victimless crimes, would violate the Free Speech Clause of the First Amendment, and would be impossible to enforce

Presumably these amendments are a reaction to computer applications that use AI to aid in the creation of photorealistic images of sexual activity that appear to involve children. Although technology for “photoshopping” digital images has been around for decades, recent advances in AI technology have made it possible to generate digital images that are nearly indistinguishable from photographs of real people.[2] The amendments use the definition of “digitization” found in Penal Law section 245.15(d): “‘digitization’ shall mean to alter an image in a realistic manner utilizing an image or images of a person, other than the person depicted, or computer generated images” (emphasis added).[3] As distasteful as they may be, computer generated images do not involve people in real life—adults or children—so they are not child pornography as traditionally understood, nor are they records of child sexual abuse.

The rationale for criminalizing the production, promotion and possession of child pornography is that doing so protects children from the harm caused by child pornography as traditionally understood. In fact, many people now use the term “child sexual abuse materials” instead of “child pornography” in order to emphasize the harm, both physical and psychological, inherent in forcing children into sexual conduct and recording it. The purpose of criminalization is not to punish the distasteful proclivities of adults who view it, but rather to disincentivize recorded abuse and thereby prevent future victimization. Part L’s proposed amendments move away from this rationale of protecting children, as no actual children are involved—simply computer-generated representations—and embrace punishing people for their sexual fantasies. This would be a sea change in the justification for laws against child pornography.[4] Because the child protection rationale does not apply, the United States Supreme Court has ruled that criminalizing computer-generated images that appear to depict sexual conduct by children, without involving images of any actual children, violates the First Amendment’s guarantee of freedom of speech.[5]

Even if there were no constitutional barrier, enforcing these statutes as amended to include “created . . . by digitization” would be impossible. Part of the definition of “sexual performance by a child” in Penal Law article 263 is “sexual conduct by a child less than seventeen years of age” (for sections 263.10 and 263.15) or “less than sixteen years of age” (for sections 263.11 and 263.16). As a practical matter, how would law enforcement officials determine if the digital “child” depicted engaged in “sexual conduct” is under 17 or 16 years of age? Simply asking the question highlights the absurdity of deeming a computer-generated image a “sexual performance by a child.” Another difficulty arises in determining what computer generated images are covered: while the definition of “digitization” requires that the images be “realistic,” that is a subjective determination that introduces ambiguity into the statute. This is particularly troubling in light of the severe consequences of conviction, as discussed below.

Concern that viewing computer-generated images that appear to depict children engaging in sexual conduct might lead to real-world sexual abuse of actual children is not supported by social science research: no predictive relationship has been found between possessing child pornography and committing sexual offenses involving contact with children.[6] Speculation about possible indirect harm, unsupported by data, cannot overcome the protection that the federal constitution provides to expression that is imaginative and not a record of actual wrongdoing.[7]

B. Part L’s proposed amendments to Penal Law article 263 that add “altered by digitization” to sections 263.10, 263.11, 263.15, and 263.16 impose liability for felony sex offenses—and the long-lasting, onerous burden of sex offender registration—for actions that do not involve the sexual abuse of children. For this reason the proposed amendments are unduly harsh.

Presumably the proposed amendments are intended to respond to computer applications that use AI to alter images to make it appear as if actual people, including children, originally depicted in non-sexual images, are engaging in sexual conduct. Specifically, children’s faces can be put in place of adults’ faces in sexual images.

Like purely computer-generated images—and unlike child pornography—altered images based on adults engaging in sexual conduct are not records of child sexual abuse. The traumatic harm involved in the creation of child pornography is therefore absent.

The majority of federal courts have found that altered images derived from pictures of actual children are not protected by the First Amendment because of the reputational and emotional harms that may result when the children’s faces are disseminated.[8] But Part L’s amendments would take the drastic step of equating such alteration with the production, promotion, and possession of images that involved actual child sexual abuse. All of the offenses Part L would amend are felonies and sex offenses requiring registration under the Sex Offender Registration Act (“SORA”).[9] As previous City Bar policy statements have noted, registration under SORA is stigmatizing, burdensome, and dangerous to registrants, and may be more detrimental to public safety than protective.[10] Increasing the number of offenses subject to SORA registration in this manner would be counterproductive.

It is not hard to imagine teenagers, whose technological savvy often outweighs their judgment, facing felony prosecutions and sex offender registration for ill-considered actions they thought of as jokes.[11] In addition, the amended sections would impose criminal liability without any evidence that the altered images were disseminated.[12] Therefore a person could be convicted of a felony sex offense based on possession of altered images that no one, beyond himself and a law enforcement official, ever saw. In such a case, authorities would be improperly criminalizing sexual proclivities, not protecting children. By comparison, Penal Law section 245.15, Unlawful dissemination or publication of an intimate image—addressing the phenomenon known as “revenge porn”—requires proof that the accused intentionally disseminated or published an image, as well as proof of “intent to cause harm to the emotional, financial or physical welfare of another person” before a conviction can be obtained.[13] It is a Class A misdemeanor, rather than a felony, and is not classified as a sex offense.[14]

III. CONCLUSION

Rather than rush these flawed amendments into the Penal Law through the state budget without time for study and reflection, we urge the legislature to reject the proposed amendments to Part L of the governor’s budget and avoid enacting unconstitutional and unenforceable legislation and an unduly harsh expansion of criminal liability that would not advance the prevention of child sexual abuse.

Mass Incarceration Task Force
Tess Cohen, Chair

Sex Offense Working Group
Nicole Geoglis, Chair
Alex Lesman, member

March 2025