Bill Text: IL HB2219 | 2013-2014 | 98th General Assembly | Introduced


Bill Title: Amends the Criminal Code of 2012. Eliminates the provision that possession by the defendant of more than one of the same film, videotape or visual reproduction or depiction by computer in which child pornography is depicted shall raise a rebuttable presumption that the defendant possessed such materials with the intent to disseminate them. Provides that possession of more than one of the same film, videotape or visual reproduction or depiction by computer in which child pornography is depicted is a Class X felony for which the defendant shall be sentenced to a term of imprisonment of not less than 9 years and not more than 40 years.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2014-12-03 - Session Sine Die [HB2219 Detail]

Download: Illinois-2013-HB2219-Introduced.html


98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB2219

Introduced , by Rep. Dwight Kay

SYNOPSIS AS INTRODUCED:
720 ILCS 5/11-20.1 from Ch. 38, par. 11-20.1

Amends the Criminal Code of 2012. Eliminates the provision that possession by the defendant of more than one of the same film, videotape or visual reproduction or depiction by computer in which child pornography is depicted shall raise a rebuttable presumption that the defendant possessed such materials with the intent to disseminate them. Provides that possession of more than one of the same film, videotape or visual reproduction or depiction by computer in which child pornography is depicted is a Class X felony for which the defendant shall be sentenced to a term of imprisonment of not less than 9 years and not more than 40 years.
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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

A BILL FOR

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1 AN ACT concerning criminal law.
2 Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4 Section 5. The Criminal Code of 2012 is amended by changing
5Section 11-20.1 as follows:
6 (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
7 Sec. 11-20.1. Child pornography.
8 (a) A person commits child pornography who:
9 (1) films, videotapes, photographs, or otherwise
10 depicts or portrays by means of any similar visual medium
11 or reproduction or depicts by computer any child whom he or
12 she knows or reasonably should know to be under the age of
13 18 or any severely or profoundly intellectually disabled
14 person where such child or severely or profoundly
15 intellectually disabled person is:
16 (i) actually or by simulation engaged in any act of
17 sexual penetration or sexual conduct with any person or
18 animal; or
19 (ii) actually or by simulation engaged in any act
20 of sexual penetration or sexual conduct involving the
21 sex organs of the child or severely or profoundly
22 intellectually disabled person and the mouth, anus, or
23 sex organs of another person or animal; or which

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1 involves the mouth, anus or sex organs of the child or
2 severely or profoundly intellectually disabled person
3 and the sex organs of another person or animal; or
4 (iii) actually or by simulation engaged in any act
5 of masturbation; or
6 (iv) actually or by simulation portrayed as being
7 the object of, or otherwise engaged in, any act of lewd
8 fondling, touching, or caressing involving another
9 person or animal; or
10 (v) actually or by simulation engaged in any act of
11 excretion or urination within a sexual context; or
12 (vi) actually or by simulation portrayed or
13 depicted as bound, fettered, or subject to sadistic,
14 masochistic, or sadomasochistic abuse in any sexual
15 context; or
16 (vii) depicted or portrayed in any pose, posture or
17 setting involving a lewd exhibition of the unclothed or
18 transparently clothed genitals, pubic area, buttocks,
19 or, if such person is female, a fully or partially
20 developed breast of the child or other person; or
21 (2) with the knowledge of the nature or content
22 thereof, reproduces, disseminates, offers to disseminate,
23 exhibits or possesses with intent to disseminate any film,
24 videotape, photograph or other similar visual reproduction
25 or depiction by computer of any child or severely or
26 profoundly intellectually disabled person whom the person

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1 knows or reasonably should know to be under the age of 18
2 or to be a severely or profoundly intellectually disabled
3 person, engaged in any activity described in subparagraphs
4 (i) through (vii) of paragraph (1) of this subsection; or
5 (3) with knowledge of the subject matter or theme
6 thereof, produces any stage play, live performance, film,
7 videotape or other similar visual portrayal or depiction by
8 computer which includes a child whom the person knows or
9 reasonably should know to be under the age of 18 or a
10 severely or profoundly intellectually disabled person
11 engaged in any activity described in subparagraphs (i)
12 through (vii) of paragraph (1) of this subsection; or
13 (4) solicits, uses, persuades, induces, entices, or
14 coerces any child whom he or she knows or reasonably should
15 know to be under the age of 18 or a severely or profoundly
16 intellectually disabled person to appear in any stage play,
17 live presentation, film, videotape, photograph or other
18 similar visual reproduction or depiction by computer in
19 which the child or severely or profoundly intellectually
20 disabled person is or will be depicted, actually or by
21 simulation, in any act, pose or setting described in
22 subparagraphs (i) through (vii) of paragraph (1) of this
23 subsection; or
24 (5) is a parent, step-parent, legal guardian or other
25 person having care or custody of a child whom the person
26 knows or reasonably should know to be under the age of 18

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1 or a severely or profoundly intellectually disabled person
2 and who knowingly permits, induces, promotes, or arranges
3 for such child or severely or profoundly intellectually
4 disabled person to appear in any stage play, live
5 performance, film, videotape, photograph or other similar
6 visual presentation, portrayal or simulation or depiction
7 by computer of any act or activity described in
8 subparagraphs (i) through (vii) of paragraph (1) of this
9 subsection; or
10 (6) with knowledge of the nature or content thereof,
11 possesses any film, videotape, photograph or other similar
12 visual reproduction or depiction by computer of any child
13 or severely or profoundly intellectually disabled person
14 whom the person knows or reasonably should know to be under
15 the age of 18 or to be a severely or profoundly
16 intellectually disabled person, engaged in any activity
17 described in subparagraphs (i) through (vii) of paragraph
18 (1) of this subsection; or
19 (7) solicits, or knowingly uses, persuades, induces,
20 entices, or coerces, a person to provide a child under the
21 age of 18 or a severely or profoundly intellectually
22 disabled person to appear in any videotape, photograph,
23 film, stage play, live presentation, or other similar
24 visual reproduction or depiction by computer in which the
25 child or severely or profoundly intellectually disabled
26 person will be depicted, actually or by simulation, in any

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1 act, pose, or setting described in subparagraphs (i)
2 through (vii) of paragraph (1) of this subsection.
3 (b) (1) It shall be an affirmative defense to a charge of
4 child pornography that the defendant reasonably believed,
5 under all of the circumstances, that the child was 18 years
6 of age or older or that the person was not a severely or
7 profoundly intellectually disabled person but only where,
8 prior to the act or acts giving rise to a prosecution under
9 this Section, he or she took some affirmative action or
10 made a bonafide inquiry designed to ascertain whether the
11 child was 18 years of age or older or that the person was
12 not a severely or profoundly intellectually disabled
13 person and his or her reliance upon the information so
14 obtained was clearly reasonable.
15 (1.5) Telecommunications carriers, commercial mobile
16 service providers, and providers of information services,
17 including, but not limited to, Internet service providers
18 and hosting service providers, are not liable under this
19 Section by virtue of the transmission, storage, or caching
20 of electronic communications or messages of others or by
21 virtue of the provision of other related
22 telecommunications, commercial mobile services, or
23 information services used by others in violation of this
24 Section.
25 (2) (Blank).
26 (3) The charge of child pornography shall not apply to

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1 the performance of official duties by law enforcement or
2 prosecuting officers or persons employed by law
3 enforcement or prosecuting agencies, court personnel or
4 attorneys, nor to bonafide treatment or professional
5 education programs conducted by licensed physicians,
6 psychologists or social workers.
7 (4) (Blank). If the defendant possessed more than one
8 of the same film, videotape or visual reproduction or
9 depiction by computer in which child pornography is
10 depicted, then the trier of fact may infer that the
11 defendant possessed such materials with the intent to
12 disseminate them.
13 (5) The charge of child pornography does not apply to a
14 person who does not voluntarily possess a film, videotape,
15 or visual reproduction or depiction by computer in which
16 child pornography is depicted. Possession is voluntary if
17 the defendant knowingly procures or receives a film,
18 videotape, or visual reproduction or depiction for a
19 sufficient time to be able to terminate his or her
20 possession.
21 (6) Any violation of paragraph (1), (2), (3), (4), (5),
22 or (7) of subsection (a) that includes a child engaged in,
23 solicited for, depicted in, or posed in any act of sexual
24 penetration or bound, fettered, or subject to sadistic,
25 masochistic, or sadomasochistic abuse in a sexual context
26 shall be deemed a crime of violence.

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1 (c) If the violation does not involve a film, videotape, or
2other moving depiction, a violation of paragraph (1), (4), (5),
3or (7) of subsection (a) is a Class 1 felony with a mandatory
4minimum fine of $2,000 and a maximum fine of $100,000. If the
5violation involves a film, videotape, or other moving
6depiction, a violation of paragraph (1), (4), (5), or (7) of
7subsection (a) is a Class X felony with a mandatory minimum
8fine of $2,000 and a maximum fine of $100,000. If the violation
9does not involve a film, videotape, or other moving depiction,
10a violation of paragraph (3) of subsection (a) is a Class 1
11felony with a mandatory minimum fine of $1500 and a maximum
12fine of $100,000. If the violation involves a film, videotape,
13or other moving depiction, a violation of paragraph (3) of
14subsection (a) is a Class X felony with a mandatory minimum
15fine of $1500 and a maximum fine of $100,000. If the violation
16does not involve a film, videotape, or other moving depiction,
17a violation of paragraph (2) of subsection (a) is a Class 1
18felony with a mandatory minimum fine of $1000 and a maximum
19fine of $100,000. If the violation involves a film, videotape,
20or other moving depiction, a violation of paragraph (2) of
21subsection (a) is a Class X felony with a mandatory minimum
22fine of $1000 and a maximum fine of $100,000. If the violation
23does not involve a film, videotape, or other moving depiction,
24a violation of paragraph (6) of subsection (a) is a Class 3
25felony with a mandatory minimum fine of $1000 and a maximum
26fine of $100,000. If the violation involves a film, videotape,

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1or other moving depiction, a violation of paragraph (6) of
2subsection (a) is a Class 2 felony with a mandatory minimum
3fine of $1000 and a maximum fine of $100,000. Violation of
4paragraph (6) of subsection (a) is a Class X felony for which
5the defendant shall be sentenced to a term of imprisonment of
6not less than 9 years and not more than 40 years if the
7defendant possessed more than one of the same film, videotape
8or visual reproduction or depiction by computer in which child
9pornography is depicted.
10 (c-5) Where the child depicted is under the age of 13, a
11violation of paragraph (1), (2), (3), (4), (5), or (7) of
12subsection (a) is a Class X felony with a mandatory minimum
13fine of $2,000 and a maximum fine of $100,000. Where the child
14depicted is under the age of 13, a violation of paragraph (6)
15of subsection (a) is a Class 2 felony with a mandatory minimum
16fine of $1,000 and a maximum fine of $100,000. Where the child
17depicted is under the age of 13, a person who commits a
18violation of paragraph (1), (2), (3), (4), (5), or (7) of
19subsection (a) where the defendant has previously been
20convicted under the laws of this State or any other state of
21the offense of child pornography, aggravated child
22pornography, aggravated criminal sexual abuse, aggravated
23criminal sexual assault, predatory criminal sexual assault of a
24child, or any of the offenses formerly known as rape, deviate
25sexual assault, indecent liberties with a child, or aggravated
26indecent liberties with a child where the victim was under the

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1age of 18 years or an offense that is substantially equivalent
2to those offenses, is guilty of a Class X felony for which the
3person shall be sentenced to a term of imprisonment of not less
4than 9 years with a mandatory minimum fine of $2,000 and a
5maximum fine of $100,000. Where the child depicted is under the
6age of 13, a person who commits a violation of paragraph (6) of
7subsection (a) where the defendant has previously been
8convicted under the laws of this State or any other state of
9the offense of child pornography, aggravated child
10pornography, aggravated criminal sexual abuse, aggravated
11criminal sexual assault, predatory criminal sexual assault of a
12child, or any of the offenses formerly known as rape, deviate
13sexual assault, indecent liberties with a child, or aggravated
14indecent liberties with a child where the victim was under the
15age of 18 years or an offense that is substantially equivalent
16to those offenses, is guilty of a Class 1 felony with a
17mandatory minimum fine of $1,000 and a maximum fine of
18$100,000. The issue of whether the child depicted is under the
19age of 13 is an element of the offense to be resolved by the
20trier of fact.
21 (d) If a person is convicted of a second or subsequent
22violation of this Section within 10 years of a prior
23conviction, the court shall order a presentence psychiatric
24examination of the person. The examiner shall report to the
25court whether treatment of the person is necessary.
26 (e) Any film, videotape, photograph or other similar visual

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1reproduction or depiction by computer which includes a child
2under the age of 18 or a severely or profoundly intellectually
3disabled person engaged in any activity described in
4subparagraphs (i) through (vii) or paragraph 1 of subsection
5(a), and any material or equipment used or intended for use in
6photographing, filming, printing, producing, reproducing,
7manufacturing, projecting, exhibiting, depiction by computer,
8or disseminating such material shall be seized and forfeited in
9the manner, method and procedure provided by Section 36-1 of
10this Code for the seizure and forfeiture of vessels, vehicles
11and aircraft.
12 In addition, any person convicted under this Section is
13subject to the property forfeiture provisions set forth in
14Article 124B of the Code of Criminal Procedure of 1963.
15 (e-5) Upon the conclusion of a case brought under this
16Section, the court shall seal all evidence depicting a victim
17or witness that is sexually explicit. The evidence may be
18unsealed and viewed, on a motion of the party seeking to unseal
19and view the evidence, only for good cause shown and in the
20discretion of the court. The motion must expressly set forth
21the purpose for viewing the material. The State's attorney and
22the victim, if possible, shall be provided reasonable notice of
23the hearing on the motion to unseal the evidence. Any person
24entitled to notice of a hearing under this subsection (e-5) may
25object to the motion.
26 (f) Definitions. For the purposes of this Section:

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1 (1) "Disseminate" means (i) to sell, distribute,
2 exchange or transfer possession, whether with or without
3 consideration or (ii) to make a depiction by computer
4 available for distribution or downloading through the
5 facilities of any telecommunications network or through
6 any other means of transferring computer programs or data
7 to a computer.
8 (2) "Produce" means to direct, promote, advertise,
9 publish, manufacture, issue, present or show.
10 (3) "Reproduce" means to make a duplication or copy.
11 (4) "Depict by computer" means to generate or create,
12 or cause to be created or generated, a computer program or
13 data that, after being processed by a computer either alone
14 or in conjunction with one or more computer programs,
15 results in a visual depiction on a computer monitor,
16 screen, or display.
17 (5) "Depiction by computer" means a computer program or
18 data that, after being processed by a computer either alone
19 or in conjunction with one or more computer programs,
20 results in a visual depiction on a computer monitor,
21 screen, or display.
22 (6) "Computer", "computer program", and "data" have
23 the meanings ascribed to them in Section 16D-2 of this
24 Code.
25 (7) For the purposes of this Section, "child
26 pornography" includes a film, videotape, photograph, or

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1 other similar visual medium or reproduction or depiction by
2 computer that is, or appears to be, that of a person,
3 either in part, or in total, under the age of 18 or a
4 severely or profoundly intellectually disabled person,
5 regardless of the method by which the film, videotape,
6 photograph, or other similar visual medium or reproduction
7 or depiction by computer is created, adopted, or modified
8 to appear as such. "Child pornography" also includes a
9 film, videotape, photograph, or other similar visual
10 medium or reproduction or depiction by computer that is
11 advertised, promoted, presented, described, or distributed
12 in such a manner that conveys the impression that the film,
13 videotape, photograph, or other similar visual medium or
14 reproduction or depiction by computer is of a person under
15 the age of 18 or a severely or profoundly intellectually
16 disabled person.
17 (g) Re-enactment; findings; purposes.
18 (1) The General Assembly finds and declares that:
19 (i) Section 50-5 of Public Act 88-680, effective
20 January 1, 1995, contained provisions amending the
21 child pornography statute, Section 11-20.1 of the
22 Criminal Code of 1961. Section 50-5 also contained
23 other provisions.
24 (ii) In addition, Public Act 88-680 was entitled
25 "AN ACT to create a Safe Neighborhoods Law". (A)
26 Article 5 was entitled JUVENILE JUSTICE and amended the

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1 Juvenile Court Act of 1987. (B) Article 15 was entitled
2 GANGS and amended various provisions of the Criminal
3 Code of 1961 and the Unified Code of Corrections. (C)
4 Article 20 was entitled ALCOHOL ABUSE and amended
5 various provisions of the Illinois Vehicle Code. (D)
6 Article 25 was entitled DRUG ABUSE and amended the
7 Cannabis Control Act and the Illinois Controlled
8 Substances Act. (E) Article 30 was entitled FIREARMS
9 and amended the Criminal Code of 1961 and the Code of
10 Criminal Procedure of 1963. (F) Article 35 amended the
11 Criminal Code of 1961, the Rights of Crime Victims and
12 Witnesses Act, and the Unified Code of Corrections. (G)
13 Article 40 amended the Criminal Code of 1961 to
14 increase the penalty for compelling organization
15 membership of persons. (H) Article 45 created the
16 Secure Residential Youth Care Facility Licensing Act
17 and amended the State Finance Act, the Juvenile Court
18 Act of 1987, the Unified Code of Corrections, and the
19 Private Correctional Facility Moratorium Act. (I)
20 Article 50 amended the WIC Vendor Management Act, the
21 Firearm Owners Identification Card Act, the Juvenile
22 Court Act of 1987, the Criminal Code of 1961, the
23 Wrongs to Children Act, and the Unified Code of
24 Corrections.
25 (iii) On September 22, 1998, the Third District
26 Appellate Court in People v. Dainty, 701 N.E. 2d 118,

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1 ruled that Public Act 88-680 violates the single
2 subject clause of the Illinois Constitution (Article
3 IV, Section 8 (d)) and was unconstitutional in its
4 entirety. As of the time this amendatory Act of 1999
5 was prepared, People v. Dainty was still subject to
6 appeal.
7 (iv) Child pornography is a vital concern to the
8 people of this State and the validity of future
9 prosecutions under the child pornography statute of
10 the Criminal Code of 1961 is in grave doubt.
11 (2) It is the purpose of this amendatory Act of 1999 to
12 prevent or minimize any problems relating to prosecutions
13 for child pornography that may result from challenges to
14 the constitutional validity of Public Act 88-680 by
15 re-enacting the Section relating to child pornography that
16 was included in Public Act 88-680.
17 (3) This amendatory Act of 1999 re-enacts Section
18 11-20.1 of the Criminal Code of 1961, as it has been
19 amended. This re-enactment is intended to remove any
20 question as to the validity or content of that Section; it
21 is not intended to supersede any other Public Act that
22 amends the text of the Section as set forth in this
23 amendatory Act of 1999. The material is shown as existing
24 text (i.e., without underscoring) because, as of the time
25 this amendatory Act of 1999 was prepared, People v. Dainty
26 was subject to appeal to the Illinois Supreme Court.

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1 (4) The re-enactment by this amendatory Act of 1999 of
2 Section 11-20.1 of the Criminal Code of 1961 relating to
3 child pornography that was amended by Public Act 88-680 is
4 not intended, and shall not be construed, to imply that
5 Public Act 88-680 is invalid or to limit or impair any
6 legal argument concerning whether those provisions were
7 substantially re-enacted by other Public Acts.
8(Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10;
996-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-157, eff.
101-1-12; 97-227, eff. 1-1-12; 97-995, eff. 1-1-13; 97-1109, eff.
111-1-13.)
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