Bill Text: IL HB5235 | 2011-2012 | 97th General Assembly | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Amends the Criminal Code of 1961. Repeals provision creating the offense of aggravated child pornography. In the statute creating child pornography, provides for enhanced penalties if the child depicted is under the age of 13. Provides that the issue of whether the child depicted is under the age of 13 is an element of the offense to be resolved by the trier of fact.

Spectrum: Partisan Bill (Democrat 15-0)

Status: (Passed) 2012-08-17 - Public Act . . . . . . . . . 97-0995 [HB5235 Detail]

Download: Illinois-2011-HB5235-Engrossed.html

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AN ACT concerning criminal law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Criminal Code of 1961 is amended by changing
Section 11-20.1 as follows:
(720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
Sec. 11-20.1. Child pornography.
(a) A person commits child pornography who:
(1) films, videotapes, photographs, or otherwise
depicts or portrays by means of any similar visual medium
or reproduction or depicts by computer any child whom he or
she knows or reasonably should know to be under the age of
18 and at least 13 years of age or any severely or
profoundly intellectually disabled person where such child
or severely or profoundly intellectually disabled person
is:
(i) actually or by simulation engaged in any act of
sexual penetration or sexual conduct with any person or
animal; or
(ii) actually or by simulation engaged in any act
of sexual penetration or sexual conduct involving the
sex organs of the child or severely or profoundly
intellectually disabled person and the mouth, anus, or

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sex organs of another person or animal; or which
involves the mouth, anus or sex organs of the child or
severely or profoundly intellectually disabled person
and the sex organs of another person or animal; or
(iii) actually or by simulation engaged in any act
of masturbation; or
(iv) actually or by simulation portrayed as being
the object of, or otherwise engaged in, any act of lewd
fondling, touching, or caressing involving another
person or animal; or
(v) actually or by simulation engaged in any act of
excretion or urination within a sexual context; or
(vi) actually or by simulation portrayed or
depicted as bound, fettered, or subject to sadistic,
masochistic, or sadomasochistic abuse in any sexual
context; or
(vii) depicted or portrayed in any pose, posture or
setting involving a lewd exhibition of the unclothed or
transparently clothed genitals, pubic area, buttocks,
or, if such person is female, a fully or partially
developed breast of the child or other person; or
(2) with the knowledge of the nature or content
thereof, reproduces, disseminates, offers to disseminate,
exhibits or possesses with intent to disseminate any film,
videotape, photograph or other similar visual reproduction
or depiction by computer of any child or severely or

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profoundly intellectually disabled person whom the person
knows or reasonably should know to be under the age of 18
and at least 13 years of age or to be a severely or
profoundly intellectually disabled person, engaged in any
activity described in subparagraphs (i) through (vii) of
paragraph (1) of this subsection; or
(3) with knowledge of the subject matter or theme
thereof, produces any stage play, live performance, film,
videotape or other similar visual portrayal or depiction by
computer which includes a child whom the person knows or
reasonably should know to be under the age of 18 and at
least 13 years of age or a severely or profoundly
intellectually disabled person engaged in any activity
described in subparagraphs (i) through (vii) of paragraph
(1) of this subsection; or
(4) solicits, uses, persuades, induces, entices, or
coerces any child whom he or she knows or reasonably should
know to be under the age of 18 and at least 13 years of age
or a severely or profoundly intellectually disabled person
to appear in any stage play, live presentation, film,
videotape, photograph or other similar visual reproduction
or depiction by computer in which the child or severely or
profoundly intellectually disabled person is or will be
depicted, actually or by simulation, in any act, pose or
setting described in subparagraphs (i) through (vii) of
paragraph (1) of this subsection; or

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(5) is a parent, step-parent, legal guardian or other
person having care or custody of a child whom the person
knows or reasonably should know to be under the age of 18
and at least 13 years of age or a severely or profoundly
intellectually disabled person and who knowingly permits,
induces, promotes, or arranges for such child or severely
or profoundly intellectually disabled person to appear in
any stage play, live performance, film, videotape,
photograph or other similar visual presentation, portrayal
or simulation or depiction by computer of any act or
activity described in subparagraphs (i) through (vii) of
paragraph (1) of this subsection; or
(6) with knowledge of the nature or content thereof,
possesses any film, videotape, photograph or other similar
visual reproduction or depiction by computer of any child
or severely or profoundly intellectually disabled person
whom the person knows or reasonably should know to be under
the age of 18 and at least 13 years of age or to be a
severely or profoundly intellectually disabled person,
engaged in any activity described in subparagraphs (i)
through (vii) of paragraph (1) of this subsection; or
(7) solicits, or knowingly uses, persuades, induces,
entices, or coerces, a person to provide a child under the
age of 18 and at least 13 years of age or a severely or
profoundly intellectually disabled person to appear in any
videotape, photograph, film, stage play, live

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presentation, or other similar visual reproduction or
depiction by computer in which the child or severely or
profoundly intellectually disabled person will be
depicted, actually or by simulation, in any act, pose, or
setting described in subparagraphs (i) through (vii) of
paragraph (1) of this subsection.
(b) (1) It shall be an affirmative defense to a charge of
child pornography that the defendant reasonably believed,
under all of the circumstances, that the child was 18 years
of age or older or that the person was not a severely or
profoundly intellectually disabled person but only where,
prior to the act or acts giving rise to a prosecution under
this Section, he or she took some affirmative action or
made a bonafide inquiry designed to ascertain whether the
child was 18 years of age or older or that the person was
not a severely or profoundly intellectually disabled
person and his or her reliance upon the information so
obtained was clearly reasonable.
(1.5) Telecommunications carriers, commercial mobile
service providers, and providers of information services,
including, but not limited to, Internet service providers
and hosting service providers, are not liable under this
Section by virtue of the transmission, storage, or caching
of electronic communications or messages of others or by
virtue of the provision of other related
telecommunications, commercial mobile services, or

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information services used by others in violation of this
Section.
(2) (Blank).
(3) The charge of child pornography shall not apply to
the performance of official duties by law enforcement or
prosecuting officers or persons employed by law
enforcement or prosecuting agencies, court personnel or
attorneys, nor to bonafide treatment or professional
education programs conducted by licensed physicians,
psychologists or social workers.
(4) If the defendant possessed more than one of the
same film, videotape or visual reproduction or depiction by
computer in which child pornography is depicted, then the
trier of fact may infer that the defendant possessed such
materials with the intent to disseminate them.
(5) The charge of child pornography does not apply to a
person who does not voluntarily possess a film, videotape,
or visual reproduction or depiction by computer in which
child pornography is depicted. Possession is voluntary if
the defendant knowingly procures or receives a film,
videotape, or visual reproduction or depiction for a
sufficient time to be able to terminate his or her
possession.
(6) Any violation of paragraph (1), (2), (3), (4), (5),
or (7) of subsection (a) that includes a child engaged in,
solicited for, depicted in, or posed in any act of sexual

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penetration or bound, fettered, or subject to sadistic,
masochistic, or sadomasochistic abuse in a sexual context
shall be deemed a crime of violence.
(c) If the violation does not involve a film, videotape, or
other moving depiction, a violation of paragraph (1), (4), (5),
or (7) of subsection (a) is a Class 1 felony with a mandatory
minimum fine of $2,000 and a maximum fine of $100,000. If the
violation involves a film, videotape, or other moving
depiction, a violation of paragraph (1), (4), (5), or (7) of
subsection (a) is a Class X felony with a mandatory minimum
fine of $2,000 and a maximum fine of $100,000. If the violation
does not involve a film, videotape, or other moving depiction,
a violation of paragraph (3) of subsection (a) is a Class 1
felony with a mandatory minimum fine of $1500 and a maximum
fine of $100,000. If the violation involves a film, videotape,
or other moving depiction, a violation of paragraph (3) of
subsection (a) is a Class X felony with a mandatory minimum
fine of $1500 and a maximum fine of $100,000. If the violation
does not involve a film, videotape, or other moving depiction,
a violation of paragraph (2) of subsection (a) is a Class 1
felony with a mandatory minimum fine of $1000 and a maximum
fine of $100,000. If the violation involves a film, videotape,
or other moving depiction, a violation of paragraph (2) of
subsection (a) is a Class X felony with a mandatory minimum
fine of $1000 and a maximum fine of $100,000. If the violation
does not involve a film, videotape, or other moving depiction,

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a violation of paragraph (6) of subsection (a) is a Class 3
felony with a mandatory minimum fine of $1000 and a maximum
fine of $100,000. If the violation involves a film, videotape,
or other moving depiction, a violation of paragraph (6) of
subsection (a) is a Class 2 felony with a mandatory minimum
fine of $1000 and a maximum fine of $100,000.
(c-5) Where the child depicted is under the age of 13, a
violation of paragraph (1), (2), (3), (4), (5), or (7) of
subsection (a) is a Class X felony with a mandatory minimum
fine of $2,000 and a maximum fine of $100,000. Where the child
depicted is under the age of 13, a violation of paragraph (6)
of subsection (a) is a Class 2 felony with a mandatory minimum
fine of $1,000 and a maximum fine of $100,000. Where the child
depicted is under the age of 13, a person who commits a
violation of paragraph (1), (2), (3), (4), (5), or (7) of
subsection (a) where the defendant has previously been
convicted under the laws of this State or any other state of
the offense of child pornography, aggravated child
pornography, aggravated criminal sexual abuse, aggravated
criminal sexual assault, predatory criminal sexual assault of a
child, or any of the offenses formerly known as rape, deviate
sexual assault, indecent liberties with a child, or aggravated
indecent liberties with a child where the victim was under the
age of 18 years or an offense that is substantially equivalent
to those offenses, is guilty of a Class X felony for which the
person shall be sentenced to a term of imprisonment of not less

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than 9 years with a mandatory minimum fine of $2,000 and a
maximum fine of $100,000. Where the child depicted is under the
age of 13, a person who commits a violation of paragraph (6) of
subsection (a) where the defendant has previously been
convicted under the laws of this State or any other state of
the offense of child pornography, aggravated child
pornography, aggravated criminal sexual abuse, aggravated
criminal sexual assault, predatory criminal sexual assault of a
child, or any of the offenses formerly known as rape, deviate
sexual assault, indecent liberties with a child, or aggravated
indecent liberties with a child where the victim was under the
age of 18 years or an offense that is substantially equivalent
to those offenses, is guilty of a Class 1 felony with a
mandatory minimum fine of $1,000 and a maximum fine of
$100,000. The issue of whether the child depicted is under the
age of 13 is an element of the offense to be resolved by the
trier of fact.
(d) If a person is convicted of a second or subsequent
violation of this Section within 10 years of a prior
conviction, the court shall order a presentence psychiatric
examination of the person. The examiner shall report to the
court whether treatment of the person is necessary.
(e) Any film, videotape, photograph or other similar visual
reproduction or depiction by computer which includes a child
under the age of 18 and at least 13 years of age or a severely
or profoundly intellectually disabled person engaged in any

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activity described in subparagraphs (i) through (vii) or
paragraph 1 of subsection (a), and any material or equipment
used or intended for use in photographing, filming, printing,
producing, reproducing, manufacturing, projecting, exhibiting,
depiction by computer, or disseminating such material shall be
seized and forfeited in the manner, method and procedure
provided by Section 36-1 of this Code for the seizure and
forfeiture of vessels, vehicles and aircraft.
In addition, any person convicted under this Section is
subject to the property forfeiture provisions set forth in
Article 124B of the Code of Criminal Procedure of 1963.
(e-5) Upon the conclusion of a case brought under this
Section, the court shall seal all evidence depicting a victim
or witness that is sexually explicit. The evidence may be
unsealed and viewed, on a motion of the party seeking to unseal
and view the evidence, only for good cause shown and in the
discretion of the court. The motion must expressly set forth
the purpose for viewing the material. The State's attorney and
the victim, if possible, shall be provided reasonable notice of
the hearing on the motion to unseal the evidence. Any person
entitled to notice of a hearing under this subsection (e-5) may
object to the motion.
(f) Definitions. For the purposes of this Section:
(1) "Disseminate" means (i) to sell, distribute,
exchange or transfer possession, whether with or without
consideration or (ii) to make a depiction by computer

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available for distribution or downloading through the
facilities of any telecommunications network or through
any other means of transferring computer programs or data
to a computer.
(2) "Produce" means to direct, promote, advertise,
publish, manufacture, issue, present or show.
(3) "Reproduce" means to make a duplication or copy.
(4) "Depict by computer" means to generate or create,
or cause to be created or generated, a computer program or
data that, after being processed by a computer either alone
or in conjunction with one or more computer programs,
results in a visual depiction on a computer monitor,
screen, or display.
(5) "Depiction by computer" means a computer program or
data that, after being processed by a computer either alone
or in conjunction with one or more computer programs,
results in a visual depiction on a computer monitor,
screen, or display.
(6) "Computer", "computer program", and "data" have
the meanings ascribed to them in Section 16D-2 of this
Code.
(7) For the purposes of this Section, "child
pornography" includes a film, videotape, photograph, or
other similar visual medium or reproduction or depiction by
computer that is, or appears to be, that of a person,
either in part, or in total, under the age of 18 and at

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least 13 years of age or a severely or profoundly
intellectually disabled mentally retarded person,
regardless of the method by which the film, videotape,
photograph, or other similar visual medium or reproduction
or depiction by computer is created, adopted, or modified
to appear as such. "Child pornography" also includes a
film, videotape, photograph, or other similar visual
medium or reproduction or depiction by computer that is
advertised, promoted, presented, described, or distributed
in such a manner that conveys the impression that the film,
videotape, photograph, or other similar visual medium or
reproduction or depiction by computer is of a person under
the age of 18 and at least 13 years of age or a severely or
profoundly intellectually disabled mentally retarded
person.
(g) Re-enactment; findings; purposes.
(1) The General Assembly finds and declares that:
(i) Section 50-5 of Public Act 88-680, effective
January 1, 1995, contained provisions amending the
child pornography statute, Section 11-20.1 of the
Criminal Code of 1961. Section 50-5 also contained
other provisions.
(ii) In addition, Public Act 88-680 was entitled
"AN ACT to create a Safe Neighborhoods Law". (A)
Article 5 was entitled JUVENILE JUSTICE and amended the
Juvenile Court Act of 1987. (B) Article 15 was entitled

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GANGS and amended various provisions of the Criminal
Code of 1961 and the Unified Code of Corrections. (C)
Article 20 was entitled ALCOHOL ABUSE and amended
various provisions of the Illinois Vehicle Code. (D)
Article 25 was entitled DRUG ABUSE and amended the
Cannabis Control Act and the Illinois Controlled
Substances Act. (E) Article 30 was entitled FIREARMS
and amended the Criminal Code of 1961 and the Code of
Criminal Procedure of 1963. (F) Article 35 amended the
Criminal Code of 1961, the Rights of Crime Victims and
Witnesses Act, and the Unified Code of Corrections. (G)
Article 40 amended the Criminal Code of 1961 to
increase the penalty for compelling organization
membership of persons. (H) Article 45 created the
Secure Residential Youth Care Facility Licensing Act
and amended the State Finance Act, the Juvenile Court
Act of 1987, the Unified Code of Corrections, and the
Private Correctional Facility Moratorium Act. (I)
Article 50 amended the WIC Vendor Management Act, the
Firearm Owners Identification Card Act, the Juvenile
Court Act of 1987, the Criminal Code of 1961, the
Wrongs to Children Act, and the Unified Code of
Corrections.
(iii) On September 22, 1998, the Third District
Appellate Court in People v. Dainty, 701 N.E. 2d 118,
ruled that Public Act 88-680 violates the single

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

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Section 11-20.1 of the Criminal Code of 1961 relating to
child pornography that was amended by Public Act 88-680 is
not intended, and shall not be construed, to imply that
Public Act 88-680 is invalid or to limit or impair any
legal argument concerning whether those provisions were
substantially re-enacted by other Public Acts.
(Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10;
96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-157, eff.
1-1-12; 97-227, eff. 1-1-12; revised 9-12-11.)
(720 ILCS 5/11-20.1B rep.)
Section 10. The Criminal Code of 1961 is amended by
repealing Section 11-20.1B.