|
| Public Act 097-0995
|
| HB5235 Enrolled | LRB097 16476 RLC 61644 b |
|
|
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 |
|
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 |
|
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
|
|
(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
|
|
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 |
|
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 |
|
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, |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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 |
|
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.
|
