Public Act 094-0366
 
HB1173 Enrolled LRB094 05102 RLC 35141 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 the offense of 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
    knows or reasonably should know to be under the age of 18
    or any severely or profoundly mentally retarded person
    where such child or severely or profoundly mentally
    retarded 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
        mentally retarded 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 mentally retarded 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 mentally retarded person whom the person knows
    or reasonably should know to be under the age of 18 or to
    be a severely or profoundly mentally retarded 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 or a
    severely or profoundly mentally retarded 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 knows or reasonably should know
    to be under the age of 18 or a severely or profoundly
    mentally retarded 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 mentally retarded 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
    or a severely or profoundly mentally retarded person and
    who knowingly permits, induces, promotes, or arranges for
    such child or severely or profoundly mentally retarded
    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 mentally retarded person whom the
    person knows or reasonably should know to be under the age
    of 18 or to be a severely or profoundly mentally retarded
    person, engaged in any activity described in subparagraphs
    (i) through (vii) of paragraph (1) of this subsection; or
        (7) solicits, uses, persuades, induces, entices, or
    coerces a person to provide a child under the age of 18 or
    a severely or profoundly mentally retarded 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 mentally retarded 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 mentally retarded person but only where, prior
    to the act or acts giving rise to a prosecution under this
    Section, he 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 mentally retarded person and his reliance
    upon the information so obtained was clearly reasonable.
        (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) 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.
        (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.
    (c) 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. 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.
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. 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.
    (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 or a severely or profoundly mentally
retarded 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.
    (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) "Child" 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,
    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" 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.
        (8) "Sexual penetration" and "sexual conduct" have the
    meanings ascribed to them in Section 12-12 of this Code.
    (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. 91-54, eff. 6-30-99; 91-229, eff. 1-1-00; 91-357,
eff. 7-29-99; 92-16, eff. 6-28-01; 92-434, eff. 1-1-02; 92-827,
eff. 8-22-02.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.