HB4023sam001 94TH GENERAL ASSEMBLY

Sen. Deanna Demuzio

Filed: 5/3/2005

09400HB4023sam001 LRB094 11300 RLC 45736 a

AMENDMENT TO HOUSE BILL 4023

AMENDMENT NO. ______. Amend House Bill 4023 by replacing everything after the enacting clause with the following:

"Section 5. The Criminal Code of 1961 is amended by changing Section 11-21 and by adding Articles 12A and 12B as follows:

(720 ILCS 5/11-21) (from Ch. 38, par. 11-21)

Sec. 11-21. Harmful material.

(a) As used in this Section:

"Distribute" means transfer possession of, whether with or without consideration.

"Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when, taken as a whole, it (i) predominately appeals to the prurient interest in sex of minors, (ii) is patently offensive to prevailing standards in the adult community in the State as a whole with respect to what is suitable material for minors, and (iii) lacks serious literary, artistic, political, or scientific value for minors.

"Knowingly" means having knowledge of the contents of the subject matter, or recklessly failing to exercise reasonable inspection which would have disclosed the contents.

"Material" means (i) any picture, photograph, drawing, sculpture, film, video game, computer game, video or similar visual depiction, including any such representation or image which is stored electronically, or (ii) any book, magazine, printed matter however reproduced, or recorded audio of any sort.

"Minor" means any person under the age of 18.

"Nudity" means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion below the top of the nipple, or the depiction of covered male genitals in a discernably turgid state.

"Sado-masochistic abuse" means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one clothed for sexual gratification or stimulation.

"Sexual conduct" means acts of masturbation, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast.

"Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(b) A person is guilty of distributing harmful material to a minor when he or she:

(1) knowingly sells, lends, distributes, or gives away to a minor, knowing that the minor is under the age of 18 or failing to exercise reasonable care in ascertaining the person's true age:

(A) any material which depicts nudity, sexual conduct or sado-masochistic abuse, or which contains explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse, and which taken as a whole is harmful to minors;

(B) a motion picture, show, or other presentation which depicts nudity, sexual conduct or sado-masochistic abuse and is harmful to minors; or

(C) an admission ticket or pass to premises where there is exhibited or to be exhibited such a motion picture, show, or other presentation; or

(2) admits a minor to premises where there is exhibited or to be exhibited such a motion picture, show, or other presentation, knowing that the minor is a person under the age of 18 or failing to exercise reasonable care in ascertaining the person's true age.

(c) In any prosecution arising under this Section, it is an affirmative defense:

(1) that the minor as to whom the offense is alleged to have been committed exhibited to the accused a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that the minor was 18 years of age or older, which was relied upon by the accused;

(2) that the defendant was in a parental or guardianship relationship with the minor or that the minor was accompanied by a parent or legal guardian;

(3) that the defendant was a bona fide school, museum, or public library, or was a person acting in the course of his or her employment as an employee or official of such organization or retail outlet affiliated with and serving the educational purpose of such organization;

(4) that the act charged was committed in aid of legitimate scientific or educational purposes; or

(5) that an advertisement of harmful material as defined in this Section culminated in the sale or distribution of such harmful material to a child under circumstances where there was no personal confrontation of the child by the defendant, his employees, or agents, as where the order or request for such harmful material was transmitted by mail, telephone, Internet or similar means of communication, and delivery of such harmful material to the child was by mail, freight, Internet or similar means of transport, which advertisement contained the following statement, or a substantially similar statement, and that the defendant required the purchaser to certify that he or she was not under the age of 18 and that the purchaser falsely stated that he or she was not under the age of 18: "NOTICE: It is unlawful for any person under the age of 18 to purchase the matter advertised. Any person under the age of 18 that falsely states that he or she is not under the age of 18 for the purpose of obtaining the material advertised is guilty of a Class B misdemeanor under the laws of the State."

(d) The predominant appeal to prurient interest of the material shall be judged with reference to average children of the same general age of the child to whom such material was sold, lent, distributed or given, unless it appears from the nature of the matter or the circumstances of its dissemination or distribution that it is designed for specially susceptible groups, in which case the predominant appeal of the material shall be judged with reference to its intended or probable recipient group.

(e) Distribution of harmful material in violation of this Section is a Class A misdemeanor. A second or subsequent offense is a Class 4 felony.

(f) Any person under the age of 18 that falsely states, either orally or in writing, that he or she is not under the age of 18, or that presents or offers to any person any evidence of age and identity that is false or not actually his or her own for the purpose of ordering, obtaining, viewing, or otherwise procuring or attempting to procure or view any harmful material is guilty of a Class B misdemeanor.

(a) Elements of the Offense.

A person who, with knowledge that a person is a child, that is a person under 18 years of age, or who fails to exercise reasonable care in ascertaining the true age of a child, knowingly distributes to or sends or causes to be sent to, or exhibits to, or offers to distribute or exhibit any harmful material to a child, is guilty of a misdemeanor.

(b) Definitions.

(1) Material is harmful if, to the average person, applying contemporary standards, its predominant appeal, taken as a whole, is to prurient interest, that is a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters, and is material the redeeming social importance of which is substantially less than its prurient appeal.

(2) Material, as used in this Section means any writing, picture, record or other representation or embodiment.

(3) Distribute means to transfer possession of, whether with or without consideration.

(4) Knowingly, as used in this section means having knowledge of the contents of the subject matter, or recklessly failing to exercise reasonable inspection which would have disclosed the contents thereof.

(c) Interpretation of Evidence.

The predominant appeal to prurient interest of the material shall be judged with reference to average children of the same general age of the child to whom such material was offered, distributed, sent or exhibited, unless it appears from the nature of the matter or the circumstances of its dissemination, distribution or exhibition that it is designed for specially susceptible groups, in which case the predominant appeal of the material shall be judged with reference to its intended or probable recipient group.

In prosecutions under this section, where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate the material is being commercially exploited for the sake of its prurient appeal, such evidence is probative with respect to the nature of the material and can justify the conclusion that the redeeming social importance of the material is in fact substantially less than its prurient appeal.

(d) Sentence.

Distribution of harmful material in violation of this Section is a Class A misdemeanor. A second or subsequent offense is a Class 4 felony.

(e) Affirmative Defenses.

(1) Nothing in this section shall prohibit any public library or any library operated by an accredited institution of higher education from circulating harmful material to any person under 18 years of age, provided such circulation is in aid of a legitimate scientific or educational purpose, and it shall be an affirmative defense in any prosecution for a violation of this section that the act charged was committed in aid of legitimate scientific or educational purposes.

(2) Nothing in this section shall prohibit any parent from distributing to his child any harmful material.

(3) Proof that the defendant demanded, was shown and acted in reliance upon any of the following documents as proof of the age of a child, shall be a defense to any criminal prosecution under this section: A document issued by the federal government or any state, county or municipal government or subdivision or agency thereof, including, but not limited to, a motor vehicle operator's license, a registration certificate issued under the Federal Selective Service Act or an identification card issued to a member of the armed forces.

(4) In the event an advertisement of harmful material as defined in this section culminates in the sale or distribution of such harmful material to a child, under circumstances where there was no personal confrontation of the child by the defendant, his employees or agents, as where the order or request for such harmful material was transmitted by mail, telephone, or similar means of communication, and delivery of such harmful material to the child was by mail, freight, or similar means of transport, it shall be a defense in any prosecution for a violation of this section that the advertisement contained the following statement, or a statement substantially similar thereto, and that the defendant required the purchaser to certify that he was not under 18 years of age and that the purchaser falsely stated that he was not under 18 years of age: "NOTICE: It is unlawful for any person under 18 years of age to purchase the matter herein advertised. Any person under 18 years of age who falsely states that he is not under 18 years of age for the purpose of obtaining the material advertised herein, is guilty of a Class B misdemeanor under the laws of the State of Illinois."

(f) Child Falsifying Age.

Any person under 18 years of age who falsely states, either orally or in writing, that he is not under the age of 18 years, or who presents or offers to any person any evidence of age and identity which is false or not actually his own for the purpose of ordering, obtaining, viewing, or otherwise procuring or attempting to procure or view any harmful material, is guilty of a Class B misdemeanor.

(Source: P.A. 77-2638.)

(720 ILCS 5/Art. 12A heading new)

ARTICLE 12A. VIOLENT VIDEO GAMES

(720 ILCS 5/12A-1 new)

Sec. 12A-1. Short title. This Article may be cited as the Violent Video Games Law.

(720 ILCS 5/12A-5 new)

Sec. 12A-5. Findings.

(a) The General Assembly finds that minors who play violent video games are more likely to:

(1) Exhibit violent, asocial, or aggressive behavior.

(2) Experience feelings of aggression.

(3) Experience a reduction of activity in the frontal lobes of the brain which is responsible for controlling behavior.

(b) While the video game industry has adopted its own voluntary standards describing which games are appropriate for minors, those standards are not adequately enforced.

(c) Minors are capable of purchasing and do purchase violent video games.

(d) The State has a compelling interest in assisting parents in protecting their minor children from violent video games.

(e) The State has a compelling interest in preventing violent, aggressive, and asocial behavior.

(f) The State has a compelling interest in preventing psychological harm to minors who play violent video games.

(g) The State has a compelling interest in eliminating any societal factors that may inhibit the physiological and neurological development of its youth.

(h) The State has a compelling interest in facilitating the maturation of Illinois' children into law-abiding, productive adults.

(720 ILCS 5/12A-10 new)

Sec. 12A-10. Definitions. For the purposes of this Article, the following terms have the following meanings:

(a) "Video game retailer" means a person who sells or rents video games to the public.

(b) "Video game" means an object or device that stores recorded data or instructions, receives data or instructions generated by a person who uses it, and, by processing the data or instructions, creates an interactive game capable of being played, viewed, or experienced on or through a computer, gaming system, console, or other technology.

(c) "Minor" means a person under 18 years of age.

(d) "Person" includes but is not limited to an individual, corporation, partnership, and association.

(e) "Violent" video games include depictions of or simulations of human-on-human violence in which the player kills or otherwise causes serious physical harm to another human. "Serious physical harm" includes depictions of death, dismemberment, amputation, decapitation, maiming, disfigurement, mutilation of body parts, or rape.

(720 ILCS 5/12A-15 new)

Sec. 12A-15. Restricted sale or rental of violent video games.

(a) A person who sells, rents, or permits to be sold or rented, any violent video game to any minor, commits a business offense for which a fine of $1,001 may be imposed.

(b) A person who sells, rents, or permits to be sold or rented any violent video game via electronic scanner must program the electronic scanner to prompt sales clerks to check identification before the sale or rental transaction is completed. A person who violates this subsection (b) commits a business offense for which a fine of $1,001 may be imposed.

(c) A person may not sell or rent, or permit to be sold or rented, any violent video game through a self-scanning checkout mechanism. A person who violates this subsection (c) commits a business offense for which a fine of $1,001 may be imposed.

(720 ILCS 5/12A-20 new)

Sec. 12A-20. Affirmative defenses. In any prosecution arising under this Article, it is an affirmative defense:

(1) that the defendant was a family member of the minor for whom the game was purchased. "Family member" for the purpose of this Section, includes a parent, sibling, grandparent, aunt, uncle, or first cousin; or

(2) that the minor who purchased the game exhibited a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that the minor was 18 years of age or older, which the defendant reasonably relied on and reasonably believed to be authentic.

(720 ILCS 5/12A-25 new)

Sec. 12A-25. Labeling of violent video games.

(a) Video game retailers shall label all violent video games as defined in this Article, with a solid white "18" outlined in black. The "18" shall have dimensions of no less than 2 inches by 2 inches. The "18" shall be displayed on the front face of the video game package.

(b) A retailer's failure to comply with this Section is a petty offense punishable by a fine of $500 for the first 3 violations, and a business offense punishable by a fine of $1,001 for every subsequent violation.

(720 ILCS 5/Art. 12B heading new)

ARTICLE 12B. SEXUALLY EXPLICIT VIDEO GAMES

(720 ILCS 5/12B-1 new)

Sec. 12B-1. Short title. This Article may be cited as the Sexually Explicit Video Games Law.

(720 ILCS 5/12B-5 new)

Sec. 12B-5. Findings. The General Assembly finds sexually explicit video games inappropriate for minors and that the State has a compelling interest in assisting parents in protecting their minor children from sexually explicit video games.

(720 ILCS 5/12B-10 new)

Sec. 12B-10. Definitions. For the purposes of this Article, the following terms have the following meanings:

(a) "Video game retailer" means a person who sells or rents video games to the public.

(b) "Video game" means an object or device that stores recorded data or instructions, receives data or instructions generated by a person who uses it, and, by processing the data or instructions, creates an interactive game capable of being played, viewed, or experienced on or through a computer, gaming system, console, or other technology.

(c) "Minor" means a person under 18 years of age.

(d) "Person" includes but is not limited to an individual, corporation, partnership, and association.

(e) "Sexually explicit" video games include those that the average person, applying contemporary community standards would find, with respect to minors, is designed to appeal or pander to the prurient interest and depicts or represents in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act or a lewd exhibition of the genitals or post-pubescent female breast.

(720 ILCS 5/12B-15 new)

Sec. 12B-15. Restricted sale or rental of sexually explicit video games.

(a) A person who sells, rents, or permits to be sold or rented, any sexually explicit video game to any minor, commits a business offense for which a fine of $1,001 may be imposed.

(b) A person who sells, rents, or permits to be sold or rented any sexually explicit video game via electronic scanner must program the electronic scanner to prompt sales clerks to check identification before the sale or rental transaction is completed. A person who violates this subsection (b) commits a business offense for which a fine of $1,001 may be imposed.

(c) A person may not sell or rent, or permit to be sold or rented, any sexually explicit video game through a self-scanning checkout mechanism. A person who violates this subsection (c) commits a business offense for which a fine of $1,001 may be imposed.

(720 ILCS 5/12B-20 new)

Sec. 12B-20. Affirmative defenses. In any prosecution arising under this Article, it is an affirmative defense:

(1) that the defendant was a family member of the minor for whom the game was purchased. "Family member" for the purpose of this Section, includes a parent, sibling, grandparent, aunt, uncle, or first cousin; or

(2) that the minor who purchased the game exhibited a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that the minor was 18 years of age or older, which the defendant reasonably relied on and reasonably believed to be authentic.

(720 ILCS 5/12B-25 new)

Sec. 12B-25. Labeling of sexually explicit video games.

(a) Video game retailers shall label all sexually explicit video games as defined in this Act, with a solid white "18" outlined in black. The "18" shall have dimensions of no less than 2 inches by 2 inches. The "18" shall be displayed on the front face of the video game package.

(b) A retailer who fails to comply with this Section is guilty of a petty offense punishable by a fine of $500 for the first 3 violations, and a business offense punishable by a $1,001 fine for every subsequent violation.

(720 ILCS 5/12B-30 new)

Sec. 12B-30. Posting notification of video games rating system.

(a) A retailer who sells or rents video games shall post a sign that notifies customers that a video game rating system, created by the Entertainment Software Ratings Board, is available to aid in the selection of a game. The sign shall be prominently posted in, or within 5 feet of, the area in which games are displayed for sale or rental, at the information desk if one exists, and at the point of purchase.

(b) The lettering of each sign shall be printed, at a minimum, in 36-point type and shall be in black ink against a light colored background, with dimensions of no less than 18 by 24 inches.

(c) A retailer's failure to comply with this Section is a petty offense punishable by a fine of $500 for the first 3 violations, and a business offense punishable by a $1,001 fine for every subsequent violation.

(720 ILCS 5/12B-35 new)

Sec. 12B-35. Availability of brochure describing rating system.

(a) A video game retailer shall make available upon request a brochure to customers that explains the Entertainment Software Ratings Board ratings system.

(b) A retailer who fails to comply with this Section shall receive the punishment described in subsection (b) of Section 12B-25.

Section 98. Severability. If any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application of such provision to other persons or circumstances shall not be affected thereby.

Section 99. Effective Date. This Act takes effect January 1, 2006.".