SB2349 95TH GENERAL ASSEMBLY

LRB095 19641 RLC 45985 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
SB2349

Introduced 2/14/2008, by Sen. A. J. Wilhelmi

SYNOPSIS AS INTRODUCED:

See Index

Amends the Criminal Code of 1961. Provides that it is unlawful for a child sex offender to knowingly communicate, using the Internet or any other digital media, with a person under 18 years of age or with a person whom he or she believes to be a person under 18 years of age, unless the offender is a parent or guardian of the person under 18 years of age. Provides that a person over the age of 18 who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes to, or sends, or causes to be sent, or exhibits to, or offers to distribute, or exhibits any harmful material to a person that he or she believes is a minor is guilty of a Class A misdemeanor. If that person utilized a computer web camera, cellular telephone, or any other type of device to manufacture the harmful material, then each offense is a Class 4 felony. Provides that the offense of child photography by a sex offender applies even if the offender does not conduct or operate a photography business. Provides that a child sex offender who photographs, videotapes, or takes a digital image of a child at a playground, park facility, school, forest preserve, day care facility, or at a facility providing programs or services directed to persons under 17 years of age is guilty of a Class 1 felony. Creates the offense of unlawful sending of a public conveyance travel ticket to a minor. Creates the offense of solicitation to meet a child. Creates the offense of manufacturing child erotica.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

A BILL FOR

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 Sections 11-9.4, 11-21, and 11-24 and by adding Sections 10-8.1, 11-6.6, and 11-20.4 as follows:

(720 ILCS 5/10-8.1 new)

Sec. 10-8.1. Unlawful sending of a public conveyance travel ticket to a minor.

(a) In this Section, "public conveyance" has the meaning ascribed to it in Section 10-8 of this Code.

(b) A person commits the offense of unlawful sending of a public conveyance travel ticket to a minor when the person without the consent of the minor's parent or guardian:

(1) knowingly sends, causes to be sent, or purchases a public conveyance travel ticket to any location for a person known by the offender to be an unemancipated minor under 17 years of age or a person he or she believes to be a minor under 17 years of age; or

(2) knowingly arranges for travel to any location on any public conveyance for a person known by the offender to be an unemancipated minor under 17 years of age or a person he or she believes to be a minor under 17 years of age.

(c) Sentence. Unlawful sending of a public conveyance travel ticket to a minor is a Class A misdemeanor. A person who commits unlawful sending of a public conveyance travel ticket to a minor who believes that he or she is at least 5 years older than the minor is guilty of a Class 4 felony.

(720 ILCS 5/11-6.6 new)

Sec. 11-6.6. Solicitation to meet a child.

(a) A person of the age of 18 or more years commits the offense of solicitation to meet a child if the person while using a computer, cellular telephone, or any other device, with the intent to meet a child or one whom he or she believes to be a child, solicits, entices, induces, or arranges with the child to meet at a location without the knowledge of the child's parent or guardian.

(b) Sentence. Solicitation to meet a child is a Class A misdemeanor. Solicitation to meet a child is a Class 4 felony when the solicitor believes he or she is 5 or more years older than the child.

(c) For purposes of this Section, "child" means any person under 17 years of age; and "computer" has the meaning ascribed to it in Section 16D-2 of this Code.

(720 ILCS 5/11-9.4)

(Text of Section after amendment by P.A. 95-640)

Sec. 11-9.4. Approaching, contacting, residing, or communicating with a child within certain places by child sex offenders prohibited.

(a) It is unlawful for a child sex offender to knowingly be present in any public park building or on real property comprising any public park when persons under the age of 18 are present in the building or on the grounds and to approach, contact, or communicate with a child under 18 years of age, unless the offender is a parent or guardian of a person under 18 years of age present in the building or on the grounds.

(b) It is unlawful for a child sex offender to knowingly loiter on a public way within 500 feet of a public park building or real property comprising any public park while persons under the age of 18 are present in the building or on the grounds and to approach, contact, or communicate with a child under 18 years of age, unless the offender is a parent or guardian of a person under 18 years of age present in the building or on the grounds.

(b-5) It is unlawful for a child sex offender to knowingly reside within 500 feet of a playground, child care institution, day care center, part day child care facility, or a facility providing programs or services exclusively directed toward persons under 18 years of age. Nothing in this subsection (b-5) prohibits a child sex offender from residing within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age if the property is owned by the child sex offender and was purchased before the effective date of this amendatory Act of the 91st General Assembly. Nothing in this subsection (b-5) prohibits a child sex offender from residing within 500 feet of a child care institution, day care center, or part day child care facility if the property is owned by the child sex offender and was purchased before the effective date of this amendatory Act of the 94th General Assembly.

(b-6) It is unlawful for a child sex offender to knowingly reside within 500 feet of the victim of the sex offense. Nothing in this subsection (b-6) prohibits a child sex offender from residing within 500 feet of the victim if the property in which the child sex offender resides is owned by the child sex offender and was purchased before the effective date of this amendatory Act of the 92nd General Assembly.

This subsection (b-6) does not apply if the victim of the sex offense is 21 years of age or older.

(b-7) It is unlawful for a child sex offender to knowingly communicate, using the Internet or any other digital media, with a person under 18 years of age or with a person whom he or she believes to be a person under 18 years of age, unless the offender is a parent or guardian of the person under 18 years of age.

(c) It is unlawful for a child sex offender to knowingly operate, manage, be employed by, volunteer at, be associated with, or knowingly be present at any: (i) facility providing programs or services exclusively directed towards persons under the age of 18; (ii) day care center; (iii) part day child care facility; (iv) child care institution, or (v) school providing before and after school programs for children under 18 years of age. This does not prohibit a child sex offender from owning the real property upon which the programs or services are offered or upon which the day care center, part day child care facility, child care institution, or school providing before and after school programs for children under 18 years of age is located, provided the child sex offender refrains from being present on the premises for the hours during which: (1) the programs or services are being offered or (2) the day care center, part day child care facility, child care institution, or school providing before and after school programs for children under 18 years of age is operated.

(c-5) It is unlawful for a child sex offender to knowingly operate, manage, be employed by, or be associated with any county fair when persons under the age of 18 are present.

(d) Definitions. In this Section:

(1) "Child sex offender" means any person who:

(i) has been charged under Illinois law, or any substantially similar federal law or law of another state, with a sex offense set forth in paragraph (2) of this subsection (d) or the attempt to commit an included sex offense, and:

(A) is convicted of such offense or an attempt to commit such offense; or

(B) is found not guilty by reason of insanity of such offense or an attempt to commit such offense; or

(C) is found not guilty by reason of insanity pursuant to subsection (c) of Section 104-25 of the Code of Criminal Procedure of 1963 of such offense or an attempt to commit such offense; or

(D) is the subject of a finding not resulting in an acquittal at a hearing conducted pursuant to subsection (a) of Section 104-25 of the Code of Criminal Procedure of 1963 for the alleged commission or attempted commission of such offense; or

(E) is found not guilty by reason of insanity following a hearing conducted pursuant to a federal law or the law of another state substantially similar to subsection (c) of Section 104-25 of the Code of Criminal Procedure of 1963 of such offense or of the attempted commission of such offense; or

(F) is the subject of a finding not resulting in an acquittal at a hearing conducted pursuant to a federal law or the law of another state substantially similar to subsection (a) of Section 104-25 of the Code of Criminal Procedure of 1963 for the alleged violation or attempted commission of such offense; or

(ii) is certified as a sexually dangerous person pursuant to the Illinois Sexually Dangerous Persons Act, or any substantially similar federal law or the law of another state, when any conduct giving rise to such certification is committed or attempted against a person less than 18 years of age; or

(iii) is subject to the provisions of Section 2 of the Interstate Agreements on Sexually Dangerous Persons Act.

Convictions that result from or are connected with the same act, or result from offenses committed at the same time, shall be counted for the purpose of this Section as one conviction. Any conviction set aside pursuant to law is not a conviction for purposes of this Section.

(2) Except as otherwise provided in paragraph (2.5), "sex offense" means:

(i) A violation of any of the following Sections of the Criminal Code of 1961: 10-7 (aiding and abetting child abduction under Section 10-5(b)(10)), 10-5(b)(10) (child luring), 11-6 (indecent solicitation of a child), 11-6.5 (indecent solicitation of an adult), 11-9 (public indecency when committed in a school, on the real property comprising a school, on a conveyance owned, leased, or contracted by a school to transport students to or from school or a school related activity, or in a public park), 11-9.1 (sexual exploitation of a child), 11-15.1 (soliciting for a juvenile prostitute), 11-17.1 (keeping a place of juvenile prostitution), 11-18.1 (patronizing a juvenile prostitute), 11-19.1 (juvenile pimping), 11-19.2 (exploitation of a child), 11-20.1 (child pornography), 11-20.3 (aggravated child pornography), 11-21 (harmful material), 12-14.1 (predatory criminal sexual assault of a child), 12-33 (ritualized abuse of a child), 11-20 (obscenity) (when that offense was committed in any school, on real property comprising any school, on any conveyance owned, leased, or contracted by a school to transport students to or from school or a school related activity, or in a public park). An attempt to commit any of these offenses.

(ii) A violation of any of the following Sections of the Criminal Code of 1961, when the victim is a person under 18 years of age: 12-13 (criminal sexual assault), 12-14 (aggravated criminal sexual assault), 12-15 (criminal sexual abuse), 12-16 (aggravated criminal sexual abuse). An attempt to commit any of these offenses.

(iii) A violation of any of the following Sections of the Criminal Code of 1961, when the victim is a person under 18 years of age and the defendant is not a parent of the victim:

10-1 (kidnapping),

10-2 (aggravated kidnapping),

10-3 (unlawful restraint),

10-3.1 (aggravated unlawful restraint).

An attempt to commit any of these offenses.

(iv) A violation of any former law of this State substantially equivalent to any offense listed in clause (2)(i) of this subsection (d).

(2.5) For the purposes of subsection (b-5) only, a sex offense means:

(i) A violation of any of the following Sections of the Criminal Code of 1961:

10-5(b)(10) (child luring), 10-7 (aiding and abetting child abduction under Section 10-5(b)(10)), 11-6 (indecent solicitation of a child), 11-6.5 (indecent solicitation of an adult), 11-15.1 (soliciting for a juvenile prostitute), 11-17.1 (keeping a place of juvenile prostitution), 11-18.1 (patronizing a juvenile prostitute), 11-19.1 (juvenile pimping), 11-19.2 (exploitation of a child), 11-20.1 (child pornography), 11-20.3 (aggravated child pornography), 12-14.1 (predatory criminal sexual assault of a child), or 12-33 (ritualized abuse of a child). An attempt to commit any of these offenses.

(ii) A violation of any of the following Sections of the Criminal Code of 1961, when the victim is a person under 18 years of age: 12-13 (criminal sexual assault), 12-14 (aggravated criminal sexual assault), 12-16 (aggravated criminal sexual abuse), and subsection (a) of Section 12-15 (criminal sexual abuse). An attempt to commit any of these offenses.

(iii) A violation of any of the following Sections of the Criminal Code of 1961, when the victim is a person under 18 years of age and the defendant is not a parent of the victim:

10-1 (kidnapping),

10-2 (aggravated kidnapping),

10-3 (unlawful restraint),

10-3.1 (aggravated unlawful restraint).

An attempt to commit any of these offenses.

(iv) A violation of any former law of this State substantially equivalent to any offense listed in this paragraph (2.5) of this subsection.

(3) A conviction for an offense of federal law or the law of another state that is substantially equivalent to any offense listed in paragraph (2) of this subsection (d) shall constitute a conviction for the purpose of this Section. A finding or adjudication as a sexually dangerous person under any federal law or law of another state that is substantially equivalent to the Sexually Dangerous Persons Act shall constitute an adjudication for the purposes of this Section.

(4) "Public park" includes a park, forest preserve, or conservation area under the jurisdiction of the State or a unit of local government.

(5) "Facility providing programs or services directed towards persons under the age of 18" means any facility providing programs or services exclusively directed towards persons under the age of 18.

(6) "Loiter" means:

(i) Standing, sitting idly, whether or not the person is in a vehicle or remaining in or around public park property.

(ii) Standing, sitting idly, whether or not the person is in a vehicle or remaining in or around public park property, for the purpose of committing or attempting to commit a sex offense.

(7) "Playground" means a piece of land owned or controlled by a unit of local government that is designated by the unit of local government for use solely or primarily for children's recreation.

(8) "Child care institution" has the meaning ascribed to it in Section 2.06 of the Child Care Act of 1969.

(9) "Day care center" has the meaning ascribed to it in Section 2.09 of the Child Care Act of 1969.

(10) "Part day child care facility" has the meaning ascribed to it in Section 2.10 of the Child Care Act of 1969.

(11) "Internet" means an interactive computer service or system or an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, and includes, but is not limited to, an information service, system, or access software provider that provides access to a network system commonly known as the Internet, or any comparable system or service and also includes, but is not limited to, a World Wide Web page, newsgroup, message board, mailing list, or chat area on any interactive computer service or system or other online service.

(e) Sentence. A person who violates this Section is guilty of a Class 4 felony.

(Source: P.A. 94-925, eff. 6-26-06; 95-32, eff. 1-1-08; 95-640, eff. 6-1-08; revised 10-30-07.)

(720 ILCS 5/11-20.4 new)

Sec. 11-20.4. Manufacturing child erotica.

(a) In this Section:

"Child" means a person under 17 years of age.

"Child erotica" means any photograph, videotape, or digital image of a child in which the focus or concentration of the photograph, videotape, or digital image is the child's clothed genitals, the child's pubic area, the child's buttocks area or, if the child is female, the breast exposed through transparent clothing.

(b) A person 18 years of age or over commits the offense of manufacturing child erotica if he or she knowingly manufactures child erotica without the knowledge and consent of the child's parent or guardian.

(c) Sentence. Manufacturing child erotica is a Class A misdemeanor. Manufacturing child erotica is a Class 4 felony if the child erotica is manufactured at a playground, park facility, school, forest preserve, day care facility, or a facility providing programs or services directed to persons under 17 years of age.

(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.

(g) A person over the age of 18 who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes to, or sends, or causes to be sent, or exhibits to, or offers to distribute, or exhibits any harmful material to a person that he or she believes is a minor is guilty of a Class A misdemeanor. If that person utilized a computer web camera, cellular telephone, or any other type of device to manufacture the harmful material, then each offense is a Class 4 felony.

(Source: P.A. 94-315, eff. 1-1-06.)

(720 ILCS 5/11-24)

Sec. 11-24. Child photography by sex offender.

(a) In this Section:

"Child" means a person under 18 years of age.

"Child sex offender" has the meaning ascribed to it in Section 11-9.3 of this Code.

(b) It is unlawful for a child sex offender to knowingly:

(1) photograph, videotape, or take conduct or operate any type of business in which he or she photographs, videotapes, or takes a digital image of a child; or

(2) instruct or direct conduct or operate any type of business in which he or she instructs or directs another person to photograph, videotape, or take a digital image of a child.

(c) Sentence. A violation of this Section is a Class 2 felony. A person who violates this Section at a playground, park facility, school, forest preserve, day care facility, or at a facility providing programs or services directed to persons under 17 years of age is guilty of a Class 1 felony.

(Source: P.A. 93-905, eff. 1-1-05.)