093_HB3091eng

 
HB3091 Engrossed                     LRB093 08195 LRD 08402 b

 1        AN ACT in relation to criminal matters.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 5.  The Criminal  Code  of  1961  is  amended  by
 5    changing Sections 10-1 and 10-5 as follows:

 6        (720 ILCS 5/10-1) (from Ch. 38, par. 10-1)
 7        Sec.  10-1.   Kidnapping.)   (a) Kidnapping occurs when a
 8    person knowingly:
 9        (1)  And secretly confines another against his will, or
10        (2)  By force or threat of imminent force carries another
11    from one place to another with intent secretly to confine him
12    against his will, or
13        (3)  By deceit or enticement induces another to  go  from
14    one  place  to  another  with  intent secretly to confine him
15    against his will.
16        (b)  Confinement of a child under the age of 13 years  is
17    against  his  will within the meaning of this Section if such
18    confinement is without the consent of  his  parent  or  legal
19    guardian.
20        (c)  Sentence.
21        Kidnapping  is  a  Class  2 felony.  If, in the course of
22    committing kidnapping against a child under 16 years of  age,
23    the  defendant  commits  a forcible felony against the child,
24    commits a violation of Section 11-6, 11-9,  11-9.1,  11-15.1,
25    11-20.1,  12-13, 12-14, 12-14.1, 12-15, or 12-16, or attempts
26    to commit a  violation  of  Section  12-13,  12-14,  12-14.1,
27    12-15, or 12-16 against the child, the defendant shall not be
28    eligible for probation.
29    (Source: P.A. 79-765.)

30        (720 ILCS 5/10-5) (from Ch. 38, par. 10-5)
 
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 1        Sec. 10-5.  Child Abduction.
 2        (a)  For  purposes  of  this Section, the following terms
 3    shall have the following meanings:
 4             (1)  "Child" means a person under the age of 18 or a
 5        severely or profoundly mentally retarded  person  at  the
 6        time the alleged violation occurred; and
 7             (2)  "Detains"  means  taking  or retaining physical
 8        custody of a child, whether or not the child  resists  or
 9        objects; and
10             (3)  "Lawful  custodian"  means  a person or persons
11        granted legal custody of a child or entitled to  physical
12        possession  of  a child pursuant to a court order.  It is
13        presumed that, when the parties have never  been  married
14        to  each other, the mother has legal custody of the child
15        unless a valid  court  order  states  otherwise.   If  an
16        adjudication  of  paternity  has  been  completed and the
17        father  has  been   assigned   support   obligations   or
18        visitation rights, such a paternity order should, for the
19        purposes  of  this  Section  be  considered a valid court
20        order granting custody to the mother.
21        (b)  A person commits child abduction when he or she:
22             (1)  Intentionally violates any  terms  of  a  valid
23        court  order  granting  sole  or  joint  custody, care or
24        possession to another, by  concealing  or  detaining  the
25        child  or removing the child from the jurisdiction of the
26        court; or
27             (2)  Intentionally   violates    a    court    order
28        prohibiting  the  person from concealing or detaining the
29        child or removing the child from the jurisdiction of  the
30        court; or
31             (3)  Intentionally  conceals, detains or removes the
32        child  without  the  consent  of  the  mother  or  lawful
33        custodian of the child if the person is a putative father
34        and either: (A) the paternity of the child has  not  been
 
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 1        legally established or (B) the paternity of the child has
 2        been  legally  established  but  no  orders  relating  to
 3        custody  have  been entered. However, notwithstanding the
 4        presumption created by paragraph (3) of subsection (a), a
 5        mother commits child  abduction  when  she  intentionally
 6        conceals  or  removes  a child, whom she has abandoned or
 7        relinquished custody of, from an unadjudicated father who
 8        has provided sole ongoing care and custody of  the  child
 9        in her absence; or
10             (4)  Intentionally  conceals  or  removes  the child
11        from a parent after filing a  petition  or  being  served
12        with process in an action affecting marriage or paternity
13        but  prior  to the issuance of a temporary or final order
14        determining custody; or
15             (5)  At the expiration of visitation rights  outside
16        the  State,  intentionally  fails or refuses to return or
17        impedes the return of the child to the  lawful  custodian
18        in Illinois; or
19             (6)  Being  a  parent  of  the  child, and where the
20        parents of such child are or have been married and  there
21        has  been  no  court order of custody, conceals the child
22        for 15 days, and fails to make reasonable attempts within
23        the 15 day period to notify the other parent  as  to  the
24        specific  whereabouts  of the child, including a means by
25        which to contact such child,  or  to  arrange  reasonable
26        visitation  or  contact  with  the  child.  It  is  not a
27        violation of this Section for a person  fleeing  domestic
28        violence  to  take  the  child with him or her to housing
29        provided by a domestic violence program; or
30             (7)  Being a parent of  the  child,  and  where  the
31        parents  of  the child are or have been married and there
32        has been no court order of custody, conceals, detains, or
33        removes the  child  with  physical  force  or  threat  of
34        physical force; or
 
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 1             (8)  Conceals,  detains,  or  removes  the child for
 2        payment or promise of payment at  the  instruction  of  a
 3        person who has no legal right to custody; or
 4             (9)  Retains  in  this  State  for  30  days a child
 5        removed from another state without  the  consent  of  the
 6        lawful  custodian  or in violation of a valid court order
 7        of custody; or
 8             (10)  Intentionally lures  or  attempts  to  lure  a
 9        child under the age of 16 into a motor vehicle, building,
10        housetrailer,  or  dwelling  place without the consent of
11        the parent or lawful custodian of  the  child  for  other
12        than a lawful purpose.
13        For  the purposes of this subsection (b), paragraph (10),
14    the luring or attempted luring of a child under the age of 16
15    into a motor vehicle,  building,  housetrailer,  or  dwelling
16    place  without  the consent of the parent or lawful custodian
17    of the child shall be prima facie evidence of  other  than  a
18    lawful purpose.
19        (c)  It shall be an affirmative defense that:
20             (1)  The person had custody of the child pursuant to
21        a court order granting legal custody or visitation rights
22        which existed at the time of the alleged violation; or
23             (2)  The  person  had  physical custody of the child
24        pursuant to a  court  order  granting  legal  custody  or
25        visitation  rights  and  failed  to return the child as a
26        result of circumstances beyond his or  her  control,  and
27        the  person notified and disclosed to the other parent or
28        legal custodian the specific whereabouts of the child and
29        a means by which such child can be contacted  or  made  a
30        reasonable  attempt  to notify the other parent or lawful
31        custodian of the child of  such  circumstances  and  make
32        such  disclosure  within  24  hours  after the visitation
33        period had expired and returned  the  child  as  soon  as
34        possible; or
 
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 1             (3)  The  person was fleeing an incidence or pattern
 2        of domestic violence; or
 3             (4)  The person lured or attempted to lure  a  child
 4        under  the  age  of  16  into  a motor vehicle, building,
 5        housetrailer, or dwelling place for a lawful  purpose  in
 6        prosecutions under subsection (b), paragraph (10).
 7        (d)  Except as otherwise provided in this subsection (d),
 8    a  person  convicted of child abduction under this Section is
 9    guilty of a Class 4 felony.  Except as otherwise provided  in
10    this  subsection  (d),  a  person  convicted  of  a second or
11    subsequent violation of paragraph (10) of subsection  (b)  of
12    this  Section  is  guilty  of  a  Class  3  felony.  A person
13    convicted of child abduction for  a  violation  of  paragraph
14    (10)  of  subsection (b) of this Section is guilty of a Class
15    2, non-probationable felony if, in the course  of  committing
16    child  abduction,  the  defendant  commits  a forcible felony
17    against the child, commits a violation of Section 11-6, 11-9,
18    11-9.1, 11-15.1, 11-20.1, 12-13, 12-14,  12-14.1,  12-15,  or
19    12-16,  or  attempts  to commit a violation of Section 12-13,
20    12-14, 12-14.1, 12-15, or 12-16 against the child.  It  shall
21    be  a  factor  in  aggravation for which a court may impose a
22    more severe sentence under Section 5-8-1 of the Unified  Code
23    of  Corrections,  if upon sentencing the court finds evidence
24    of any of the following aggravating factors:
25             (1)  that the  defendant  abused  or  neglected  the
26        child  following the concealment, detention or removal of
27        the child; or
28             (2)  that the defendant inflicted or  threatened  to
29        inflict  physical harm on a parent or lawful custodian of
30        the child or on the  child  with  intent  to  cause  such
31        parent   or  lawful  custodian  to  discontinue  criminal
32        prosecution of the defendant under this Section; or
33             (3)  that the defendant demanded payment in exchange
34        for return of the child or demanded that  he  or  she  be
 
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 1        relieved  of the financial or legal obligation to support
 2        the child in exchange for return of the child; or
 3             (4)  that  the   defendant   has   previously   been
 4        convicted of child abduction; or
 5             (5)  that  the  defendant  committed  the  abduction
 6        while  armed  with  a  deadly weapon or the taking of the
 7        child resulted in serious bodily injury to another; or
 8             (6)  that  the  defendant  committed  the  abduction
 9        while in a school, regardless of the time of day or  time
10        of  year;  in  a  playground;  on  any  conveyance owned,
11        leased, or contracted by a school to  transport  students
12        to  or  from  school or a school related activity; on the
13        real property of a school; or  on  a  public  way  within
14        1,000  feet of the real property comprising any school or
15        playground.   For  purposes  of   this   paragraph   (6),
16        "playground" means a piece of land owned or controlled by
17        a unit of local government that is designated by the unit
18        of  local  government  for  use  solely  or primarily for
19        children's recreation; and "school"  means  a  public  or
20        private   elementary   or   secondary  school,  community
21        college, college, or university.
22        (e)  The court may order the child to be returned to  the
23    parent or lawful custodian from whom the child was concealed,
24    detained  or  removed.   In addition to any sentence imposed,
25    the court may  assess  any  reasonable  expense  incurred  in
26    searching  for  or  returning  the  child  against any person
27    convicted of violating this Section.
28        (f)  Nothing contained in this Section shall be construed
29    to limit the court's contempt power.
30        (g)  Every  law  enforcement  officer  investigating   an
31    alleged  incident  of  child  abduction  shall make a written
32    police report of any bona fide allegation and the disposition
33    of  such  investigation.   Every  police   report   completed
34    pursuant  to  this  Section  shall  be  compiled and recorded
 
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 1    within the meaning of Section 5.1 of "An Act in  relation  to
 2    criminal  identification and investigation", approved July 2,
 3    1931, as now or hereafter amended.
 4        (h)  Whenever a law enforcement officer  has  reasons  to
 5    believe  a child abduction has occurred, he shall provide the
 6    lawful custodian a summary of her or his  rights  under  this
 7    Act,  including the procedures and relief available to her or
 8    him.
 9        (i)  If during the course of an investigation under  this
10    Section  the  child  is  found in the physical custody of the
11    defendant or  another,  the  law  enforcement  officer  shall
12    return  the child to the parent or lawful custodian from whom
13    the child was concealed, detained or removed, unless there is
14    good cause for the law enforcement officer or the  Department
15    of   Children   and   Family  Services  to  retain  temporary
16    protective custody of the child pursuant to  the  Abused  and
17    Neglected Child Reporting Act, as now or hereafter amended.
18    (Source: P.A. 92-434, eff. 1-1-02.)