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1 | AN ACT concerning criminal law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Criminal Code of 1961 is amended by changing | ||||||
5 | Section 11-20.1 as follows:
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6 | (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
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7 | Sec. 11-20.1. Child pornography.
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8 | (a) A person commits the offense of child pornography who:
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9 | (1) films, videotapes, photographs, or otherwise | ||||||
10 | depicts or portrays by
means of any similar visual medium | ||||||
11 | or reproduction or depicts by computer any
child whom he | ||||||
12 | knows or reasonably should know to be under the age of 18 | ||||||
13 | or any
severely or profoundly mentally retarded person | ||||||
14 | where such child or severely
or profoundly mentally | ||||||
15 | retarded person is:
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16 | (i) actually or by simulation engaged in any act of | ||||||
17 | sexual
penetration or sexual conduct
with any person or | ||||||
18 | animal; or
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19 | (ii) actually or by simulation engaged in any act | ||||||
20 | of sexual
penetration or sexual conduct
involving the | ||||||
21 | sex organs of the child or severely or
profoundly | ||||||
22 | mentally retarded person and the mouth, anus, or sex | ||||||
23 | organs of
another person or animal; or which involves | ||||||
24 | the mouth, anus or sex organs
of the child or severely | ||||||
25 | or profoundly mentally retarded
person and the sex | ||||||
26 | organs of another person or animal; or
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27 | (iii) actually or by simulation engaged in any act | ||||||
28 | of masturbation; or
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29 | (iv) actually or by simulation portrayed as being | ||||||
30 | the object of, or
otherwise engaged in, any act of lewd | ||||||
31 | fondling, touching, or caressing
involving another | ||||||
32 | person or animal; or
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1 | (v) actually or by simulation engaged in any act of | ||||||
2 | excretion or
urination within a sexual context; or
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3 | (vi) actually or by simulation portrayed or | ||||||
4 | depicted as bound, fettered,
or subject to sadistic, | ||||||
5 | masochistic, or sadomasochistic abuse in any sexual
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6 | context; or
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7 | (vii) depicted or portrayed in any pose, posture or | ||||||
8 | setting involving
a lewd exhibition of the unclothed or | ||||||
9 | transparently clothed genitals, pubic area, buttocks, | ||||||
10 | or, if
such person is female, a fully or partially | ||||||
11 | developed breast of the child
or other person; or
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12 | (2) with the knowledge of the nature or content | ||||||
13 | thereof, reproduces,
disseminates, offers to disseminate, | ||||||
14 | exhibits or possesses with intent to
disseminate any film, | ||||||
15 | videotape, photograph or other similar visual
reproduction | ||||||
16 | or depiction by computer of any child or severely or | ||||||
17 | profoundly
mentally retarded person whom the person knows | ||||||
18 | or reasonably should know to be
under the age of 18 or to | ||||||
19 | be a severely or profoundly mentally retarded person,
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20 | engaged in any activity described in subparagraphs (i) | ||||||
21 | through (vii) of
paragraph (1) of this subsection; or
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22 | (3) with knowledge of the subject matter or theme | ||||||
23 | thereof, produces any
stage play, live performance, film, | ||||||
24 | videotape or other similar visual
portrayal or depiction by | ||||||
25 | computer which
includes a child whom the person knows or | ||||||
26 | reasonably should
know to be under the age of 18 or a | ||||||
27 | severely or
profoundly mentally retarded person engaged in | ||||||
28 | any activity described in
subparagraphs (i) through (vii) | ||||||
29 | of paragraph (1) of this subsection; or
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30 | (4) solicits, uses, persuades, induces, entices, or | ||||||
31 | coerces any child
whom he knows or reasonably should know | ||||||
32 | to be under
the age of 18 or a severely or profoundly | ||||||
33 | mentally
retarded person to appear in any stage play, live | ||||||
34 | presentation, film,
videotape, photograph or other similar | ||||||
35 | visual reproduction or depiction
by computer in which the
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36 | child or severely or profoundly mentally retarded person
is |
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1 | or will be depicted, actually or by simulation, in any act, | ||||||
2 | pose or
setting described in subparagraphs (i) through | ||||||
3 | (vii) of paragraph (1) of
this subsection; or
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4 | (5) is a parent, step-parent, legal guardian or other | ||||||
5 | person having
care or custody
of a child whom the person | ||||||
6 | knows or reasonably should know to be under
the age of 18 | ||||||
7 | or a severely or profoundly mentally
retarded person and | ||||||
8 | who knowingly permits, induces, promotes, or arranges
for | ||||||
9 | such child or severely or profoundly mentally retarded
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10 | person to appear in any stage play, live performance, film, | ||||||
11 | videotape,
photograph or other similar visual | ||||||
12 | presentation, portrayal or simulation or
depiction by | ||||||
13 | computer of any act or activity described in subparagraphs | ||||||
14 | (i)
through (vii) of paragraph (1) of this subsection; or
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15 | (6) with knowledge of the nature or content thereof, | ||||||
16 | possesses any film,
videotape, photograph or other similar | ||||||
17 | visual reproduction or depiction by
computer of any child | ||||||
18 | or severely or profoundly mentally retarded person
whom the | ||||||
19 | person knows or reasonably should know to be under the age | ||||||
20 | of 18
or to be a severely or profoundly mentally retarded
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21 | person, engaged in any activity described in subparagraphs | ||||||
22 | (i) through
(vii) of paragraph (1) of this subsection; or
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23 | (7) solicits, uses, persuades, induces, entices, or | ||||||
24 | coerces a person
to provide a child under the age of 18 or | ||||||
25 | a severely or profoundly mentally
retarded person to appear | ||||||
26 | in any videotape, photograph, film, stage play, live
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27 | presentation, or other similar visual reproduction or | ||||||
28 | depiction by computer
in which the child or severely or | ||||||
29 | profoundly mentally retarded person will be
depicted, | ||||||
30 | actually or by simulation, in any act, pose, or setting | ||||||
31 | described in
subparagraphs (i) through (vii) of paragraph | ||||||
32 | (1) of this subsection.
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33 | (b) (1) It shall be an affirmative defense to a charge of | ||||||
34 | child
pornography that the defendant reasonably believed, | ||||||
35 | under all of the
circumstances, that the child was 18 years | ||||||
36 | of age or older or that the
person was not a severely or |
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1 | profoundly mentally
retarded person but only where, prior | ||||||
2 | to the act or acts giving rise to a
prosecution under this | ||||||
3 | Section, he took some affirmative action or made a
bonafide | ||||||
4 | inquiry designed to ascertain whether the child was 18 | ||||||
5 | years of
age or older or that the person was not a severely | ||||||
6 | or
profoundly mentally retarded person and his reliance | ||||||
7 | upon the information
so obtained was clearly reasonable.
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8 | (2) (Blank).
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9 | (3) The charge of child pornography shall not apply to | ||||||
10 | the performance
of official duties by law enforcement or | ||||||
11 | prosecuting officers or persons employed by law | ||||||
12 | enforcement or prosecuting agencies , court personnel
or | ||||||
13 | attorneys, nor to bonafide treatment or professional | ||||||
14 | education programs
conducted by licensed physicians, | ||||||
15 | psychologists or social workers.
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16 | (4) Possession by the defendant of more than one of the | ||||||
17 | same film,
videotape or visual reproduction or depiction by | ||||||
18 | computer in which child
pornography is depicted
shall raise | ||||||
19 | a rebuttable presumption that the defendant possessed such
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20 | materials with the intent to disseminate them.
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21 | (5) The charge of child pornography does not apply to a | ||||||
22 | person who does
not voluntarily possess a film, videotape, | ||||||
23 | or visual reproduction or depiction
by computer in which | ||||||
24 | child pornography is depicted. Possession is voluntary if
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25 | the defendant knowingly procures or receives a film, | ||||||
26 | videotape, or visual
reproduction or depiction for a | ||||||
27 | sufficient time to be able to terminate his
or her | ||||||
28 | possession.
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29 | (c) Violation of paragraph (1), (4), (5), or (7) of | ||||||
30 | subsection (a) is a
Class 1 felony with a mandatory minimum | ||||||
31 | fine of $2,000 and a maximum fine of
$100,000. Violation of | ||||||
32 | paragraph (3) of subsection (a) is a Class 1 felony
with a | ||||||
33 | mandatory minimum fine of $1500 and a maximum fine of $100,000.
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34 | Violation of paragraph (2) of subsection (a) is a Class 1 | ||||||
35 | felony with a
mandatory minimum fine of $1000 and a maximum | ||||||
36 | fine of $100,000. Violation of
paragraph (6) of subsection (a) |
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1 | is a Class 3 felony with a mandatory
minimum fine of $1000 and | ||||||
2 | a maximum fine of $100,000.
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3 | (d) If a person is convicted of a second or subsequent | ||||||
4 | violation of
this Section within 10 years of a prior | ||||||
5 | conviction, the court shall order a
presentence psychiatric | ||||||
6 | examination of the person. The examiner shall report
to the | ||||||
7 | court whether treatment of the person is necessary.
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8 | (e) Any film, videotape, photograph or other similar visual | ||||||
9 | reproduction
or depiction by computer which includes a child | ||||||
10 | under the age of 18 or a
severely or profoundly mentally | ||||||
11 | retarded person engaged in any activity
described in | ||||||
12 | subparagraphs (i) through (vii) or paragraph 1 of subsection
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13 | (a), and any material or equipment used or intended for use in | ||||||
14 | photographing,
filming, printing, producing, reproducing, | ||||||
15 | manufacturing, projecting,
exhibiting, depiction by computer, | ||||||
16 | or disseminating such material shall be
seized and forfeited in | ||||||
17 | the manner, method and procedure provided by Section
36-1 of | ||||||
18 | this Code for the seizure and forfeiture of vessels, vehicles | ||||||
19 | and
aircraft.
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20 | (e-5) Upon the conclusion of a case brought under this | ||||||
21 | Section, the court
shall seal all evidence depicting a victim | ||||||
22 | or witness that is sexually
explicit. The evidence may be | ||||||
23 | unsealed and viewed, on a motion of the party
seeking to unseal | ||||||
24 | and view the evidence, only for good cause shown and in the
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25 | discretion of the court. The motion must expressly set forth | ||||||
26 | the purpose for
viewing the material. The State's attorney and | ||||||
27 | the victim, if possible, shall
be provided reasonable notice of | ||||||
28 | the hearing on the motion to unseal the
evidence. Any person | ||||||
29 | entitled to notice of a hearing under this subsection
(e-5) may | ||||||
30 | object to the motion.
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31 | (f) Definitions. For the purposes of this Section:
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32 | (1) "Disseminate" means (i) to sell, distribute, | ||||||
33 | exchange or transfer
possession, whether with or without | ||||||
34 | consideration or (ii) to make a depiction
by computer | ||||||
35 | available for distribution or downloading through the | ||||||
36 | facilities
of any telecommunications network or through |
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1 | any other means of transferring
computer programs or data | ||||||
2 | to a computer.
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3 | (2) "Produce" means to direct, promote, advertise, | ||||||
4 | publish, manufacture,
issue, present or show.
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5 | (3) "Reproduce" means to make a duplication or copy.
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6 | (4) "Depict by computer" means to generate or create, | ||||||
7 | or cause to be
created or generated, a computer program or | ||||||
8 | data that, after being processed by
a computer either alone | ||||||
9 | or in conjunction with one or more computer programs,
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10 | results in a visual depiction on a computer monitor, | ||||||
11 | screen, or display.
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12 | (5) "Depiction by computer" means a computer program or | ||||||
13 | data that, after
being processed by a computer either alone | ||||||
14 | or in conjunction with one or more
computer programs, | ||||||
15 | results in a visual depiction on a computer monitor, | ||||||
16 | screen,
or display.
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17 | (6) "Computer", "computer program", and "data" have | ||||||
18 | the meanings
ascribed to them in Section 16D-2 of this | ||||||
19 | Code.
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20 | (7) "Child" includes a film, videotape, photograph, or | ||||||
21 | other similar
visual medium or reproduction or depiction by | ||||||
22 | computer that is, or appears to
be, that of a person, | ||||||
23 | either in part, or in total, under the age of 18,
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24 | regardless of the method by which the film, videotape, | ||||||
25 | photograph, or other
similar visual medium or reproduction | ||||||
26 | or depiction by computer is created,
adopted, or modified | ||||||
27 | to appear as such. "Child" also includes a film,
videotape, | ||||||
28 | photograph, or other similar visual medium or reproduction | ||||||
29 | or
depiction by computer that is advertised, promoted, | ||||||
30 | presented, described, or
distributed in such a manner that | ||||||
31 | conveys the impression that the film,
videotape, | ||||||
32 | photograph, or other similar visual medium or reproduction | ||||||
33 | or
depiction by computer is of a person under the age of | ||||||
34 | 18.
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35 | (8) "Sexual penetration" and "sexual conduct" have the | ||||||
36 | meanings ascribed
to them in Section 12-12 of this Code.
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1 | (g) Re-enactment; findings; purposes.
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2 | (1) The General Assembly finds and declares that:
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3 | (i) Section 50-5 of Public Act 88-680, effective | ||||||
4 | January 1, 1995,
contained provisions amending the | ||||||
5 | child pornography statute, Section 11-20.1
of the | ||||||
6 | Criminal Code of 1961. Section 50-5 also contained | ||||||
7 | other provisions.
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8 | (ii) In addition, Public Act 88-680 was entitled | ||||||
9 | "AN ACT to create a
Safe Neighborhoods Law". (A) | ||||||
10 | Article 5 was entitled JUVENILE JUSTICE and
amended the | ||||||
11 | Juvenile Court Act of 1987. (B) Article 15 was entitled | ||||||
12 | GANGS and
amended various provisions of the Criminal | ||||||
13 | Code of 1961 and the Unified Code
of Corrections. (C) | ||||||
14 | Article 20 was entitled ALCOHOL ABUSE and amended | ||||||
15 | various
provisions of the Illinois Vehicle Code. (D) | ||||||
16 | Article 25 was entitled DRUG
ABUSE and amended the | ||||||
17 | Cannabis Control Act and the Illinois Controlled
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18 | Substances Act. (E) Article 30 was entitled FIREARMS | ||||||
19 | and amended the Criminal
Code of 1961 and the Code of | ||||||
20 | Criminal Procedure of 1963. (F) Article 35
amended the | ||||||
21 | Criminal Code of 1961, the Rights of Crime Victims and | ||||||
22 | Witnesses
Act, and the Unified Code of Corrections. (G) | ||||||
23 | Article 40 amended the Criminal
Code of 1961 to | ||||||
24 | increase the penalty for compelling organization | ||||||
25 | membership of
persons. (H) Article 45 created the | ||||||
26 | Secure Residential Youth Care Facility
Licensing Act | ||||||
27 | and amended the State Finance Act, the Juvenile Court | ||||||
28 | Act of
1987, the Unified Code of Corrections, and the | ||||||
29 | Private Correctional Facility
Moratorium Act. (I) | ||||||
30 | Article 50 amended the WIC Vendor Management Act, the
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31 | Firearm Owners Identification Card Act, the Juvenile | ||||||
32 | Court Act of 1987, the
Criminal Code of 1961, the | ||||||
33 | Wrongs to Children Act, and the Unified Code of
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34 | Corrections.
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35 | (iii) On September 22, 1998, the Third District | ||||||
36 | Appellate Court in
People v. Dainty, 701 N.E. 2d 118, |
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1 | ruled that Public Act 88-680 violates the
single | ||||||
2 | subject clause of the Illinois Constitution (Article | ||||||
3 | IV, Section 8 (d))
and was unconstitutional in its | ||||||
4 | entirety. As of the time this amendatory Act
of 1999 | ||||||
5 | was prepared, People v. Dainty was still subject to | ||||||
6 | appeal.
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7 | (iv) Child pornography is a vital concern to the | ||||||
8 | people of this State
and the validity of future | ||||||
9 | prosecutions under the child pornography statute of
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10 | the Criminal Code of 1961 is in grave doubt.
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11 | (2) It is the purpose of this amendatory Act of 1999 to | ||||||
12 | prevent or
minimize any problems relating to prosecutions | ||||||
13 | for child pornography that may
result from challenges to | ||||||
14 | the constitutional validity of Public Act 88-680 by
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15 | re-enacting the Section relating to child pornography that | ||||||
16 | was included in
Public Act 88-680.
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17 | (3) This amendatory Act of 1999 re-enacts Section | ||||||
18 | 11-20.1 of the
Criminal Code of 1961, as it has been | ||||||
19 | amended. This re-enactment is intended
to remove any | ||||||
20 | question as to the validity or content of that Section; it | ||||||
21 | is not
intended to supersede any other Public Act that | ||||||
22 | amends the text of the Section
as set forth in this | ||||||
23 | amendatory Act of 1999. The material is shown as existing
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24 | text (i.e., without underscoring) because, as of the time | ||||||
25 | this amendatory Act
of 1999 was prepared, People v. Dainty | ||||||
26 | was subject to appeal to the Illinois
Supreme Court.
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27 | (4) The re-enactment by this amendatory Act of 1999 of | ||||||
28 | Section 11-20.1 of
the Criminal Code of 1961 relating to | ||||||
29 | child pornography that was amended by
Public Act 88-680 is | ||||||
30 | not intended, and shall not be construed, to imply that
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31 | Public Act 88-680 is invalid or to limit or impair any | ||||||
32 | legal argument
concerning whether those provisions were | ||||||
33 | substantially re-enacted by other
Public Acts.
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34 | (Source: P.A. 91-54, eff. 6-30-99; 91-229, eff. 1-1-00; 91-357, | ||||||
35 | eff.
7-29-99; 92-16, eff. 6-28-01; 92-434, eff. 1-1-02; 92-827, | ||||||
36 | eff. 8-22-02.)
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1 | Section 99. Effective date. This Act takes effect upon | ||||||
2 | becoming law.
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