HB4879 Engrossed LRB095 12804 RLC 38196 b

1     AN ACT concerning criminal law.
 
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 changing
5 Section 11-20.1 as follows:
 
6     (720 ILCS 5/11-20.1)  (from Ch. 38, par. 11-20.1)
7     Sec. 11-20.1. Child pornography.
8     (a) A person commits the offense of child pornography who:
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:
16             (i) actually or by simulation engaged in any act of
17         sexual penetration or sexual conduct with any person or
18         animal; or
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

 

 

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1         the mouth, anus or sex organs of the child or severely
2         or profoundly mentally retarded person and the sex
3         organs of another person or animal; or
4             (iii) actually or by simulation engaged in any act
5         of masturbation; or
6             (iv) actually or by simulation portrayed as being
7         the object of, or otherwise engaged in, any act of lewd
8         fondling, touching, or caressing involving another
9         person or animal; or
10             (v) actually or by simulation engaged in any act of
11         excretion or urination within a sexual context; or
12             (vi) actually or by simulation portrayed or
13         depicted as bound, fettered, or subject to sadistic,
14         masochistic, or sadomasochistic abuse in any sexual
15         context; or
16             (vii) depicted or portrayed in any pose, posture or
17         setting involving a lewd exhibition of the unclothed or
18         transparently clothed genitals, pubic area, buttocks,
19         or, if such person is female, a fully or partially
20         developed breast of the child or other person; or
21         (2) with the knowledge of the nature or content
22     thereof, reproduces, disseminates, offers to disseminate,
23     exhibits or possesses with intent to disseminate any film,
24     videotape, photograph or other similar visual reproduction
25     or depiction by computer of any child or severely or
26     profoundly mentally retarded person whom the person knows

 

 

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1     or reasonably should know to be under the age of 18 or to
2     be a severely or profoundly mentally retarded person,
3     engaged in any activity described in subparagraphs (i)
4     through (vii) of paragraph (1) of this subsection; or
5         (3) with knowledge of the subject matter or theme
6     thereof, produces any stage play, live performance, film,
7     videotape or other similar visual portrayal or depiction by
8     computer which includes a child whom the person knows or
9     reasonably should know to be under the age of 18 or a
10     severely or profoundly mentally retarded person engaged in
11     any activity described in subparagraphs (i) through (vii)
12     of paragraph (1) of this subsection; or
13         (4) solicits, uses, persuades, induces, entices, or
14     coerces any child whom he knows or reasonably should know
15     to be under the age of 18 or a severely or profoundly
16     mentally retarded person to appear in any stage play, live
17     presentation, film, videotape, photograph or other similar
18     visual reproduction or depiction by computer in which the
19     child or severely or profoundly mentally retarded person is
20     or will be depicted, actually or by simulation, in any act,
21     pose or setting described in subparagraphs (i) through
22     (vii) of paragraph (1) of this subsection; or
23         (5) is a parent, step-parent, legal guardian or other
24     person having care or custody of a child whom the person
25     knows or reasonably should know to be under the age of 18
26     or a severely or profoundly mentally retarded person and

 

 

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1     who knowingly permits, induces, promotes, or arranges for
2     such child or severely or profoundly mentally retarded
3     person to appear in any stage play, live performance, film,
4     videotape, photograph or other similar visual
5     presentation, portrayal or simulation or depiction by
6     computer of any act or activity described in subparagraphs
7     (i) through (vii) of paragraph (1) of this subsection; or
8         (6) with knowledge of the nature or content thereof,
9     possesses any film, videotape, photograph or other similar
10     visual reproduction or depiction by computer of any child
11     or severely or profoundly mentally retarded person whom the
12     person knows or reasonably should know to be under the age
13     of 18 or to be a severely or profoundly mentally retarded
14     person, engaged in any activity described in subparagraphs
15     (i) through (vii) of paragraph (1) of this subsection; or
16         (7) solicits, uses, persuades, induces, entices, or
17     coerces a person to provide a child under the age of 18 or
18     a severely or profoundly mentally retarded person to appear
19     in any videotape, photograph, film, stage play, live
20     presentation, or other similar visual reproduction or
21     depiction by computer in which the child or severely or
22     profoundly mentally retarded person will be depicted,
23     actually or by simulation, in any act, pose, or setting
24     described in subparagraphs (i) through (vii) of paragraph
25     (1) of this subsection; or .
26         (8) knowingly films, videotapes, photographs, or

 

 

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1     otherwise depicts or portrays by means of any similar
2     visual medium or reproduction or depicts by computer any
3     actual or simulated act of criminal sexual assault,
4     aggravated criminal sexual assault, predatory criminal
5     sexual assault of a child, criminal sexual abuse, or
6     aggravated criminal sexual abuse involving any child whom
7     he or she knows or reasonably should know to be under the
8     age of 18 or any severely or profoundly mentally retarded
9     person, or knowingly possesses such film, videotape,
10     photograph, or other depiction by computer.
11     (b) (1) It shall be an affirmative defense to a charge of
12     child pornography that the defendant reasonably believed,
13     under all of the circumstances, that the child was 18 years
14     of age or older or that the person was not a severely or
15     profoundly mentally retarded person but only where, prior
16     to the act or acts giving rise to a prosecution under this
17     Section, he took some affirmative action or made a bonafide
18     inquiry designed to ascertain whether the child was 18
19     years of age or older or that the person was not a severely
20     or profoundly mentally retarded person and his reliance
21     upon the information so obtained was clearly reasonable.
22         (1.5) Telecommunications carriers, commercial mobile
23     service providers, and providers of information services,
24     including, but not limited to, Internet service providers
25     and hosting service providers, are not liable under this
26     Section, except for willful and wanton misconduct, by

 

 

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1     virtue of the transmission, storage, or caching of
2     electronic communications or messages of others or by
3     virtue of the provision of other related
4     telecommunications, commercial mobile services, or
5     information services used by others in violation of this
6     Section.
7         (2) (Blank).
8         (3) The charge of child pornography shall not apply to
9     the performance of official duties by law enforcement or
10     prosecuting officers or persons employed by law
11     enforcement or prosecuting agencies, court personnel or
12     attorneys, nor to bonafide treatment or professional
13     education programs conducted by licensed physicians,
14     psychologists or social workers.
15         (4) Possession by the defendant of more than one of the
16     same film, videotape or visual reproduction or depiction by
17     computer in which child pornography is depicted shall raise
18     a rebuttable presumption that the defendant possessed such
19     materials with the intent to disseminate them.
20         (5) The charge of child pornography does not apply to a
21     person who does not voluntarily possess a film, videotape,
22     or visual reproduction or depiction by computer in which
23     child pornography is depicted. Possession is voluntary if
24     the defendant knowingly procures or receives a film,
25     videotape, or visual reproduction or depiction for a
26     sufficient time to be able to terminate his or her

 

 

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1     possession.
2     (c) Violation of paragraph (1), (4), (5), or (7) of
3 subsection (a) is a Class 1 felony with a mandatory minimum
4 fine of $2,000 and a maximum fine of $100,000. Violation of
5 paragraph (3) of subsection (a) is a Class 1 felony with a
6 mandatory minimum fine of $1500 and a maximum fine of $100,000.
7 Violation of paragraph (2) of subsection (a) is a Class 1
8 felony with a mandatory minimum fine of $1000 and a maximum
9 fine of $100,000. Violation of paragraph (6) of subsection (a)
10 is a Class 3 felony with a mandatory minimum fine of $1000 and
11 a maximum fine of $100,000. Violation of paragraph (8) of
12 subsection (a) is a Class X felony for which the defendant
13 shall be sentenced to a term of imprisonment of not less than 9
14 years and not more than 40 years.
15     (d) If a person is convicted of a second or subsequent
16 violation of this Section within 10 years of a prior
17 conviction, the court shall order a presentence psychiatric
18 examination of the person. The examiner shall report to the
19 court whether treatment of the person is necessary.
20     (e) Any film, videotape, photograph or other similar visual
21 reproduction or depiction by computer which includes a child
22 under the age of 18 or a severely or profoundly mentally
23 retarded person engaged in any activity described in
24 subparagraphs (i) through (vii) or paragraph 1 of subsection
25 (a), and any material or equipment used or intended for use in
26 photographing, filming, printing, producing, reproducing,

 

 

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1 manufacturing, projecting, exhibiting, depiction by computer,
2 or disseminating such material shall be seized and forfeited in
3 the manner, method and procedure provided by Section 36-1 of
4 this Code for the seizure and forfeiture of vessels, vehicles
5 and aircraft.
6     (e-5) Upon the conclusion of a case brought under this
7 Section, the court shall seal all evidence depicting a victim
8 or witness that is sexually explicit. The evidence may be
9 unsealed and viewed, on a motion of the party seeking to unseal
10 and view the evidence, only for good cause shown and in the
11 discretion of the court. The motion must expressly set forth
12 the purpose for viewing the material. The State's attorney and
13 the victim, if possible, shall be provided reasonable notice of
14 the hearing on the motion to unseal the evidence. Any person
15 entitled to notice of a hearing under this subsection (e-5) may
16 object to the motion.
17     (f) Definitions. For the purposes of this Section:
18         (1) "Disseminate" means (i) to sell, distribute,
19     exchange or transfer possession, whether with or without
20     consideration or (ii) to make a depiction by computer
21     available for distribution or downloading through the
22     facilities of any telecommunications network or through
23     any other means of transferring computer programs or data
24     to a computer.
25         (2) "Produce" means to direct, promote, advertise,
26     publish, manufacture, issue, present or show.

 

 

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1         (3) "Reproduce" means to make a duplication or copy.
2         (4) "Depict by computer" means to generate or create,
3     or cause to be created or generated, a computer program or
4     data that, after being processed by a computer either alone
5     or in conjunction with one or more computer programs,
6     results in a visual depiction on a computer monitor,
7     screen, or display.
8         (5) "Depiction by computer" means a computer program or
9     data that, after being processed by a computer either alone
10     or in conjunction with one or more computer programs,
11     results in a visual depiction on a computer monitor,
12     screen, or display.
13         (6) "Computer", "computer program", and "data" have
14     the meanings ascribed to them in Section 16D-2 of this
15     Code.
16         (7) "Child" includes a film, videotape, photograph, or
17     other similar visual medium or reproduction or depiction by
18     computer that is, or appears to be, that of a person,
19     either in part, or in total, under the age of 18,
20     regardless of the method by which the film, videotape,
21     photograph, or other similar visual medium or reproduction
22     or depiction by computer is created, adopted, or modified
23     to appear as such. "Child" also includes a film, videotape,
24     photograph, or other similar visual medium or reproduction
25     or depiction by computer that is advertised, promoted,
26     presented, described, or distributed in such a manner that

 

 

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1     conveys the impression that the film, videotape,
2     photograph, or other similar visual medium or reproduction
3     or depiction by computer is of a person under the age of
4     18.
5         (8) "Sexual penetration" and "sexual conduct" have the
6     meanings ascribed to them in Section 12-12 of this Code.
7     (g) Re-enactment; findings; purposes.
8         (1) The General Assembly finds and declares that:
9             (i) Section 50-5 of Public Act 88-680, effective
10         January 1, 1995, contained provisions amending the
11         child pornography statute, Section 11-20.1 of the
12         Criminal Code of 1961. Section 50-5 also contained
13         other provisions.
14             (ii) In addition, Public Act 88-680 was entitled
15         "AN ACT to create a Safe Neighborhoods Law". (A)
16         Article 5 was entitled JUVENILE JUSTICE and amended the
17         Juvenile Court Act of 1987. (B) Article 15 was entitled
18         GANGS and amended various provisions of the Criminal
19         Code of 1961 and the Unified Code of Corrections. (C)
20         Article 20 was entitled ALCOHOL ABUSE and amended
21         various provisions of the Illinois Vehicle Code. (D)
22         Article 25 was entitled DRUG ABUSE and amended the
23         Cannabis Control Act and the Illinois Controlled
24         Substances Act. (E) Article 30 was entitled FIREARMS
25         and amended the Criminal Code of 1961 and the Code of
26         Criminal Procedure of 1963. (F) Article 35 amended the

 

 

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1         Criminal Code of 1961, the Rights of Crime Victims and
2         Witnesses Act, and the Unified Code of Corrections. (G)
3         Article 40 amended the Criminal Code of 1961 to
4         increase the penalty for compelling organization
5         membership of persons. (H) Article 45 created the
6         Secure Residential Youth Care Facility Licensing Act
7         and amended the State Finance Act, the Juvenile Court
8         Act of 1987, the Unified Code of Corrections, and the
9         Private Correctional Facility Moratorium Act. (I)
10         Article 50 amended the WIC Vendor Management Act, the
11         Firearm Owners Identification Card Act, the Juvenile
12         Court Act of 1987, the Criminal Code of 1961, the
13         Wrongs to Children Act, and the Unified Code of
14         Corrections.
15             (iii) On September 22, 1998, the Third District
16         Appellate Court in People v. Dainty, 701 N.E. 2d 118,
17         ruled that Public Act 88-680 violates the single
18         subject clause of the Illinois Constitution (Article
19         IV, Section 8 (d)) and was unconstitutional in its
20         entirety. As of the time this amendatory Act of 1999
21         was prepared, People v. Dainty was still subject to
22         appeal.
23             (iv) Child pornography is a vital concern to the
24         people of this State and the validity of future
25         prosecutions under the child pornography statute of
26         the Criminal Code of 1961 is in grave doubt.

 

 

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1         (2) It is the purpose of this amendatory Act of 1999 to
2     prevent or minimize any problems relating to prosecutions
3     for child pornography that may result from challenges to
4     the constitutional validity of Public Act 88-680 by
5     re-enacting the Section relating to child pornography that
6     was included in Public Act 88-680.
7         (3) This amendatory Act of 1999 re-enacts Section
8     11-20.1 of the Criminal Code of 1961, as it has been
9     amended. This re-enactment is intended to remove any
10     question as to the validity or content of that Section; it
11     is not intended to supersede any other Public Act that
12     amends the text of the Section as set forth in this
13     amendatory Act of 1999. The material is shown as existing
14     text (i.e., without underscoring) because, as of the time
15     this amendatory Act of 1999 was prepared, People v. Dainty
16     was subject to appeal to the Illinois Supreme Court.
17         (4) The re-enactment by this amendatory Act of 1999 of
18     Section 11-20.1 of the Criminal Code of 1961 relating to
19     child pornography that was amended by Public Act 88-680 is
20     not intended, and shall not be construed, to imply that
21     Public Act 88-680 is invalid or to limit or impair any
22     legal argument concerning whether those provisions were
23     substantially re-enacted by other Public Acts.
24 (Source: P.A. 94-366, eff. 7-29-05.)