97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB4127

 

Introduced , by Rep. Dwight Kay

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/11-20.1  from Ch. 38, par. 11-20.1

    Amends the Criminal Code of 1961. Eliminates the provision that if the defendant possessed more than one of the same film, videotape, or visual reproduction or depiction by computer in which child pornography is depicted, then the trier of fact may infer that the defendant possessed such materials with the intent to disseminate them. Provides that possession of more than one of the same film, videotape or visual reproduction or depiction by computer in which child pornography is depicted is a Class X felony for which the defendant shall be sentenced to a term of imprisonment of not less than 9 years and not more than 40 years.


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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 1961 is amended by changing
5Section 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 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 or
12    she knows or reasonably should know to be under the age of
13    18 and at least 13 years of age or any severely or
14    profoundly intellectually disabled person where such child
15    or severely or profoundly intellectually disabled person
16    is:
17            (i) actually or by simulation engaged in any act of
18        sexual penetration or sexual conduct with any person or
19        animal; or
20            (ii) actually or by simulation engaged in any act
21        of sexual penetration or sexual conduct involving the
22        sex organs of the child or severely or profoundly
23        intellectually disabled person and the mouth, anus, or

 

 

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

 

 

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

 

 

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1        (5) is a parent, step-parent, legal guardian or other
2    person having care or custody of a child whom the person
3    knows or reasonably should know to be under the age of 18
4    and at least 13 years of age or a severely or profoundly
5    intellectually disabled person and who knowingly permits,
6    induces, promotes, or arranges for such child or severely
7    or profoundly intellectually disabled person to appear in
8    any stage play, live performance, film, videotape,
9    photograph or other similar visual presentation, portrayal
10    or simulation or depiction by computer of any act or
11    activity described in subparagraphs (i) through (vii) of
12    paragraph (1) of this subsection; or
13        (6) with knowledge of the nature or content thereof,
14    possesses any film, videotape, photograph or other similar
15    visual reproduction or depiction by computer of any child
16    or severely or profoundly intellectually disabled person
17    whom the person knows or reasonably should know to be under
18    the age of 18 and at least 13 years of age or to be a
19    severely or profoundly intellectually disabled person,
20    engaged in any activity described in subparagraphs (i)
21    through (vii) of paragraph (1) of this subsection; or
22        (7) solicits, or knowingly uses, persuades, induces,
23    entices, or coerces, a person to provide a child under the
24    age of 18 and at least 13 years of age or a severely or
25    profoundly intellectually disabled person to appear in any
26    videotape, photograph, film, stage play, live

 

 

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1    presentation, or other similar visual reproduction or
2    depiction by computer in which the child or severely or
3    profoundly intellectually disabled person will be
4    depicted, actually or by simulation, in any act, pose, or
5    setting described in subparagraphs (i) through (vii) of
6    paragraph (1) of this subsection.
7    (b) (1) It shall be an affirmative defense to a charge of
8    child pornography that the defendant reasonably believed,
9    under all of the circumstances, that the child was 18 years
10    of age or older or that the person was not a severely or
11    profoundly intellectually disabled person but only where,
12    prior to the act or acts giving rise to a prosecution under
13    this Section, he or she took some affirmative action or
14    made a bonafide inquiry designed to ascertain whether the
15    child was 18 years of age or older or that the person was
16    not a severely or profoundly intellectually disabled
17    person and his or her reliance upon the information so
18    obtained was clearly reasonable.
19        (1.5) Telecommunications carriers, commercial mobile
20    service providers, and providers of information services,
21    including, but not limited to, Internet service providers
22    and hosting service providers, are not liable under this
23    Section by virtue of the transmission, storage, or caching
24    of electronic communications or messages of others or by
25    virtue of the provision of other related
26    telecommunications, commercial mobile services, or

 

 

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

 

 

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1    solicited for, depicted in, or posed in any act of sexual
2    penetration or bound, fettered, or subject to sadistic,
3    masochistic, or sadomasochistic abuse in a sexual context
4    shall be deemed a crime of violence.
5    (c) If the violation does not involve a film, videotape, or
6other moving depiction, a violation of paragraph (1), (4), (5),
7or (7) of subsection (a) is a Class 1 felony with a mandatory
8minimum fine of $2,000 and a maximum fine of $100,000. If the
9violation involves a film, videotape, or other moving
10depiction, a violation of paragraph (1), (4), (5), or (7) of
11subsection (a) is a Class X felony with a mandatory minimum
12fine of $2,000 and a maximum fine of $100,000. If the violation
13does not involve a film, videotape, or other moving depiction,
14a violation of paragraph (3) of subsection (a) is a Class 1
15felony with a mandatory minimum fine of $1500 and a maximum
16fine of $100,000. If the violation involves a film, videotape,
17or other moving depiction, a violation of paragraph (3) of
18subsection (a) is a Class X felony with a mandatory minimum
19fine of $1500 and a maximum fine of $100,000. If the violation
20does not involve a film, videotape, or other moving depiction,
21a violation of paragraph (2) of subsection (a) is a Class 1
22felony with a mandatory minimum fine of $1000 and a maximum
23fine of $100,000. If the violation involves a film, videotape,
24or other moving depiction, a violation of paragraph (2) of
25subsection (a) is a Class X felony with a mandatory minimum
26fine of $1000 and a maximum fine of $100,000. If the violation

 

 

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

 

 

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1depiction by computer, or disseminating such material shall be
2seized and forfeited in the manner, method and procedure
3provided by Section 36-1 of this Code for the seizure and
4forfeiture of vessels, vehicles and aircraft.
5    In addition, any person convicted under this Section is
6subject to the property forfeiture provisions set forth in
7Article 124B of the Code of Criminal Procedure of 1963.
8    (e-5) Upon the conclusion of a case brought under this
9Section, the court shall seal all evidence depicting a victim
10or witness that is sexually explicit. The evidence may be
11unsealed and viewed, on a motion of the party seeking to unseal
12and view the evidence, only for good cause shown and in the
13discretion of the court. The motion must expressly set forth
14the purpose for viewing the material. The State's attorney and
15the victim, if possible, shall be provided reasonable notice of
16the hearing on the motion to unseal the evidence. Any person
17entitled to notice of a hearing under this subsection (e-5) may
18object to the motion.
19    (f) Definitions. For the purposes of this Section:
20        (1) "Disseminate" means (i) to sell, distribute,
21    exchange or transfer possession, whether with or without
22    consideration or (ii) to make a depiction by computer
23    available for distribution or downloading through the
24    facilities of any telecommunications network or through
25    any other means of transferring computer programs or data
26    to a computer.

 

 

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1        (2) "Produce" means to direct, promote, advertise,
2    publish, manufacture, issue, present or show.
3        (3) "Reproduce" means to make a duplication or copy.
4        (4) "Depict by computer" means to generate or create,
5    or cause to be created or generated, a computer program or
6    data that, after being processed by a computer either alone
7    or in conjunction with one or more computer programs,
8    results in a visual depiction on a computer monitor,
9    screen, or display.
10        (5) "Depiction by computer" means a computer program or
11    data that, after being processed by a computer either alone
12    or in conjunction with one or more computer programs,
13    results in a visual depiction on a computer monitor,
14    screen, or display.
15        (6) "Computer", "computer program", and "data" have
16    the meanings ascribed to them in Section 16D-2 of this
17    Code.
18        (7) For the purposes of this Section, "child
19    pornography" includes a film, videotape, photograph, or
20    other similar visual medium or reproduction or depiction by
21    computer that is, or appears to be, that of a person,
22    either in part, or in total, under the age of 18 and at
23    least 13 years of age or a severely or profoundly
24    intellectually disabled mentally retarded person,
25    regardless of the method by which the film, videotape,
26    photograph, or other similar visual medium or reproduction

 

 

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1    or depiction by computer is created, adopted, or modified
2    to appear as such. "Child pornography" also includes a
3    film, videotape, photograph, or other similar visual
4    medium or reproduction or depiction by computer that is
5    advertised, promoted, presented, described, or distributed
6    in such a manner that conveys the impression that the film,
7    videotape, photograph, or other similar visual medium or
8    reproduction or depiction by computer is of a person under
9    the age of 18 and at least 13 years of age or a severely or
10    profoundly intellectually disabled mentally retarded
11    person.
12    (g) Re-enactment; findings; purposes.
13        (1) The General Assembly finds and declares that:
14            (i) Section 50-5 of Public Act 88-680, effective
15        January 1, 1995, contained provisions amending the
16        child pornography statute, Section 11-20.1 of the
17        Criminal Code of 1961. Section 50-5 also contained
18        other provisions.
19            (ii) In addition, Public Act 88-680 was entitled
20        "AN ACT to create a Safe Neighborhoods Law". (A)
21        Article 5 was entitled JUVENILE JUSTICE and amended the
22        Juvenile Court Act of 1987. (B) Article 15 was entitled
23        GANGS and amended various provisions of the Criminal
24        Code of 1961 and the Unified Code of Corrections. (C)
25        Article 20 was entitled ALCOHOL ABUSE and amended
26        various provisions of the Illinois Vehicle Code. (D)

 

 

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1        Article 25 was entitled DRUG ABUSE and amended the
2        Cannabis Control Act and the Illinois Controlled
3        Substances Act. (E) Article 30 was entitled FIREARMS
4        and amended the Criminal Code of 1961 and the Code of
5        Criminal Procedure of 1963. (F) Article 35 amended the
6        Criminal Code of 1961, the Rights of Crime Victims and
7        Witnesses Act, and the Unified Code of Corrections. (G)
8        Article 40 amended the Criminal Code of 1961 to
9        increase the penalty for compelling organization
10        membership of persons. (H) Article 45 created the
11        Secure Residential Youth Care Facility Licensing Act
12        and amended the State Finance Act, the Juvenile Court
13        Act of 1987, the Unified Code of Corrections, and the
14        Private Correctional Facility Moratorium Act. (I)
15        Article 50 amended the WIC Vendor Management Act, the
16        Firearm Owners Identification Card Act, the Juvenile
17        Court Act of 1987, the Criminal Code of 1961, the
18        Wrongs to Children Act, and the Unified Code of
19        Corrections.
20            (iii) On September 22, 1998, the Third District
21        Appellate Court in People v. Dainty, 701 N.E. 2d 118,
22        ruled that Public Act 88-680 violates the single
23        subject clause of the Illinois Constitution (Article
24        IV, Section 8 (d)) and was unconstitutional in its
25        entirety. As of the time this amendatory Act of 1999
26        was prepared, People v. Dainty was still subject to

 

 

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1        appeal.
2            (iv) Child pornography is a vital concern to the
3        people of this State and the validity of future
4        prosecutions under the child pornography statute of
5        the Criminal Code of 1961 is in grave doubt.
6        (2) It is the purpose of this amendatory Act of 1999 to
7    prevent or minimize any problems relating to prosecutions
8    for child pornography that may result from challenges to
9    the constitutional validity of Public Act 88-680 by
10    re-enacting the Section relating to child pornography that
11    was included in Public Act 88-680.
12        (3) This amendatory Act of 1999 re-enacts Section
13    11-20.1 of the Criminal Code of 1961, as it has been
14    amended. This re-enactment is intended to remove any
15    question as to the validity or content of that Section; it
16    is not intended to supersede any other Public Act that
17    amends the text of the Section as set forth in this
18    amendatory Act of 1999. The material is shown as existing
19    text (i.e., without underscoring) because, as of the time
20    this amendatory Act of 1999 was prepared, People v. Dainty
21    was subject to appeal to the Illinois Supreme Court.
22        (4) The re-enactment by this amendatory Act of 1999 of
23    Section 11-20.1 of the Criminal Code of 1961 relating to
24    child pornography that was amended by Public Act 88-680 is
25    not intended, and shall not be construed, to imply that
26    Public Act 88-680 is invalid or to limit or impair any

 

 

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1    legal argument concerning whether those provisions were
2    substantially re-enacted by other Public Acts.
3(Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10;
496-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-157, eff.
51-1-12; 97-227, eff. 1-1-12; revised 9-12-11.)