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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 2012 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 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 or | ||||||
12 | she knows or reasonably should know to be under the age of | ||||||
13 | 18 or any
severely or profoundly intellectually disabled | ||||||
14 | person where such child or severely
or profoundly | ||||||
15 | intellectually disabled 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 | intellectually disabled person and the mouth, anus, or | ||||||
23 | sex organs of
another person or animal; or which |
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1 | involves the mouth, anus or sex organs
of the child or | ||||||
2 | severely or profoundly intellectually disabled
person | ||||||
3 | and the sex organs of another person or animal; or
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4 | (iii) actually or by simulation engaged in any act | ||||||
5 | of masturbation; or
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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
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10 | (v) actually or by simulation engaged in any act of | ||||||
11 | excretion or
urination within a sexual context; or
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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
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15 | context; or
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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
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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
intellectually disabled person whom the person |
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1 | knows or reasonably should know to be
under the age of 18 | ||||||
2 | or to be a severely or profoundly intellectually disabled | ||||||
3 | person,
engaged in any activity described in subparagraphs | ||||||
4 | (i) through (vii) of
paragraph (1) of this subsection; or
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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 intellectually disabled person | ||||||
11 | engaged in any activity described in
subparagraphs (i) | ||||||
12 | through (vii) of paragraph (1) of this subsection; or
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13 | (4) solicits, uses, persuades, induces, entices, or | ||||||
14 | coerces any child
whom he or she knows or reasonably should | ||||||
15 | know to be under
the age of 18 or a severely or profoundly | ||||||
16 | intellectually disabled person to appear in any stage play, | ||||||
17 | live presentation, film,
videotape, photograph or other | ||||||
18 | similar visual reproduction or depiction
by computer in | ||||||
19 | which the
child or severely or profoundly intellectually | ||||||
20 | disabled person
is or will be depicted, actually or by | ||||||
21 | simulation, in any act, pose or
setting described in | ||||||
22 | subparagraphs (i) through (vii) of paragraph (1) of
this | ||||||
23 | subsection; or
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24 | (5) is a parent, step-parent, legal guardian or other | ||||||
25 | person having
care or custody
of a child whom the person | ||||||
26 | knows or reasonably should know to be under
the age of 18 |
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1 | or a severely or profoundly intellectually disabled person | ||||||
2 | and who knowingly permits, induces, promotes, or arranges
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3 | for such child or severely or profoundly intellectually | ||||||
4 | disabled
person to appear in any stage play, live | ||||||
5 | performance, film, videotape,
photograph or other similar | ||||||
6 | visual presentation, portrayal or simulation or
depiction | ||||||
7 | by computer of any act or activity described in | ||||||
8 | subparagraphs (i)
through (vii) of paragraph (1) of this | ||||||
9 | subsection; or
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10 | (6) with knowledge of the nature or content thereof, | ||||||
11 | possesses any film,
videotape, photograph or other similar | ||||||
12 | visual reproduction or depiction by
computer of any child | ||||||
13 | or severely or profoundly intellectually disabled person
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14 | whom the person knows or reasonably should know to be under | ||||||
15 | the age of 18
or to be a severely or profoundly | ||||||
16 | intellectually disabled
person, engaged in any activity | ||||||
17 | described in subparagraphs (i) through
(vii) of paragraph | ||||||
18 | (1) of this subsection; or
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19 | (7) solicits, or knowingly uses, persuades, induces, | ||||||
20 | entices, or coerces, a person
to provide a child under the | ||||||
21 | age of 18 or a severely or profoundly intellectually | ||||||
22 | disabled person to appear in any videotape, photograph, | ||||||
23 | film, stage play, live
presentation, or other similar | ||||||
24 | visual reproduction or depiction by computer
in which the | ||||||
25 | child or severely or profoundly intellectually disabled | ||||||
26 | person will be
depicted, actually or by simulation, in any |
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1 | act, pose, or setting described in
subparagraphs (i) | ||||||
2 | through (vii) of paragraph (1) of this subsection.
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3 | (a-5) The possession of each individual film, videotape, | ||||||
4 | photograph, or other similar visual reproduction or depiction | ||||||
5 | by computer in violation of this Section constitutes a single | ||||||
6 | and separate violation. This subsection (a-5) does not apply to | ||||||
7 | multiple copies of the same film, videotape, photograph, or | ||||||
8 | other similar visual reproduction or depiction by computer that | ||||||
9 | are identical to each other.
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10 | (b) (1) It shall be an affirmative defense to a charge of | ||||||
11 | child
pornography that the defendant reasonably believed, | ||||||
12 | under all of the
circumstances, that the child was 18 years | ||||||
13 | of age or older or that the
person was not a severely or | ||||||
14 | profoundly intellectually disabled person but only where, | ||||||
15 | prior to the act or acts giving rise to a
prosecution under | ||||||
16 | this Section, he or she took some affirmative action or | ||||||
17 | made a
bonafide inquiry designed to ascertain whether the | ||||||
18 | child was 18 years of
age or older or that the person was | ||||||
19 | not a severely or
profoundly intellectually disabled | ||||||
20 | person and his or her reliance upon the information
so | ||||||
21 | obtained was clearly reasonable.
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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 by virtue of the transmission, storage, or caching |
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1 | of electronic communications or messages of others or by | ||||||
2 | virtue of the provision of other related | ||||||
3 | telecommunications, commercial mobile services, or | ||||||
4 | information services used by others in violation of this | ||||||
5 | Section.
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6 | (2) (Blank).
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7 | (3) The charge of child pornography shall not apply to | ||||||
8 | the performance
of official duties by law enforcement or | ||||||
9 | prosecuting officers or persons employed by law | ||||||
10 | enforcement or prosecuting agencies, court personnel
or | ||||||
11 | attorneys, nor to bonafide treatment or professional | ||||||
12 | education programs
conducted by licensed physicians, | ||||||
13 | psychologists or social workers.
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14 | (4) If the defendant possessed more than one of the | ||||||
15 | same film,
videotape or visual reproduction or depiction by | ||||||
16 | computer in which child
pornography is depicted, then the | ||||||
17 | trier of fact may infer
that the defendant possessed such
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18 | materials with the intent to disseminate them.
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19 | (5) The charge of child pornography does not apply to a | ||||||
20 | person who does
not voluntarily possess a film, videotape, | ||||||
21 | or visual reproduction or depiction
by computer in which | ||||||
22 | child pornography is depicted. Possession is voluntary if
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23 | the defendant knowingly procures or receives a film, | ||||||
24 | videotape, or visual
reproduction or depiction for a | ||||||
25 | sufficient time to be able to terminate his
or her | ||||||
26 | possession.
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1 | (6) Any violation of paragraph (1), (2), (3), (4), (5), | ||||||
2 | or (7) of subsection (a) that includes a child engaged in, | ||||||
3 | solicited for, depicted in, or posed in any act of sexual | ||||||
4 | penetration or bound, fettered, or subject to sadistic, | ||||||
5 | masochistic, or sadomasochistic abuse in a sexual context | ||||||
6 | shall be deemed a crime of violence. | ||||||
7 | (c) If the violation does not involve a film, videotape, or | ||||||
8 | other moving depiction, a violation of paragraph (1), (4), (5), | ||||||
9 | or (7) of subsection (a) is a
Class 1 felony with a mandatory | ||||||
10 | minimum fine of $2,000 and a maximum fine of
$100,000. If the | ||||||
11 | violation involves a film, videotape, or other moving | ||||||
12 | depiction, a violation of paragraph (1), (4), (5), or (7) of | ||||||
13 | subsection (a) is a
Class X felony with a mandatory minimum | ||||||
14 | fine of $2,000 and a maximum fine of
$100,000. If the violation | ||||||
15 | does not involve a film, videotape, or other moving depiction, | ||||||
16 | a violation of paragraph (3) of subsection (a) is a Class 1 | ||||||
17 | felony
with a mandatory minimum fine of $1500 and a maximum | ||||||
18 | fine of $100,000. If the violation involves a film, videotape, | ||||||
19 | or other moving depiction, a violation of paragraph (3) of | ||||||
20 | subsection (a) is a Class X felony
with a mandatory minimum | ||||||
21 | fine of $1500 and a maximum fine of $100,000.
If the violation | ||||||
22 | does not involve a film, videotape, or other moving depiction, | ||||||
23 | a violation
of paragraph (2) of subsection (a) is a Class 1 | ||||||
24 | felony with a
mandatory minimum fine of $1000 and a maximum | ||||||
25 | fine of $100,000. If the violation involves a film, videotape, | ||||||
26 | or other moving depiction, a violation of paragraph (2) of |
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1 | subsection (a) is a Class X felony with a
mandatory minimum | ||||||
2 | fine of $1000 and a maximum fine of $100,000. If the violation | ||||||
3 | does not involve a film, videotape, or other moving depiction, | ||||||
4 | a violation of
paragraph (6) of subsection (a) is a Class 3 | ||||||
5 | felony with a mandatory
minimum fine of $1000 and a maximum | ||||||
6 | fine of $100,000. If the violation involves a film, videotape, | ||||||
7 | or other moving depiction, a violation of
paragraph (6) of | ||||||
8 | subsection (a) is a Class 2 felony with a mandatory
minimum | ||||||
9 | fine of $1000 and a maximum fine of $100,000.
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10 | (c-5) Where the child depicted is under the age of 13, a | ||||||
11 | violation of paragraph (1), (2), (3), (4), (5), or (7) of | ||||||
12 | subsection (a) is a Class X felony with a mandatory minimum | ||||||
13 | fine of $2,000 and a maximum fine of $100,000. Where the child | ||||||
14 | depicted is under the age of 13, a violation of paragraph (6) | ||||||
15 | of subsection (a) is a Class 2 felony with a mandatory minimum | ||||||
16 | fine of $1,000 and a maximum fine of $100,000. Where the child | ||||||
17 | depicted is under the age of 13, a person who commits a | ||||||
18 | violation of paragraph (1), (2), (3), (4), (5), or (7) of | ||||||
19 | subsection (a) where the defendant has previously been | ||||||
20 | convicted under the laws of this State or any other state of | ||||||
21 | the offense of child pornography, aggravated child | ||||||
22 | pornography, aggravated criminal sexual abuse, aggravated | ||||||
23 | criminal sexual assault, predatory criminal sexual assault of a | ||||||
24 | child, or any of the offenses formerly known as rape, deviate | ||||||
25 | sexual assault, indecent liberties with a child, or aggravated | ||||||
26 | indecent liberties with a child where the victim was under the |
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1 | age of 18 years or an offense that is substantially equivalent | ||||||
2 | to those offenses, is guilty of a Class X felony for which the | ||||||
3 | person shall be sentenced to a term of imprisonment of not less | ||||||
4 | than 9 years with a mandatory minimum fine of $2,000 and a | ||||||
5 | maximum fine of $100,000.
Where the child depicted is under the | ||||||
6 | age of 13, a person who commits a violation of paragraph (6) of | ||||||
7 | subsection (a) where the defendant has previously been | ||||||
8 | convicted under the laws of this State or any other state of | ||||||
9 | the offense of child pornography, aggravated child | ||||||
10 | pornography, aggravated criminal sexual abuse, aggravated | ||||||
11 | criminal sexual assault, predatory criminal sexual assault of a | ||||||
12 | child, or any of the offenses formerly known as rape, deviate | ||||||
13 | sexual assault, indecent liberties with a child, or aggravated | ||||||
14 | indecent liberties with a child where the victim was under the | ||||||
15 | age of 18 years or an offense that is substantially equivalent | ||||||
16 | to those offenses, is guilty of a Class 1 felony with a | ||||||
17 | mandatory minimum fine of $1,000 and a maximum fine of | ||||||
18 | $100,000. The issue of whether the child depicted is under the | ||||||
19 | age of 13 is an element of the offense to be resolved by the | ||||||
20 | trier of fact. | ||||||
21 | (d) If a person is convicted of a second or subsequent | ||||||
22 | violation of
this Section within 10 years of a prior | ||||||
23 | conviction, the court shall order a
presentence psychiatric | ||||||
24 | examination of the person. The examiner shall report
to the | ||||||
25 | court whether treatment of the person is necessary.
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26 | (e) Any film, videotape, photograph or other similar visual |
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1 | reproduction
or depiction by computer which includes a child | ||||||
2 | under the age of 18 or a
severely or profoundly intellectually | ||||||
3 | disabled person engaged in any activity
described in | ||||||
4 | subparagraphs (i) through (vii) or paragraph 1 of subsection
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5 | (a), and any material or equipment used or intended for use in | ||||||
6 | photographing,
filming, printing, producing, reproducing, | ||||||
7 | manufacturing, projecting,
exhibiting, depiction by computer, | ||||||
8 | or disseminating such material shall be
seized and forfeited in | ||||||
9 | the manner, method and procedure provided by Section
36-1 of | ||||||
10 | this Code for the seizure and forfeiture of vessels, vehicles | ||||||
11 | and
aircraft.
| ||||||
12 | In addition, any person convicted under this Section is | ||||||
13 | subject to the property forfeiture provisions set forth in | ||||||
14 | Article 124B of the Code of Criminal Procedure of 1963. | ||||||
15 | (e-5) Upon the conclusion of a case brought under this | ||||||
16 | Section, the court
shall seal all evidence depicting a victim | ||||||
17 | or witness that is sexually
explicit. The evidence may be | ||||||
18 | unsealed and viewed, on a motion of the party
seeking to unseal | ||||||
19 | and view the evidence, only for good cause shown and in the
| ||||||
20 | discretion of the court. The motion must expressly set forth | ||||||
21 | the purpose for
viewing the material. The State's attorney and | ||||||
22 | the victim, if possible, shall
be provided reasonable notice of | ||||||
23 | the hearing on the motion to unseal the
evidence. Any person | ||||||
24 | entitled to notice of a hearing under this subsection
(e-5) may | ||||||
25 | object to the motion.
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26 | (f) Definitions. For the purposes of this Section:
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1 | (1) "Disseminate" means (i) to sell, distribute, | ||||||
2 | exchange or transfer
possession, whether with or without | ||||||
3 | consideration or (ii) to make a depiction
by computer | ||||||
4 | available for distribution or downloading through the | ||||||
5 | facilities
of any telecommunications network or through | ||||||
6 | any other means of transferring
computer programs or data | ||||||
7 | to a computer.
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8 | (2) "Produce" means to direct, promote, advertise, | ||||||
9 | publish, manufacture,
issue, present or show.
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10 | (3) "Reproduce" means to make a duplication or copy.
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11 | (4) "Depict by computer" means to generate or create, | ||||||
12 | or cause to be
created or generated, 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 | (5) "Depiction by computer" means a computer program or | ||||||
18 | data that, after
being processed by a computer either alone | ||||||
19 | or in conjunction with one or more
computer programs, | ||||||
20 | results in a visual depiction on a computer monitor, | ||||||
21 | screen,
or display.
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22 | (6) "Computer", "computer program", and "data" have | ||||||
23 | the meanings
ascribed to them in Section 16D-2 of this | ||||||
24 | Code.
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25 | (7) For the purposes of this Section, "child | ||||||
26 | pornography" includes a film, videotape, photograph, or |
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1 | other similar
visual medium or reproduction or depiction by | ||||||
2 | computer that is, or appears to
be, that of a person, | ||||||
3 | either in part, or in total, under the age of 18 or a | ||||||
4 | severely or profoundly intellectually disabled person,
| ||||||
5 | regardless of the method by which the film, videotape, | ||||||
6 | photograph, or other
similar visual medium or reproduction | ||||||
7 | or depiction by computer is created,
adopted, or modified | ||||||
8 | to appear as such. "Child pornography" also includes a | ||||||
9 | film,
videotape, photograph, or other similar visual | ||||||
10 | medium or reproduction or
depiction by computer that is | ||||||
11 | advertised, promoted, presented, described, or
distributed | ||||||
12 | in such a manner that conveys the impression that the film,
| ||||||
13 | videotape, photograph, or other similar visual medium or | ||||||
14 | reproduction or
depiction by computer is of a person under | ||||||
15 | the age of 18 or a severely or profoundly intellectually | ||||||
16 | disabled person.
| ||||||
17 | (g) Re-enactment; findings; purposes.
| ||||||
18 | (1) The General Assembly finds and declares that:
| ||||||
19 | (i) Section 50-5 of Public Act 88-680, effective | ||||||
20 | January 1, 1995,
contained provisions amending the | ||||||
21 | child pornography statute, Section 11-20.1
of the | ||||||
22 | Criminal Code of 1961. Section 50-5 also contained | ||||||
23 | other provisions.
| ||||||
24 | (ii) In addition, Public Act 88-680 was entitled | ||||||
25 | "AN ACT to create a
Safe Neighborhoods Law". (A) | ||||||
26 | Article 5 was entitled JUVENILE JUSTICE and
amended the |
| |||||||
| |||||||
1 | Juvenile Court Act of 1987. (B) Article 15 was entitled | ||||||
2 | GANGS and
amended various provisions of the Criminal | ||||||
3 | Code of 1961 and the Unified Code
of Corrections. (C) | ||||||
4 | Article 20 was entitled ALCOHOL ABUSE and amended | ||||||
5 | various
provisions of the Illinois Vehicle Code. (D) | ||||||
6 | Article 25 was entitled DRUG
ABUSE and amended the | ||||||
7 | Cannabis Control Act and the Illinois Controlled
| ||||||
8 | Substances Act. (E) Article 30 was entitled FIREARMS | ||||||
9 | and amended the Criminal
Code of 1961 and the Code of | ||||||
10 | Criminal Procedure of 1963. (F) Article 35
amended the | ||||||
11 | Criminal Code of 1961, the Rights of Crime Victims and | ||||||
12 | Witnesses
Act, and the Unified Code of Corrections. (G) | ||||||
13 | Article 40 amended the Criminal
Code of 1961 to | ||||||
14 | increase the penalty for compelling organization | ||||||
15 | membership of
persons. (H) Article 45 created the | ||||||
16 | Secure Residential Youth Care Facility
Licensing Act | ||||||
17 | and amended the State Finance Act, the Juvenile Court | ||||||
18 | Act of
1987, the Unified Code of Corrections, and the | ||||||
19 | Private Correctional Facility
Moratorium Act. (I) | ||||||
20 | Article 50 amended the WIC Vendor Management Act, the
| ||||||
21 | Firearm Owners Identification Card Act, the Juvenile | ||||||
22 | Court Act of 1987, the
Criminal Code of 1961, the | ||||||
23 | Wrongs to Children Act, and the Unified Code of
| ||||||
24 | Corrections.
| ||||||
25 | (iii) On September 22, 1998, the Third District | ||||||
26 | Appellate Court in
People v. Dainty, 701 N.E. 2d 118, |
| |||||||
| |||||||
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.
| ||||||
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
| ||||||
10 | the Criminal Code of 1961 is in grave doubt.
| ||||||
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
| ||||||
15 | re-enacting the Section relating to child pornography that | ||||||
16 | was included in
Public Act 88-680.
| ||||||
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
| ||||||
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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| |||||||
1 | (4) The re-enactment by this amendatory Act of 1999 of | ||||||
2 | Section 11-20.1 of
the Criminal Code of 1961 relating to | ||||||
3 | child pornography that was amended by
Public Act 88-680 is | ||||||
4 | not intended, and shall not be construed, to imply that
| ||||||
5 | Public Act 88-680 is invalid or to limit or impair any | ||||||
6 | legal argument
concerning whether those provisions were | ||||||
7 | substantially re-enacted by other
Public Acts.
| ||||||
8 | (Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10; | ||||||
9 | 96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-157, eff. | ||||||
10 | 1-1-12; 97-227, eff. 1-1-12; 97-995, eff. 1-1-13; 97-1109, eff. | ||||||
11 | 1-1-13.)
| ||||||
12 | Section 10. The Unified Code of Corrections is amended by | ||||||
13 | changing Section 5-8-4 as follows:
| ||||||
14 | (730 ILCS 5/5-8-4) (from Ch. 38, par. 1005-8-4)
| ||||||
15 | Sec. 5-8-4. Concurrent and consecutive terms of | ||||||
16 | imprisonment.
| ||||||
17 | (a) Concurrent terms; multiple or additional sentences. | ||||||
18 | When an Illinois court (i) imposes multiple sentences of | ||||||
19 | imprisonment on a defendant at the same time or (ii) imposes a | ||||||
20 | sentence of imprisonment on a defendant who is already subject | ||||||
21 | to a sentence of imprisonment imposed by an Illinois court, a | ||||||
22 | court of another state, or a federal court, then the sentences | ||||||
23 | shall run concurrently unless otherwise determined by the | ||||||
24 | Illinois court under this Section. |
| |||||||
| |||||||
1 | (b) Concurrent terms; misdemeanor and felony. A defendant | ||||||
2 | serving a sentence for a
misdemeanor who is convicted of a | ||||||
3 | felony and sentenced to imprisonment shall be transferred to | ||||||
4 | the Department of Corrections, and the misdemeanor sentence | ||||||
5 | shall be merged in and run concurrently with the felony | ||||||
6 | sentence. | ||||||
7 | (c) Consecutive terms; permissive. The court may impose | ||||||
8 | consecutive sentences in any of the following circumstances: | ||||||
9 | (1) If, having regard to the nature and circumstances | ||||||
10 | of the offense and the history
and character of the | ||||||
11 | defendant, it is the opinion of the court that consecutive | ||||||
12 | sentences are
required to protect the public from further | ||||||
13 | criminal conduct by the defendant, the basis for which the | ||||||
14 | court shall set forth in the record. | ||||||
15 | (2) If one of the offenses for which a defendant was | ||||||
16 | convicted was a violation of
Section 32-5.2 (aggravated | ||||||
17 | false personation of a peace officer) of the Criminal Code | ||||||
18 | of 1961
(720 ILCS 5/32-5.2) or a violation of subdivision | ||||||
19 | (b)(5) or (b)(6) of Section 17-2 of the Criminal Code of | ||||||
20 | 1961 or the Criminal Code of 2012 (720 ILCS 5/17-2) and the | ||||||
21 | offense was committed in attempting or committing a | ||||||
22 | forcible felony.
| ||||||
23 | (d) Consecutive terms; mandatory. The court shall impose | ||||||
24 | consecutive sentences in each of the following circumstances: | ||||||
25 | (1) One of the offenses for which the defendant was | ||||||
26 | convicted was first degree
murder or a Class X or Class 1 |
| |||||||
| |||||||
1 | felony and the defendant inflicted severe bodily injury. | ||||||
2 | (2) The defendant was convicted of a violation of | ||||||
3 | Section 11-20.1 (child pornography), 11-20.1B or 11-20.3 | ||||||
4 | (aggravated child pornography), 11-1.20 or 12-13 (criminal | ||||||
5 | sexual
assault), 11-1.30 or 12-14 (aggravated criminal | ||||||
6 | sexual assault), or 11-1.40 or 12-14.1 (predatory criminal | ||||||
7 | sexual assault of a child) of the Criminal Code of 1961 or | ||||||
8 | the Criminal Code of 2012 (720 ILCS 5/11-20.1, 5/11-20.1B, | ||||||
9 | 5/11-20.3, 5/11-1.20, 5/12-13, 5/11-1.30, 5/12-14, | ||||||
10 | 5/11-1.40, or 5/12-14.1). | ||||||
11 | (2.5) The defendant was convicted of a violation of | ||||||
12 | paragraph (1), (2), (3), (4), (5), or (7) of subsection (a) | ||||||
13 | of Section 11-20.1 (child pornography) or of paragraph (1), | ||||||
14 | (2), (3), (4), (5), or (7) of subsection (a) of Section | ||||||
15 | 11-20.1B or 11-20.3 (aggravated child pornography) of the | ||||||
16 | Criminal Code of 1961 or the Criminal Code of 2012; or the | ||||||
17 | defendant was convicted of a violation of paragraph (6) of | ||||||
18 | subsection (a) of Section 11-20.1 (child pornography) or of | ||||||
19 | paragraph (6) of subsection (a) of Section 11-20.1B or | ||||||
20 | 11-20.3 (aggravated child pornography) of the Criminal | ||||||
21 | Code of 1961 or the Criminal Code of 2012, when the child | ||||||
22 | depicted is under the age of 13. | ||||||
23 | (3) The defendant was convicted of armed violence based | ||||||
24 | upon the predicate
offense of any of the following: | ||||||
25 | solicitation of murder, solicitation of murder for hire, | ||||||
26 | heinous battery as described in Section 12-4.1 or |
| |||||||
| |||||||
1 | subdivision (a)(2) of Section 12-3.05, aggravated battery | ||||||
2 | of a senior citizen as described in Section 12-4.6 or | ||||||
3 | subdivision (a)(4) of Section 12-3.05, criminal sexual | ||||||
4 | assault, a violation of subsection (g) of Section 5 of the | ||||||
5 | Cannabis Control Act (720 ILCS 550/5), cannabis | ||||||
6 | trafficking, a violation of subsection (a) of Section 401 | ||||||
7 | of the Illinois Controlled Substances Act (720 ILCS | ||||||
8 | 570/401), controlled substance trafficking involving a | ||||||
9 | Class X felony amount of controlled substance under Section | ||||||
10 | 401 of the Illinois Controlled Substances Act (720 ILCS | ||||||
11 | 570/401), a violation of the Methamphetamine Control and | ||||||
12 | Community Protection Act (720 ILCS 646/), calculated | ||||||
13 | criminal drug conspiracy, or streetgang criminal drug | ||||||
14 | conspiracy. | ||||||
15 | (4) The defendant was convicted of the offense of | ||||||
16 | leaving the scene of a motor
vehicle accident involving | ||||||
17 | death or personal injuries under Section 11-401 of the | ||||||
18 | Illinois Vehicle Code (625 ILCS 5/11-401) and either: (A) | ||||||
19 | aggravated driving under the influence of alcohol, other | ||||||
20 | drug or drugs, or intoxicating compound or compounds, or | ||||||
21 | any combination thereof under Section 11-501 of the | ||||||
22 | Illinois Vehicle Code (625 ILCS 5/11-501), (B) reckless | ||||||
23 | homicide under Section 9-3 of the Criminal Code of 1961 or | ||||||
24 | the Criminal Code of 2012 (720 ILCS 5/9-3), or (C) both an | ||||||
25 | offense described in item (A) and an offense described in | ||||||
26 | item (B). |
| |||||||
| |||||||
1 | (5) The defendant was convicted of a violation of | ||||||
2 | Section 9-3.1 or Section 9-3.4 (concealment of homicidal | ||||||
3 | death) or Section 12-20.5 (dismembering a human body) of | ||||||
4 | the Criminal Code of 1961 or the Criminal Code of 2012 (720 | ||||||
5 | ILCS 5/9-3.1 or 5/12-20.5). | ||||||
6 | (5.5) The defendant was convicted of a violation of | ||||||
7 | Section 24-3.7 (use of a stolen firearm in the commission | ||||||
8 | of an offense) of the Criminal Code of 1961 or the Criminal | ||||||
9 | Code of 2012. | ||||||
10 | (6) If the defendant was in the custody of the | ||||||
11 | Department of Corrections at the
time of the commission of | ||||||
12 | the offense, the sentence shall be served consecutive to | ||||||
13 | the sentence under which the defendant is held by the | ||||||
14 | Department of Corrections. If, however, the defendant is | ||||||
15 | sentenced to punishment by death, the sentence shall be | ||||||
16 | executed at such time as the court may fix without regard | ||||||
17 | to the sentence under which the defendant may be held by | ||||||
18 | the Department. | ||||||
19 | (7) A sentence under Section 3-6-4 (730 ILCS 5/3-6-4) | ||||||
20 | for escape or attempted escape shall be served
consecutive | ||||||
21 | to the terms under which the offender is held by the | ||||||
22 | Department of Corrections. | ||||||
23 | (8) If a person charged with a felony commits a | ||||||
24 | separate felony while on pretrial
release or in pretrial | ||||||
25 | detention in a county jail facility or county detention | ||||||
26 | facility, then the sentences imposed upon conviction of |
| |||||||
| |||||||
1 | these felonies shall be served consecutively regardless of | ||||||
2 | the order in which the judgments of conviction are entered. | ||||||
3 | (8.5) If a person commits a battery against a county | ||||||
4 | correctional officer or sheriff's employee while serving a | ||||||
5 | sentence or in pretrial detention in a county jail | ||||||
6 | facility, then the sentence imposed upon conviction of the | ||||||
7 | battery shall be served consecutively with the sentence | ||||||
8 | imposed upon conviction of the earlier misdemeanor or | ||||||
9 | felony, regardless of the order in which the
judgments of | ||||||
10 | conviction are entered. | ||||||
11 | (9) If a person admitted to bail following conviction | ||||||
12 | of a felony commits a
separate felony while free on bond or | ||||||
13 | if a person detained in a county jail facility or county | ||||||
14 | detention facility following conviction of a felony | ||||||
15 | commits a separate felony while in detention, then any | ||||||
16 | sentence following conviction of the separate felony shall | ||||||
17 | be consecutive to that of the original sentence for which | ||||||
18 | the defendant was on bond or detained.
| ||||||
19 | (10) If a person is found to be in possession of an | ||||||
20 | item of contraband, as defined in Section 31A-0.1 of the | ||||||
21 | Criminal Code of 2012, while serving a sentence in a county | ||||||
22 | jail or while in pre-trial detention in a county jail, the | ||||||
23 | sentence imposed upon conviction for the offense of | ||||||
24 | possessing contraband in a penal institution shall be | ||||||
25 | served consecutively to the sentence imposed for the | ||||||
26 | offense in which the person is serving sentence in the |
| |||||||
| |||||||
1 | county jail or serving pretrial detention, regardless of | ||||||
2 | the order in which the judgments of conviction are entered. | ||||||
3 | (11) If a person is sentenced for a violation of bail | ||||||
4 | bond under Section 32-10 of the Criminal Code of 1961 or | ||||||
5 | the Criminal Code of 2012, any sentence imposed for that | ||||||
6 | violation shall be served
consecutive to the sentence | ||||||
7 | imposed for the charge for which bail had been
granted and | ||||||
8 | with respect to which the defendant has been convicted. | ||||||
9 | (e) Consecutive terms; subsequent non-Illinois term. If an | ||||||
10 | Illinois court has imposed a
sentence of imprisonment on a | ||||||
11 | defendant and the defendant is subsequently sentenced to a term | ||||||
12 | of imprisonment by a court of another state or a federal court, | ||||||
13 | then the Illinois sentence shall run consecutively to the | ||||||
14 | sentence imposed by the court of the other state or the federal | ||||||
15 | court. That same Illinois court, however, may order that the | ||||||
16 | Illinois sentence run concurrently with the sentence imposed by | ||||||
17 | the court of the other state or the federal court, but only if | ||||||
18 | the defendant applies to that same Illinois court within 30 | ||||||
19 | days after the sentence imposed by the court of the other state | ||||||
20 | or the federal court is finalized. | ||||||
21 | (f) Consecutive terms; aggregate maximums and minimums. | ||||||
22 | The aggregate maximum
and aggregate minimum of consecutive | ||||||
23 | sentences shall be determined as follows: | ||||||
24 | (1) For sentences imposed under law in effect prior to | ||||||
25 | February 1, 1978, the
aggregate maximum of consecutive | ||||||
26 | sentences shall not exceed the maximum term authorized |
| |||||||
| |||||||
1 | under Section 5-8-1 (730 ILCS 5/5-8-1) or Article 4.5 of | ||||||
2 | Chapter V for the 2 most serious felonies involved. The | ||||||
3 | aggregate minimum period of consecutive sentences shall | ||||||
4 | not exceed the highest minimum term authorized under | ||||||
5 | Section 5-8-1 (730 ILCS 5/5-8-1) or Article 4.5 of Chapter | ||||||
6 | V for the 2 most serious felonies involved. When sentenced | ||||||
7 | only for misdemeanors, a defendant shall not be | ||||||
8 | consecutively sentenced to more than the maximum for one | ||||||
9 | Class A misdemeanor. | ||||||
10 | (2) For sentences imposed under the law in effect on or | ||||||
11 | after February 1, 1978,
the aggregate of consecutive | ||||||
12 | sentences for offenses that were committed as part of a | ||||||
13 | single
course of conduct during which there was no | ||||||
14 | substantial change in the nature of the criminal objective | ||||||
15 | shall not exceed the sum of the maximum terms authorized | ||||||
16 | under Article 4.5 of Chapter V for the 2 most serious | ||||||
17 | felonies involved, but no such limitation shall apply for | ||||||
18 | offenses that were not committed as part of a single course | ||||||
19 | of conduct during which there was no substantial change in | ||||||
20 | the nature of the criminal objective. When sentenced only | ||||||
21 | for misdemeanors, a defendant shall not be consecutively | ||||||
22 | sentenced to more than the maximum for one Class A | ||||||
23 | misdemeanor.
| ||||||
24 | (g) Consecutive terms; manner served. In determining the | ||||||
25 | manner in which consecutive sentences of imprisonment, one or | ||||||
26 | more of which is for a felony, will be served, the Department |
| |||||||
| |||||||
1 | of Corrections shall treat the defendant as though he or she | ||||||
2 | had been committed for a single term subject to each of the | ||||||
3 | following: | ||||||
4 | (1) The maximum period of a term of imprisonment shall | ||||||
5 | consist of the aggregate
of the maximums of the imposed | ||||||
6 | indeterminate terms, if any, plus the aggregate of the | ||||||
7 | imposed determinate sentences for felonies, plus the | ||||||
8 | aggregate of the imposed determinate sentences for | ||||||
9 | misdemeanors, subject to subsection (f) of this Section. | ||||||
10 | (2) The parole or mandatory supervised release term | ||||||
11 | shall be as provided in
paragraph (e) of Section 5-4.5-50 | ||||||
12 | (730 ILCS 5/5-4.5-50) for the most serious of the offenses | ||||||
13 | involved. | ||||||
14 | (3) The minimum period of imprisonment shall be the | ||||||
15 | aggregate of the minimum
and determinate periods of | ||||||
16 | imprisonment imposed by the court, subject to subsection | ||||||
17 | (f) of this Section. | ||||||
18 | (4) The defendant shall be awarded credit against the | ||||||
19 | aggregate maximum term
and the aggregate minimum term of | ||||||
20 | imprisonment for all time served in an institution since | ||||||
21 | the commission of the offense or offenses and as a | ||||||
22 | consequence thereof at the rate specified in
Section 3-6-3 | ||||||
23 | (730 ILCS 5/3-6-3).
| ||||||
24 | (Source: P.A. 96-190, eff. 1-1-10; 96-1000, eff. 7-2-10; | ||||||
25 | 96-1200, eff. 7-22-10; 96-1551, Article 1, Section 970, eff. | ||||||
26 | 7-1-11; 96-1551, Article 2, Section 1065, eff. 7-1-11; 96-1551, |
| |||||||
| |||||||
1 | Article 10, Section 10-150, eff. 7-1-11; 97-475, eff. 8-22-11; | ||||||
2 | 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1150, eff. | ||||||
3 | 1-25-13.)
|