Full Text of HB1464 103rd General Assembly
HB1464 103RD GENERAL ASSEMBLY |
| | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024 HB1464 Introduced 1/31/2023, by Rep. Tony M. McCombie SYNOPSIS AS INTRODUCED: |
| 720 ILCS 5/11-9.1 | from Ch. 38, par. 11-9.1 | 720 ILCS 5/11-21 | from Ch. 38, par. 11-21 |
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Amends the Criminal Code of 2012. Provides that a person commits sexual exploitation of a child when he or she knowingly entices, coerces, or persuades a child to participate in the production of the recording or memorializing a sexual act. Provides that a violation is a Class 4 felony for a first offense and a Class 3 felony for a second or subsequent offense or if the person has been previously convicted of a sex offense. Provides that a person commits distributing harmful material when he or she knowingly entices, coerces, or persuades a minor to participate in the production of the recording or memorializing a sexual act. Provides that a violation is a Class 4 felony if the person has been previously convicted of a sex offense. Provides that a second or subsequent violation is a Class 3 felony.
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| | 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,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Criminal Code of 2012 is amended by | 5 | | changing Sections 11-9.1 and 11-21 as follows:
| 6 | | (720 ILCS 5/11-9.1) (from Ch. 38, par. 11-9.1)
| 7 | | Sec. 11-9.1. Sexual exploitation of a child.
| 8 | | (a) A person commits sexual exploitation of a child if in | 9 | | the presence
or virtual presence, or both, of a child and with | 10 | | knowledge that a child or one whom he or she believes to be a | 11 | | child would view his or her
acts, that person:
| 12 | | (1) engages in a sexual act; or
| 13 | | (2) exposes his or her sex organs, anus or breast for | 14 | | the purpose of
sexual arousal or gratification of such | 15 | | person or the child or one whom he or she believes to be a | 16 | | child ; or . | 17 | | (3) knowingly entices, coerces, or persuades a child | 18 | | to participate in the production of the recording or | 19 | | memorializing a sexual act.
| 20 | | (a-5) A person commits sexual exploitation of a child who | 21 | | knowingly
entices, coerces, or persuades a child to remove the | 22 | | child's clothing for the
purpose of sexual arousal or | 23 | | gratification of the person or the child, or
both.
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| 1 | | (b) Definitions. As used in this Section:
| 2 | | "Sexual act" means masturbation, sexual conduct or sexual | 3 | | penetration
as defined in Section 11-0.1 of this Code.
| 4 | | "Sex offense" means any violation
of
Article 11 of this | 5 | | Code.
| 6 | | "Child" means a person under 17 years of age.
| 7 | | "Virtual presence" means an environment that is created | 8 | | with software and presented to the user and or receiver via the | 9 | | Internet, in such a way that the user appears in front of the | 10 | | receiver on the computer monitor or screen or hand-held | 11 | | portable electronic device, usually through a web camming | 12 | | program. "Virtual presence" includes primarily experiencing | 13 | | through sight or sound, or both, a video image that can be | 14 | | explored interactively at a personal computer or hand-held | 15 | | communication device, or both. | 16 | | "Webcam" means a video capturing device connected to a | 17 | | computer or computer network that is designed to take digital | 18 | | photographs or live or recorded video which allows for the | 19 | | live transmission to an end user over the Internet. | 20 | | (c) Sentence.
| 21 | | (1) Sexual exploitation of a child is a Class A | 22 | | misdemeanor. A second
or subsequent violation of this | 23 | | Section or a substantially similar law of another state is | 24 | | a Class 4 felony.
| 25 | | (2) Sexual exploitation of a child is a Class 4 felony | 26 | | if the person has
been previously convicted of a sex |
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| 1 | | offense. | 2 | | (3) Sexual exploitation of a child is a Class 4 felony | 3 | | if the victim was under 13 years of age at the time of the | 4 | | commission of the offense.
| 5 | | (4) Sexual exploitation of a child is a Class 4 felony | 6 | | if committed by a person 18 years of age or older who is on | 7 | | or within 500 feet of elementary or secondary school | 8 | | grounds when children are present on the grounds. | 9 | | (5) A violation of paragraph (3) of subsection (a) is: | 10 | | a Class 4 felony for a first offense; and a Class 3 felony | 11 | | for a second or subsequent offense, or if the person has | 12 | | been previously convicted of a sex offense. | 13 | | | 14 | | (Source: P.A. 102-168, eff. 7-27-21.)
| 15 | | (720 ILCS 5/11-21) (from Ch. 38, par. 11-21)
| 16 | | Sec. 11-21. Harmful material.
| 17 | | (a) As used in this Section:
| 18 | | "Distribute" means to transfer possession of, whether | 19 | | with or without consideration.
| 20 | | "Harmful to minors" means that quality of any | 21 | | description or representation, in whatever form, of | 22 | | nudity, sexual conduct, sexual excitement, or | 23 | | sado-masochistic abuse, when, taken as a whole, it (i) | 24 | | predominantly predominately appeals to the prurient | 25 | | interest in sex of minors, (ii) is patently offensive to |
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| 1 | | prevailing standards in the adult community in the State | 2 | | as a whole with respect to what is suitable material for | 3 | | minors, and (iii) lacks serious literary, artistic, | 4 | | political, or scientific value for minors.
| 5 | | "Knowingly" means having knowledge of the contents of | 6 | | the subject matter, or recklessly failing to exercise | 7 | | reasonable inspection which would have disclosed the | 8 | | contents.
| 9 | | "Material" means (i) any picture, photograph, drawing, | 10 | | sculpture, film, video game, computer game, video or | 11 | | similar visual depiction, including any such | 12 | | representation or image which is stored electronically, or | 13 | | (ii) any book, magazine, printed matter however | 14 | | reproduced, or recorded audio of any sort.
| 15 | | "Minor" means any person under the age of 18.
| 16 | | "Nudity" means the showing of the human male or female | 17 | | genitals, pubic area or buttocks with less than a fully | 18 | | opaque covering, or the showing of the female breast with | 19 | | less than a fully opaque covering of any portion below the | 20 | | top of the nipple, or the depiction of covered male | 21 | | genitals in a discernibly turgid state.
| 22 | | "Sado-masochistic abuse" means flagellation or torture | 23 | | by or upon a person clad in undergarments, a mask or | 24 | | bizarre costume, or the condition of being fettered, bound | 25 | | or otherwise physically restrained on the part of one | 26 | | clothed for sexual gratification or stimulation.
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| 1 | | "Sexual conduct" means acts of masturbation, sexual | 2 | | intercourse, or physical contact with a person's clothed | 3 | | or unclothed genitals, pubic area, buttocks or, if such | 4 | | person be a female, breast.
| 5 | | "Sexual excitement" means the condition of human male | 6 | | or female genitals when in a state of sexual stimulation | 7 | | or arousal.
| 8 | | "Sex offense" and "sexual act" have the meanings | 9 | | ascribed to them in Section 11-9.1. | 10 | | (b) A person is guilty of distributing harmful material to | 11 | | a minor when he or she:
| 12 | | (1) knowingly sells, lends, distributes, exhibits to, | 13 | | depicts to, or gives away to a minor, knowing that the | 14 | | minor is under the age of 18 or failing to exercise | 15 | | reasonable care in ascertaining the person's true age:
| 16 | | (A) any material which depicts nudity, sexual | 17 | | conduct or sado-masochistic abuse, or which contains | 18 | | explicit and detailed verbal descriptions or narrative | 19 | | accounts of sexual excitement, sexual conduct or | 20 | | sado-masochistic abuse, and which taken as a whole is | 21 | | harmful to minors;
| 22 | | (B) a motion picture, show, or other presentation | 23 | | which depicts nudity, sexual conduct or | 24 | | sado-masochistic abuse and is harmful to minors; or
| 25 | | (C) an admission ticket or pass to premises where | 26 | | there is exhibited or to be exhibited such a motion |
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| 1 | | picture, show, or other presentation; or
| 2 | | (2) admits a minor to premises where there is | 3 | | exhibited or to be exhibited such a motion picture, show, | 4 | | or other presentation, knowing that the minor is a person | 5 | | under the age of 18 or failing to exercise reasonable care | 6 | | in ascertaining the person's true age ; or .
| 7 | | (3) knowingly entices, coerces, or persuades a minor | 8 | | to participate in the production of the recording or | 9 | | memorializing a sexual act. | 10 | | (c) In any prosecution arising under this Section, it is | 11 | | an affirmative defense:
| 12 | | (1) that the minor as to whom the offense is alleged to | 13 | | have been committed exhibited to the accused a draft card, | 14 | | driver's license, birth certificate or other official or | 15 | | apparently official document purporting to establish that | 16 | | the minor was 18 years of age or older, which was relied | 17 | | upon by the accused;
| 18 | | (2) that the defendant was in a parental or | 19 | | guardianship relationship with the minor or that the minor | 20 | | was accompanied by a parent or legal guardian;
| 21 | | (3) that the defendant was a bona fide school, museum, | 22 | | or public library, or was a person acting in the course of | 23 | | his or her employment as an employee or official of such | 24 | | organization or retail outlet affiliated with and serving | 25 | | the educational purpose of such organization;
| 26 | | (4) that the act charged was committed in aid of |
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| 1 | | legitimate scientific or educational purposes; or
| 2 | | (5) that an advertisement of harmful material as | 3 | | defined in this Section culminated in the sale or | 4 | | distribution of such harmful material to a child under | 5 | | circumstances where there was no personal confrontation of | 6 | | the child by the defendant, his or her employees, or | 7 | | agents, as where the order or request for such harmful | 8 | | material was transmitted by mail, telephone, Internet or | 9 | | similar means of communication, and delivery of such | 10 | | harmful material to the child was by mail, freight, | 11 | | Internet or similar means of transport, which | 12 | | advertisement contained the following statement, or a | 13 | | substantially similar statement, and that the defendant | 14 | | required the purchaser to certify that he or she was not | 15 | | under the age of 18 and that the purchaser falsely stated | 16 | | that he or she was not under the age of 18: "NOTICE: It is | 17 | | unlawful for any person under the age of 18 to purchase the | 18 | | matter advertised. Any person under the age of 18 that | 19 | | falsely states that he or she is not under the age of 18 | 20 | | for the purpose of obtaining the material advertised is | 21 | | guilty of a Class B misdemeanor under the laws of the | 22 | | State."
| 23 | | (d) The predominant appeal to prurient interest of the | 24 | | material shall be judged with reference to average children of | 25 | | the same general age of the child to whom such material was | 26 | | sold, lent, distributed or given, unless it appears from the |
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| 1 | | nature of the matter or the circumstances of its dissemination | 2 | | or distribution that it is designed for specially susceptible | 3 | | groups, in which case the predominant appeal of the material | 4 | | shall be judged with reference to its intended or probable | 5 | | recipient group.
| 6 | | (e) Distribution of harmful material in violation of this | 7 | | Section is a Class A misdemeanor. A second or subsequent | 8 | | offense is a Class 4 felony. A violation of paragraph (3) of | 9 | | subsection (b) is a Class 4 felony if the person has been | 10 | | previously convicted of a sex offense. A second or subsequent | 11 | | violation of paragraph (3) of subsection (b) is a Class 3 | 12 | | felony. | 13 | | (f) Any person under the age of 18 who falsely states, | 14 | | either orally or in writing, that he or she is not under the | 15 | | age of 18, or who presents or offers to any person any evidence | 16 | | of age and identity that is false or not actually his or her | 17 | | own with the intent of ordering, obtaining, viewing, or | 18 | | otherwise procuring or attempting to procure or view any | 19 | | harmful material is guilty of a Class B misdemeanor.
| 20 | | (g) A person over the age of 18 who fails to exercise | 21 | | reasonable care in ascertaining the true age of a minor, | 22 | | knowingly distributes to, or sends, or causes to be sent, or | 23 | | exhibits to, or offers to distribute, or exhibits any harmful | 24 | | material to a person that he or she believes is a minor is | 25 | | guilty of a Class A misdemeanor. If that person utilized a | 26 | | computer web camera, cellular telephone, or any other type of |
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| 1 | | device to manufacture the harmful material, then each offense | 2 | | is a Class 4 felony. | 3 | | (h) Telecommunications carriers, commercial mobile service | 4 | | providers, and providers of information services, including, | 5 | | but not limited to, Internet service providers and hosting | 6 | | service providers, are not liable under this Section, except | 7 | | for willful and wanton misconduct, by virtue of the | 8 | | transmission, storage, or caching of electronic communications | 9 | | or messages of others or by virtue of the provision of other | 10 | | related telecommunications, commercial mobile services, or | 11 | | information services used by others in violation of this | 12 | | Section. | 13 | | (Source: P.A. 99-642, eff. 7-28-16.)
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