Full Text of HB3571 94th General Assembly
HB3571 94TH GENERAL ASSEMBLY
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94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006 HB3571
Introduced 2/24/2005, by Rep. John A. Fritchey SYNOPSIS AS INTRODUCED: |
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720 ILCS 5/11-21 |
from Ch. 38, par. 11-21 |
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Amends the Criminal Code of 1961. Deletes provisions concerning the distribution and exhibition of harmful material to minors and replaces it with the following provisions: (i) provides that a person is guilty of distributing harmful material to a minor when he or she knowingly sells, lends, distributes, or gives away certain material knowing that the minor is a person under the age of 18 or failing to exercise reasonable care in ascertaining the person's true age, or he or she admits a minor to premises where there is exhibited or to be exhibited such harmful material, (ii) provides that distribution of harmful material to a minor is a Class A misdemeanor, and (iii) establishes several affirmative defenses. Makes other changes.
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| CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY | |
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A BILL FOR
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HB3571 |
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LRB094 09286 RXD 39524 b |
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| AN ACT concerning criminal law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Criminal Code of 1961 is amended by changing | 5 |
| Section 11-21 as follows:
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| (720 ILCS 5/11-21) (from Ch. 38, par. 11-21)
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| Sec. 11-21. Harmful material.
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| (a) As used in this Section:
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| "Distribute" means transfer possession of, whether | 10 |
| with or without consideration.
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| "Harmful to minors" means that quality of any | 12 |
| description or representation, in whatever form, of | 13 |
| nudity, sexual conduct, sexual excitement, or | 14 |
| sado-masochistic abuse, when, taken as a whole, it (i) | 15 |
| predominately appeals to the prurient interest in sex of | 16 |
| minors, (ii) is patently offensive to prevailing standards | 17 |
| in the adult community in the State as a whole with respect | 18 |
| to what is suitable material for minors, and (iii) lacks | 19 |
| serious literary, artistic, political, or scientific value | 20 |
| for minors.
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| "Knowingly" means having knowledge of the contents of | 22 |
| the subject matter, or recklessly failing to exercise | 23 |
| reasonable inspection which would have disclosed the | 24 |
| contents.
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| "Material" means (i) any picture, photograph, drawing, | 26 |
| sculpture, film, video game, computer game, video or | 27 |
| similar visual depiction, including any such | 28 |
| representation or image which is stored electronically, or | 29 |
| (ii) any book, magazine, printed matter however | 30 |
| reproduced, or recorded audio of any sort.
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| "Minor" means any person under the age of 18.
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| "Nudity" means the showing of the human male or female |
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| genitals, pubic area or buttocks with less than a full | 2 |
| opaque covering, or the showing of the female breast with | 3 |
| less than a fully opaque covering of any portion below the | 4 |
| top of the nipple, or the depiction of covered male | 5 |
| genitals in a discernably turgid state.
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| "Sado-masochistic abuse" means flagellation or torture | 7 |
| by or upon a person clad in undergarments, a mask or | 8 |
| bizarre costume, or the condition of being fettered, bound | 9 |
| or otherwise physically restrained on the part of one | 10 |
| clothed for sexual gratification or stimulation.
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| "Sexual conduct" means acts of masturbation, sexual | 12 |
| intercourse, or physical contact with a person's clothed or | 13 |
| unclothed genitals, pubic area, buttocks or, if such person | 14 |
| be a female, breast.
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| "Sexual excitement" means the condition of human male | 16 |
| or female genitals when in a state of sexual stimulation or | 17 |
| arousal.
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| (b) A person is guilty of distributing harmful material to | 19 |
| a minor when he or she:
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| (1) knowingly sells, lends, distributes, or gives away | 21 |
| to a minor, knowing that the minor is under the age of 18 | 22 |
| or failing to exercise reasonable care in ascertaining the | 23 |
| person's true age:
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| (A) any material which depicts nudity, sexual | 25 |
| conduct or sado-masochistic abuse, or which contains | 26 |
| explicit and detailed verbal descriptions or narrative | 27 |
| accounts of sexual excitement, sexual conduct or | 28 |
| sado-masochistic abuse, and which taken as a whole is | 29 |
| harmful to minors;
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| (B) a motion picture, show, or other presentation | 31 |
| which depicts nudity, sexual conduct or | 32 |
| sado-masochistic abuse and is harmful to minors; or
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| (C) an admission ticket or pass to premises where | 34 |
| there is exhibited or to be exhibited such a motion | 35 |
| picture, show, or other presentation; or
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| (2) admits a minor to premises where there is exhibited |
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| or to be exhibited such a motion picture, show, or other | 2 |
| presentation, knowing that the minor is a person under the | 3 |
| age of 18 or failing to exercise reasonable care in | 4 |
| ascertaining the person's true age.
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| (c) In any prosecution arising under this Section, it is an | 6 |
| affirmative defense:
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| (1) that the minor as to whom the offense is alleged to | 8 |
| have been committed exhibited to the accused a draft card, | 9 |
| driver's license, birth certificate or other official or | 10 |
| apparently official document purporting to establish that | 11 |
| the minor was 18 years of age or older, which was relied | 12 |
| upon by the accused;
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| (2) that the defendant was in a parental or | 14 |
| guardianship relationship with the minor or that the minor | 15 |
| was accompanied by a parent or legal guardian;
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| (3) that the defendant was a bona fide school, museum, | 17 |
| or public library, or was a person acting in the course of | 18 |
| his or her employment as an employee or official of such | 19 |
| organization or retail outlet affiliated with and serving | 20 |
| the educational purpose of such organization;
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| (4) that the act charged was committed in aid of | 22 |
| legitimate scientific or educational purposes; or
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| (5) that an advertisement of harmful material as | 24 |
| defined in this Section culminated in the sale or | 25 |
| distribution of such harmful material to a child under | 26 |
| circumstances where there was no personal confrontation of | 27 |
| the child by the defendant, his employees, or agents, as | 28 |
| where the order or request for such harmful material was | 29 |
| transmitted by mail, telephone, Internet or similar means | 30 |
| of communication, and delivery of such harmful material to | 31 |
| the child was by mail, freight, Internet or similar means | 32 |
| of transport, which advertisement contained the following | 33 |
| statement, or a substantially similar statement, and that | 34 |
| the defendant required the purchaser to certify that he or | 35 |
| she was not under the age of 18 and that the purchaser | 36 |
| falsely stated that he or she was not under the age of 18: |
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| "NOTICE: It is unlawful for any person under the age of 18 | 2 |
| to purchase the matter advertised. Any person under the age | 3 |
| of 18 that falsely states that he or she is not under the | 4 |
| age of 18 for the purpose of obtaining the material | 5 |
| advertised is guilty of a Class B misdemeanor under the | 6 |
| laws of the State."
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| (d) The predominant appeal to prurient interest of the | 8 |
| material shall be judged with reference to average children of | 9 |
| the same general age of the child to whom such material was | 10 |
| sold, lent, distributed or given, unless it appears from the | 11 |
| nature of the matter or the circumstances of its dissemination | 12 |
| or distribution that it is designed for specially susceptible | 13 |
| groups, in which case the predominant appeal of the material | 14 |
| shall be judged with reference to its intended or probable | 15 |
| recipient group.
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| (e) Distribution of harmful material in violation of this | 17 |
| Section is a Class A misdemeanor. A second or subsequent | 18 |
| offense is a Class 4 felony.
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| (f) Any person under the age of 18 that falsely states, | 20 |
| either orally or in writing, that he or she is not under the | 21 |
| age of 18, or that presents or offers to any person any | 22 |
| evidence of age and identity that is false or not actually his | 23 |
| or her own for the purpose of ordering, obtaining, viewing, or | 24 |
| otherwise procuring or attempting to procure or view any | 25 |
| harmful material is guilty of a Class B misdemeanor.
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| (a) Elements of the Offense.
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| A person who, with knowledge that a person is a child, that | 28 |
| is a person
under 18 years of age, or who fails to exercise | 29 |
| reasonable care in
ascertaining the true age of a child, | 30 |
| knowingly distributes to or sends or
causes to be sent to, or | 31 |
| exhibits to, or offers to distribute or exhibit
any harmful | 32 |
| material to a child, is guilty of a misdemeanor.
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| (b) Definitions.
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| (1) Material is harmful if, to the average person, applying | 35 |
| contemporary
standards, its predominant appeal, taken as a | 36 |
| whole, is to prurient
interest, that is a shameful or morbid |
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| interest in nudity, sex, or
excretion, which goes substantially | 2 |
| beyond customary limits of candor in
description or | 3 |
| representation of such matters, and is material the
redeeming | 4 |
| social importance of which is substantially less than its
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| prurient appeal.
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| (2) Material, as used in this Section means any writing, | 7 |
| picture, record
or other representation or embodiment.
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| (3) Distribute means to transfer possession of, whether | 9 |
| with or without
consideration.
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| (4) Knowingly, as used in this section means having | 11 |
| knowledge of the
contents of the subject matter, or recklessly | 12 |
| failing to exercise
reasonable inspection which would have | 13 |
| disclosed the contents thereof.
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| (c) Interpretation of Evidence.
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| The predominant appeal to prurient interest of the material | 16 |
| shall be
judged with reference to average children of the same | 17 |
| general age of the
child to whom such material was offered, | 18 |
| distributed, sent or exhibited,
unless it appears from the | 19 |
| nature of the matter or the circumstances of its
dissemination, | 20 |
| distribution or exhibition that it is designed for specially
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| susceptible groups, in which case the predominant appeal of the | 22 |
| material
shall be judged with reference to its intended or | 23 |
| probable recipient group.
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| In prosecutions under this section, where circumstances of | 25 |
| production,
presentation, sale, dissemination, distribution, | 26 |
| or publicity indicate the
material is being commercially | 27 |
| exploited for the sake of its prurient
appeal, such evidence is | 28 |
| probative with respect to the nature of the
material and can | 29 |
| justify the conclusion that the redeeming social
importance of | 30 |
| the material is in fact substantially less than its prurient
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| appeal.
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| (d) Sentence.
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| Distribution of harmful material in violation of this | 34 |
| Section is a Class
A misdemeanor. A second or subsequent | 35 |
| offense is a Class 4 felony.
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| (e) Affirmative Defenses.
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| (1) Nothing in this section shall prohibit any public | 2 |
| library or any
library operated by an accredited institution of | 3 |
| higher education from
circulating harmful material to any | 4 |
| person under 18 years of age, provided
such circulation is in | 5 |
| aid of a legitimate scientific or educational
purpose, and it | 6 |
| shall be an affirmative defense in any prosecution for a
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| violation of this section that the act charged was committed in | 8 |
| aid of
legitimate scientific or educational purposes.
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| (2) Nothing in this section shall prohibit any parent from | 10 |
| distributing
to his child any harmful material.
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| (3) Proof that the defendant demanded, was shown and acted | 12 |
| in reliance
upon any of the following documents as proof of the | 13 |
| age of a child, shall
be a defense to any criminal prosecution | 14 |
| under this section: A document
issued by the federal government | 15 |
| or any state, county or municipal
government or subdivision or | 16 |
| agency thereof, including, but not limited to,
a motor vehicle | 17 |
| operator's license, a registration certificate issued under
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| the Federal Selective Service Act or an identification card | 19 |
| issued to a
member of the armed forces.
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| (4) In the event an advertisement of harmful material as | 21 |
| defined in this
section culminates in the sale or distribution | 22 |
| of such harmful material to
a child, under circumstances where | 23 |
| there was no personal confrontation of
the child by the | 24 |
| defendant, his employees or agents, as where the order or
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| request for such harmful material was transmitted by mail, | 26 |
| telephone, or
similar means of communication, and delivery of | 27 |
| such harmful material to
the child was by mail, freight, or | 28 |
| similar means of transport, it shall be
a defense in any | 29 |
| prosecution for a violation of this section that the
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| advertisement contained the following statement, or a | 31 |
| statement
substantially similar thereto, and that the | 32 |
| defendant required the
purchaser to certify that he was not | 33 |
| under 18 years of age and that the
purchaser falsely stated | 34 |
| that he was not under 18 years of age: "NOTICE: It
is unlawful | 35 |
| for any person under 18 years of age to purchase the matter
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| herein advertised. Any person under 18 years of age who falsely |
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| states that
he is not under 18 years of age for the purpose of | 2 |
| obtaining the material
advertised herein, is guilty of a Class | 3 |
| B misdemeanor under the laws of the
State of Illinois."
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| (f) Child Falsifying Age.
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| Any person under 18 years of age who falsely states, either | 6 |
| orally or in
writing, that he is not under the age of 18 years, | 7 |
| or who presents or
offers to any person any evidence of age and | 8 |
| identity which is false or not
actually his own for the purpose | 9 |
| of ordering, obtaining, viewing, or
otherwise procuring or | 10 |
| attempting to procure or view any harmful material,
is guilty | 11 |
| of a Class B misdemeanor.
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| (Source: P.A. 77-2638.)
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