Full Text of HB5235 97th General Assembly
HB5235ham001 97TH GENERAL ASSEMBLY | Rep. Emily McAsey Filed: 2/28/2012
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| 1 | | AMENDMENT TO HOUSE BILL 5235
| 2 | | AMENDMENT NO. ______. Amend House Bill 5235 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Criminal Code of 1961 is amended by | 5 | | changing Section 11-20.1 as follows:
| 6 | | (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
| 7 | | Sec. 11-20.1. Child pornography.
| 8 | | (a) A person commits 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:
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| 1 | | (i) actually or by simulation engaged in any act of | 2 | | sexual
penetration or sexual conduct
with any person or | 3 | | animal; or
| 4 | | (ii) actually or by simulation engaged in any act | 5 | | of sexual
penetration or sexual conduct
involving the | 6 | | sex organs of the child or severely or
profoundly | 7 | | intellectually disabled person and the mouth, anus, or | 8 | | sex organs of
another person or animal; or which | 9 | | involves the mouth, anus or sex organs
of the child or | 10 | | severely or profoundly intellectually disabled
person | 11 | | and the sex organs of another person or animal; or
| 12 | | (iii) actually or by simulation engaged in any act | 13 | | of masturbation; or
| 14 | | (iv) actually or by simulation portrayed as being | 15 | | the object of, or
otherwise engaged in, any act of lewd | 16 | | fondling, touching, or caressing
involving another | 17 | | person or animal; or
| 18 | | (v) actually or by simulation engaged in any act of | 19 | | excretion or
urination within a sexual context; or
| 20 | | (vi) actually or by simulation portrayed or | 21 | | depicted as bound, fettered,
or subject to sadistic, | 22 | | masochistic, or sadomasochistic abuse in any sexual
| 23 | | context; or
| 24 | | (vii) depicted or portrayed in any pose, posture or | 25 | | setting involving
a lewd exhibition of the unclothed or | 26 | | transparently clothed genitals, pubic area, buttocks, |
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| 1 | | or, if
such person is female, a fully or partially | 2 | | developed breast of the child
or other person; or
| 3 | | (2) with the knowledge of the nature or content | 4 | | thereof, reproduces,
disseminates, offers to disseminate, | 5 | | exhibits or possesses with intent to
disseminate any film, | 6 | | videotape, photograph or other similar visual
reproduction | 7 | | or depiction by computer of any child or severely or | 8 | | profoundly
intellectually disabled person whom the person | 9 | | knows or reasonably should know to be
under the age of 18 | 10 | | and at least 13 years of age or to be a severely or | 11 | | profoundly intellectually disabled person,
engaged in any | 12 | | activity described in subparagraphs (i) through (vii) of
| 13 | | paragraph (1) of this subsection; or
| 14 | | (3) with knowledge of the subject matter or theme | 15 | | thereof, produces any
stage play, live performance, film, | 16 | | videotape or other similar visual
portrayal or depiction by | 17 | | computer which
includes a child whom the person knows or | 18 | | reasonably should
know to be under the age of 18 and at | 19 | | least 13 years of age or a severely or
profoundly | 20 | | intellectually disabled person engaged in any activity | 21 | | described in
subparagraphs (i) through (vii) of paragraph | 22 | | (1) of this subsection; or
| 23 | | (4) solicits, uses, persuades, induces, entices, or | 24 | | coerces any child
whom he or she knows or reasonably should | 25 | | know to be under
the age of 18 and at least 13 years of age | 26 | | or a severely or profoundly intellectually disabled person |
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| 1 | | to appear in any stage play, live presentation, film,
| 2 | | videotape, photograph or other similar visual reproduction | 3 | | or depiction
by computer in which the
child or severely or | 4 | | profoundly intellectually disabled person
is or will be | 5 | | depicted, actually or by simulation, in any act, pose or
| 6 | | setting described in subparagraphs (i) through (vii) of | 7 | | paragraph (1) of
this subsection; or
| 8 | | (5) is a parent, step-parent, legal guardian or other | 9 | | person having
care or custody
of a child whom the person | 10 | | knows or reasonably should know to be under
the age of 18 | 11 | | and at least 13 years of age or a severely or profoundly | 12 | | intellectually disabled person and who knowingly permits, | 13 | | induces, promotes, or arranges
for such child or severely | 14 | | or profoundly intellectually disabled
person to appear in | 15 | | any stage play, live performance, film, videotape,
| 16 | | photograph or other similar visual presentation, portrayal | 17 | | or simulation or
depiction by computer of any act or | 18 | | activity described in subparagraphs (i)
through (vii) of | 19 | | paragraph (1) of this subsection; or
| 20 | | (6) with knowledge of the nature or content thereof, | 21 | | possesses any film,
videotape, photograph or other similar | 22 | | visual reproduction or depiction by
computer of any child | 23 | | or severely or profoundly intellectually disabled person
| 24 | | whom the person knows or reasonably should know to be under | 25 | | the age of 18 and at least 13 years of age
or to be a | 26 | | severely or profoundly intellectually disabled
person, |
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| 1 | | engaged in any activity described in subparagraphs (i) | 2 | | through
(vii) of paragraph (1) of this subsection; or
| 3 | | (7) solicits, or knowingly uses, persuades, induces, | 4 | | entices, or coerces, a person
to provide a child under the | 5 | | age of 18 and at least 13 years of age or a severely or | 6 | | profoundly intellectually disabled person to appear in any | 7 | | videotape, photograph, film, stage play, live
| 8 | | presentation, or other similar visual reproduction or | 9 | | depiction by computer
in which the child or severely or | 10 | | profoundly intellectually disabled person will be
| 11 | | depicted, actually or by simulation, in any act, pose, or | 12 | | setting described in
subparagraphs (i) through (vii) of | 13 | | paragraph (1) of this subsection.
| 14 | | (b) (1) It shall be an affirmative defense to a charge of | 15 | | child
pornography that the defendant reasonably believed, | 16 | | under all of the
circumstances, that the child was 18 years | 17 | | of age or older or that the
person was not a severely or | 18 | | profoundly intellectually disabled person but only where, | 19 | | prior to the act or acts giving rise to a
prosecution under | 20 | | this Section, he or she took some affirmative action or | 21 | | made a
bonafide inquiry designed to ascertain whether the | 22 | | child was 18 years of
age or older or that the person was | 23 | | not a severely or
profoundly intellectually disabled | 24 | | person and his or her reliance upon the information
so | 25 | | obtained was clearly reasonable.
| 26 | | (1.5) Telecommunications carriers, commercial mobile |
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| 1 | | service providers, and providers of information services, | 2 | | including, but not limited to, Internet service providers | 3 | | and hosting service providers, are not liable under this | 4 | | Section by virtue of the transmission, storage, or caching | 5 | | of electronic communications or messages of others or by | 6 | | virtue of the provision of other related | 7 | | telecommunications, commercial mobile services, or | 8 | | information services used by others in violation of this | 9 | | Section.
| 10 | | (2) (Blank).
| 11 | | (3) The charge of child pornography shall not apply to | 12 | | the performance
of official duties by law enforcement or | 13 | | prosecuting officers or persons employed by law | 14 | | enforcement or prosecuting agencies, court personnel
or | 15 | | attorneys, nor to bonafide treatment or professional | 16 | | education programs
conducted by licensed physicians, | 17 | | psychologists or social workers.
| 18 | | (4) If the defendant possessed more than one of the | 19 | | same film,
videotape or visual reproduction or depiction by | 20 | | computer in which child
pornography is depicted, then the | 21 | | trier of fact may infer
that the defendant possessed such
| 22 | | materials with the intent to disseminate them.
| 23 | | (5) The charge of child pornography does not apply to a | 24 | | person who does
not voluntarily possess a film, videotape, | 25 | | or visual reproduction or depiction
by computer in which | 26 | | child pornography is depicted. Possession is voluntary if
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| 1 | | the defendant knowingly procures or receives a film, | 2 | | videotape, or visual
reproduction or depiction for a | 3 | | sufficient time to be able to terminate his
or her | 4 | | possession.
| 5 | | (6) Any violation of paragraph (1), (2), (3), (4), (5), | 6 | | or (7) of subsection (a) that includes a child engaged in, | 7 | | solicited for, depicted in, or posed in any act of sexual | 8 | | penetration or bound, fettered, or subject to sadistic, | 9 | | masochistic, or sadomasochistic abuse in a sexual context | 10 | | shall be deemed a crime of violence. | 11 | | (c) If the violation does not involve a film, videotape, or | 12 | | other moving depiction, a violation of paragraph (1), (4), (5), | 13 | | or (7) of subsection (a) is a
Class 1 felony with a mandatory | 14 | | minimum fine of $2,000 and a maximum fine of
$100,000. If the | 15 | | violation involves a film, videotape, or other moving | 16 | | depiction, a violation of paragraph (1), (4), (5), or (7) of | 17 | | subsection (a) is a
Class X felony with a mandatory minimum | 18 | | fine of $2,000 and a maximum fine of
$100,000. If the violation | 19 | | does not involve a film, videotape, or other moving depiction, | 20 | | a violation of paragraph (3) of subsection (a) is a Class 1 | 21 | | felony
with a mandatory minimum fine of $1500 and a maximum | 22 | | fine of $100,000. If the violation involves a film, videotape, | 23 | | or other moving depiction, a violation of paragraph (3) of | 24 | | subsection (a) is a Class X felony
with a mandatory minimum | 25 | | fine of $1500 and a maximum fine of $100,000.
If the violation | 26 | | does not involve a film, videotape, or other moving depiction, |
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| 1 | | a violation
of paragraph (2) of subsection (a) is a Class 1 | 2 | | felony with a
mandatory minimum fine of $1000 and a maximum | 3 | | fine of $100,000. If the violation involves a film, videotape, | 4 | | or other moving depiction, a violation of paragraph (2) of | 5 | | subsection (a) is a Class X felony with a
mandatory minimum | 6 | | fine of $1000 and a maximum fine of $100,000. If the violation | 7 | | does not involve a film, videotape, or other moving depiction, | 8 | | a violation of
paragraph (6) of subsection (a) is a Class 3 | 9 | | felony with a mandatory
minimum fine of $1000 and a maximum | 10 | | fine of $100,000. If the violation involves a film, videotape, | 11 | | or other moving depiction, a violation of
paragraph (6) of | 12 | | subsection (a) is a Class 2 felony with a mandatory
minimum | 13 | | fine of $1000 and a maximum fine of $100,000.
| 14 | | (c-5) Where the child depicted is under the age of 13, a | 15 | | violation of paragraph (1), (2), (3), (4), (5), or (7) of | 16 | | subsection (a) is a Class X felony with a mandatory minimum | 17 | | fine of $2,000 and a maximum fine of $100,000. Where the child | 18 | | depicted is under the age of 13, a violation of paragraph (6) | 19 | | of subsection (a) is a Class 2 felony with a mandatory minimum | 20 | | fine of $1,000 and a maximum fine of $100,000. Where the child | 21 | | depicted is under the age of 13, a person who commits a | 22 | | violation of paragraph (1), (2), (3), (4), (5), or (7) of | 23 | | subsection (a) where the defendant has previously been | 24 | | convicted under the laws of this State or any other state of | 25 | | the offense of child pornography, aggravated child | 26 | | pornography, aggravated criminal sexual abuse, aggravated |
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| 1 | | criminal sexual assault, predatory criminal sexual assault of a | 2 | | child, or any of the offenses formerly known as rape, deviate | 3 | | sexual assault, indecent liberties with a child, or aggravated | 4 | | indecent liberties with a child where the victim was under the | 5 | | age of 18 years or an offense that is substantially equivalent | 6 | | to those offenses, is guilty of a Class X felony for which the | 7 | | person shall be sentenced to a term of imprisonment of not less | 8 | | than 9 years with a mandatory minimum fine of $2,000 and a | 9 | | maximum fine of $100,000.
Where the child depicted is under the | 10 | | age of 13, a person who commits a violation of paragraph (6) of | 11 | | subsection (a) where the defendant has previously been | 12 | | convicted under the laws of this State or any other state of | 13 | | the offense of child pornography, aggravated child | 14 | | pornography, aggravated criminal sexual abuse, aggravated | 15 | | criminal sexual assault, predatory criminal sexual assault of a | 16 | | child, or any of the offenses formerly known as rape, deviate | 17 | | sexual assault, indecent liberties with a child, or aggravated | 18 | | indecent liberties with a child where the victim was under the | 19 | | age of 18 years or an offense that is substantially equivalent | 20 | | to those offenses, is guilty of a Class 1 felony with a | 21 | | mandatory minimum fine of $1,000 and a maximum fine of | 22 | | $100,000. The issue of whether the child depicted is under the | 23 | | age of 13 is an element of the offense to be resolved by the | 24 | | trier of fact. | 25 | | (d) If a person is convicted of a second or subsequent | 26 | | violation of
this Section within 10 years of a prior |
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| 1 | | conviction, the court shall order a
presentence psychiatric | 2 | | examination of the person. The examiner shall report
to the | 3 | | court whether treatment of the person is necessary.
| 4 | | (e) Any film, videotape, photograph or other similar visual | 5 | | reproduction
or depiction by computer which includes a child | 6 | | under the age of 18 and at least 13 years of age or a
severely | 7 | | or profoundly intellectually disabled person engaged in any | 8 | | activity
described in subparagraphs (i) through (vii) or | 9 | | paragraph 1 of subsection
(a), and any material or equipment | 10 | | used or intended for use in photographing,
filming, printing, | 11 | | producing, reproducing, manufacturing, projecting,
exhibiting, | 12 | | depiction by computer, or disseminating such material shall be
| 13 | | seized and forfeited in the manner, method and procedure | 14 | | provided by Section
36-1 of this Code for the seizure and | 15 | | forfeiture of vessels, vehicles and
aircraft.
| 16 | | In addition, any person convicted under this Section is | 17 | | subject to the property forfeiture provisions set forth in | 18 | | Article 124B of the Code of Criminal Procedure of 1963. | 19 | | (e-5) Upon the conclusion of a case brought under this | 20 | | Section, the court
shall seal all evidence depicting a victim | 21 | | or witness that is sexually
explicit. The evidence may be | 22 | | unsealed and viewed, on a motion of the party
seeking to unseal | 23 | | and view the evidence, only for good cause shown and in the
| 24 | | discretion of the court. The motion must expressly set forth | 25 | | the purpose for
viewing the material. The State's attorney and | 26 | | the victim, if possible, shall
be provided reasonable notice of |
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| 1 | | the hearing on the motion to unseal the
evidence. Any person | 2 | | entitled to notice of a hearing under this subsection
(e-5) may | 3 | | object to the motion.
| 4 | | (f) Definitions. For the purposes of this Section:
| 5 | | (1) "Disseminate" means (i) to sell, distribute, | 6 | | exchange or transfer
possession, whether with or without | 7 | | consideration or (ii) to make a depiction
by computer | 8 | | available for distribution or downloading through the | 9 | | facilities
of any telecommunications network or through | 10 | | any other means of transferring
computer programs or data | 11 | | to a computer.
| 12 | | (2) "Produce" means to direct, promote, advertise, | 13 | | publish, manufacture,
issue, present or show.
| 14 | | (3) "Reproduce" means to make a duplication or copy.
| 15 | | (4) "Depict by computer" means to generate or create, | 16 | | or cause to be
created or generated, a computer program or | 17 | | data that, after being processed by
a computer either alone | 18 | | or in conjunction with one or more computer programs,
| 19 | | results in a visual depiction on a computer monitor, | 20 | | screen, or display.
| 21 | | (5) "Depiction by computer" means a computer program or | 22 | | data that, after
being processed by a computer either alone | 23 | | or in conjunction with one or more
computer programs, | 24 | | results in a visual depiction on a computer monitor, | 25 | | screen,
or display.
| 26 | | (6) "Computer", "computer program", and "data" have |
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| 1 | | the meanings
ascribed to them in Section 16D-2 of this | 2 | | Code.
| 3 | | (7) For the purposes of this Section, "child | 4 | | pornography" includes a film, videotape, photograph, or | 5 | | other similar
visual medium or reproduction or depiction by | 6 | | computer that is, or appears to
be, that of a person, | 7 | | either in part, or in total, under the age of 18 and at | 8 | | least 13 years of age or a severely or profoundly | 9 | | intellectually disabled mentally retarded person,
| 10 | | regardless of the method by which the film, videotape, | 11 | | photograph, or other
similar visual medium or reproduction | 12 | | or depiction by computer is created,
adopted, or modified | 13 | | to appear as such. "Child pornography" also includes a | 14 | | film,
videotape, photograph, or other similar visual | 15 | | medium or reproduction or
depiction by computer that is | 16 | | advertised, promoted, presented, described, or
distributed | 17 | | in such a manner that conveys the impression that the film,
| 18 | | videotape, photograph, or other similar visual medium or | 19 | | reproduction or
depiction by computer is of a person under | 20 | | the age of 18 and at least 13 years of age or a severely or | 21 | | profoundly intellectually disabled mentally retarded | 22 | | person.
| 23 | | (g) Re-enactment; findings; purposes.
| 24 | | (1) The General Assembly finds and declares that:
| 25 | | (i) Section 50-5 of Public Act 88-680, effective | 26 | | January 1, 1995,
contained provisions amending the |
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| 1 | | child pornography statute, Section 11-20.1
of the | 2 | | Criminal Code of 1961. Section 50-5 also contained | 3 | | other provisions.
| 4 | | (ii) In addition, Public Act 88-680 was entitled | 5 | | "AN ACT to create a
Safe Neighborhoods Law". (A) | 6 | | Article 5 was entitled JUVENILE JUSTICE and
amended the | 7 | | Juvenile Court Act of 1987. (B) Article 15 was entitled | 8 | | GANGS and
amended various provisions of the Criminal | 9 | | Code of 1961 and the Unified Code
of Corrections. (C) | 10 | | Article 20 was entitled ALCOHOL ABUSE and amended | 11 | | various
provisions of the Illinois Vehicle Code. (D) | 12 | | Article 25 was entitled DRUG
ABUSE and amended the | 13 | | Cannabis Control Act and the Illinois Controlled
| 14 | | Substances Act. (E) Article 30 was entitled FIREARMS | 15 | | and amended the Criminal
Code of 1961 and the Code of | 16 | | Criminal Procedure of 1963. (F) Article 35
amended the | 17 | | Criminal Code of 1961, the Rights of Crime Victims and | 18 | | Witnesses
Act, and the Unified Code of Corrections. (G) | 19 | | Article 40 amended the Criminal
Code of 1961 to | 20 | | increase the penalty for compelling organization | 21 | | membership of
persons. (H) Article 45 created the | 22 | | Secure Residential Youth Care Facility
Licensing Act | 23 | | and amended the State Finance Act, the Juvenile Court | 24 | | Act of
1987, the Unified Code of Corrections, and the | 25 | | Private Correctional Facility
Moratorium Act. (I) | 26 | | Article 50 amended the WIC Vendor Management Act, the
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| 1 | | Firearm Owners Identification Card Act, the Juvenile | 2 | | Court Act of 1987, the
Criminal Code of 1961, the | 3 | | Wrongs to Children Act, and the Unified Code of
| 4 | | Corrections.
| 5 | | (iii) On September 22, 1998, the Third District | 6 | | Appellate Court in
People v. Dainty, 701 N.E. 2d 118, | 7 | | ruled that Public Act 88-680 violates the
single | 8 | | subject clause of the Illinois Constitution (Article | 9 | | IV, Section 8 (d))
and was unconstitutional in its | 10 | | entirety. As of the time this amendatory Act
of 1999 | 11 | | was prepared, People v. Dainty was still subject to | 12 | | appeal.
| 13 | | (iv) Child pornography is a vital concern to the | 14 | | people of this State
and the validity of future | 15 | | prosecutions under the child pornography statute of
| 16 | | the Criminal Code of 1961 is in grave doubt.
| 17 | | (2) It is the purpose of this amendatory Act of 1999 to | 18 | | prevent or
minimize any problems relating to prosecutions | 19 | | for child pornography that may
result from challenges to | 20 | | the constitutional validity of Public Act 88-680 by
| 21 | | re-enacting the Section relating to child pornography that | 22 | | was included in
Public Act 88-680.
| 23 | | (3) This amendatory Act of 1999 re-enacts Section | 24 | | 11-20.1 of the
Criminal Code of 1961, as it has been | 25 | | amended. This re-enactment is intended
to remove any | 26 | | question as to the validity or content of that Section; it |
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| 1 | | is not
intended to supersede any other Public Act that | 2 | | amends the text of the Section
as set forth in this | 3 | | amendatory Act of 1999. The material is shown as existing
| 4 | | text (i.e., without underscoring) because, as of the time | 5 | | this amendatory Act
of 1999 was prepared, People v. Dainty | 6 | | was subject to appeal to the Illinois
Supreme Court.
| 7 | | (4) The re-enactment by this amendatory Act of 1999 of | 8 | | Section 11-20.1 of
the Criminal Code of 1961 relating to | 9 | | child pornography that was amended by
Public Act 88-680 is | 10 | | not intended, and shall not be construed, to imply that
| 11 | | Public Act 88-680 is invalid or to limit or impair any | 12 | | legal argument
concerning whether those provisions were | 13 | | substantially re-enacted by other
Public Acts.
| 14 | | (Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10; | 15 | | 96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-157, eff. | 16 | | 1-1-12; 97-227, eff. 1-1-12; revised 9-12-11.)
| 17 | | (720 ILCS 5/11-20.1B rep.) | 18 | | Section 10. The Criminal Code of 1961 is amended by | 19 | | repealing Section 11-20.1B.".
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