Illinois General Assembly - Full Text of SB2567
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Full Text of SB2567  102nd General Assembly

SB2567eng 102ND GENERAL ASSEMBLY

  
  
  

 


 
SB2567 EngrossedLRB102 16570 KMF 21967 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Abused and Neglected Child Reporting Act is
5amended by changing Section 3 as follows:
 
6    (325 ILCS 5/3)  (from Ch. 23, par. 2053)
7    Sec. 3. As used in this Act unless the context otherwise
8requires:
9    "Adult resident" means any person between 18 and 22 years
10of age who resides in any facility licensed by the Department
11under the Child Care Act of 1969. For purposes of this Act, the
12criteria set forth in the definitions of "abused child" and
13"neglected child" shall be used in determining whether an
14adult resident is abused or neglected.
15    "Agency" means a child care facility licensed under
16Section 2.05 or Section 2.06 of the Child Care Act of 1969 and
17includes a transitional living program that accepts children
18and adult residents for placement who are in the guardianship
19of the Department.
20    "Blatant disregard" means an incident where the real,
21significant, and imminent risk of harm would be so obvious to a
22reasonable parent or caretaker that it is unlikely that a
23reasonable parent or caretaker would have exposed the child to

 

 

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1the danger without exercising precautionary measures to
2protect the child from harm. With respect to a person working
3at an agency in his or her professional capacity with a child
4or adult resident, "blatant disregard" includes a failure by
5the person to perform job responsibilities intended to protect
6the child's or adult resident's health, physical well-being,
7or welfare, and, when viewed in light of the surrounding
8circumstances, evidence exists that would cause a reasonable
9person to believe that the child was neglected. With respect
10to an agency, "blatant disregard" includes a failure to
11implement practices that ensure the health, physical
12well-being, or welfare of the children and adult residents
13residing in the facility.
14    "Child" means any person under the age of 18 years, unless
15legally emancipated by reason of marriage or entry into a
16branch of the United States armed services.
17    "Department" means Department of Children and Family
18Services.
19    "Local law enforcement agency" means the police of a city,
20town, village or other incorporated area or the sheriff of an
21unincorporated area or any sworn officer of the Illinois
22Department of State Police.
23    "Abused child" means a child whose parent or immediate
24family member, or any person responsible for the child's
25welfare, or any individual residing in the same home as the
26child, or a paramour of the child's parent:

 

 

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1        (a) inflicts, causes to be inflicted, or allows to be
2    inflicted upon such child physical injury, by other than
3    accidental means, which causes death, disfigurement,
4    impairment of physical or emotional health, or loss or
5    impairment of any bodily function;
6        (b) creates a substantial risk of physical injury to
7    such child by other than accidental means which would be
8    likely to cause death, disfigurement, impairment of
9    physical or emotional health, or loss or impairment of any
10    bodily function;
11        (c) commits or allows to be committed any sex offense
12    against such child, as such sex offenses are defined in
13    the Criminal Code of 2012 or in the Wrongs to Children Act,
14    and extending those definitions of sex offenses to include
15    children under 18 years of age;
16        (d) commits or allows to be committed an act or acts of
17    torture upon such child;
18        (e) inflicts excessive corporal punishment or, in the
19    case of a person working for an agency who is prohibited
20    from using corporal punishment, inflicts corporal
21    punishment upon a child or adult resident with whom the
22    person is working in his or her professional capacity;
23        (f) commits or allows to be committed the offense of
24    female genital mutilation, as defined in Section 12-34 of
25    the Criminal Code of 2012, against the child;
26        (g) causes to be sold, transferred, distributed, or

 

 

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1    given to such child under 18 years of age, a controlled
2    substance as defined in Section 102 of the Illinois
3    Controlled Substances Act in violation of Article IV of
4    the Illinois Controlled Substances Act or in violation of
5    the Methamphetamine Control and Community Protection Act,
6    except for controlled substances that are prescribed in
7    accordance with Article III of the Illinois Controlled
8    Substances Act and are dispensed to such child in a manner
9    that substantially complies with the prescription; or
10        (h) commits or allows to be committed the offense of
11    involuntary servitude, involuntary sexual servitude of a
12    minor, or trafficking in persons as defined in Section
13    10-9 of the Criminal Code of 2012 against the child.
14    A child shall not be considered abused for the sole reason
15that the child has been relinquished in accordance with the
16Abandoned Newborn Infant Protection Act.
17    "Neglected child" means any child who is not receiving the
18proper or necessary nourishment or medically indicated
19treatment including food or care not provided solely on the
20basis of the present or anticipated mental or physical
21impairment as determined by a physician acting alone or in
22consultation with other physicians or otherwise is not
23receiving the proper or necessary support or medical or other
24remedial care recognized under State law as necessary for a
25child's well-being, or other care necessary for his or her
26well-being, including adequate food, clothing and shelter; or

 

 

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1who is subjected to an environment which is injurious insofar
2as (i) the child's environment creates a likelihood of harm to
3the child's health, physical well-being, or welfare and (ii)
4the likely harm to the child is the result of a blatant
5disregard of parent, caretaker, person responsible for the
6child's welfare, or agency responsibilities; or who is
7abandoned by his or her parents or other person responsible
8for the child's welfare without a proper plan of care; or who
9has been provided with interim crisis intervention services
10under Section 3-5 of the Juvenile Court Act of 1987 and whose
11parent, guardian, or custodian refuses to permit the child to
12return home and no other living arrangement agreeable to the
13parent, guardian, or custodian can be made, and the parent,
14guardian, or custodian has not made any other appropriate
15living arrangement for the child; or who is a newborn infant
16whose blood, urine, or meconium contains any amount of a
17controlled substance as defined in subsection (f) of Section
18102 of the Illinois Controlled Substances Act or a metabolite
19thereof, with the exception of a controlled substance or
20metabolite thereof whose presence in the newborn infant is the
21result of medical treatment administered to the mother or the
22newborn infant. A child shall not be considered neglected for
23the sole reason that the child's parent or other person
24responsible for his or her welfare has left the child in the
25care of an adult relative for any period of time. A child shall
26not be considered neglected for the sole reason that the child

 

 

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1has been relinquished in accordance with the Abandoned Newborn
2Infant Protection Act. A child shall not be considered
3neglected or abused for the sole reason that such child's
4parent or other person responsible for his or her welfare
5depends upon spiritual means through prayer alone for the
6treatment or cure of disease or remedial care as provided
7under Section 4 of this Act. A child shall not be considered
8neglected or abused solely because the child is not attending
9school in accordance with the requirements of Article 26 of
10The School Code, as amended.
11    "Child Protective Service Unit" means certain specialized
12State employees of the Department assigned by the Director to
13perform the duties and responsibilities as provided under
14Section 7.2 of this Act.
15    "Near fatality" means an act that, as certified by a
16physician, places the child in serious or critical condition,
17including acts of great bodily harm inflicted upon children
18under 13 years of age, and as otherwise defined by Department
19rule.
20    "Great bodily harm" includes bodily injury which creates a
21high probability of death, or which causes serious permanent
22disfigurement, or which causes a permanent or protracted loss
23or impairment of the function of any bodily member or organ, or
24other serious bodily harm.
25    "Person responsible for the child's welfare" means the
26child's parent; guardian; foster parent; relative caregiver;

 

 

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1any person responsible for the child's welfare in a public or
2private residential agency or institution; any person
3responsible for the child's welfare within a public or private
4profit or not for profit child care facility; or any other
5person responsible for the child's welfare at the time of the
6alleged abuse or neglect, including any person who commits or
7allows to be committed, that is the custodian of a child under
818 years of age who commits or allows to be committed, against
9the child, the offense of involuntary servitude, involuntary
10sexual servitude of a minor, or trafficking in persons for
11forced labor or services, as provided in Section 10-9 of the
12Criminal Code of 2012, including but not limited to the
13custodian of the minor, or any person who came to know the
14child through an official capacity or position of trust,
15including but not limited to health care professionals,
16educational personnel, recreational supervisors, members of
17the clergy, and volunteers or support personnel in any setting
18where children may be subject to abuse or neglect.
19    "Temporary protective custody" means custody within a
20hospital or other medical facility or a place previously
21designated for such custody by the Department, subject to
22review by the Court, including a licensed foster home, group
23home, or other institution; but such place shall not be a jail
24or other place for the detention of criminal or juvenile
25offenders.
26    "An unfounded report" means any report made under this Act

 

 

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1for which it is determined after an investigation that no
2credible evidence of abuse or neglect exists.
3    "An indicated report" means a report made under this Act
4if an investigation determines that credible evidence of the
5alleged abuse or neglect exists.
6    "An undetermined report" means any report made under this
7Act in which it was not possible to initiate or complete an
8investigation on the basis of information provided to the
9Department.
10    "Subject of report" means any child reported to the
11central register of child abuse and neglect established under
12Section 7.7 of this Act as an alleged victim of child abuse or
13neglect and the parent or guardian of the alleged victim or
14other person responsible for the alleged victim's welfare who
15is named in the report or added to the report as an alleged
16perpetrator of child abuse or neglect.
17    "Perpetrator" means a person who, as a result of
18investigation, has been determined by the Department to have
19caused child abuse or neglect.
20    "Member of the clergy" means a clergyman or practitioner
21of any religious denomination accredited by the religious body
22to which he or she belongs.
23(Source: P.A. 99-350, eff. 6-1-16; 100-733, eff. 1-1-19.)
 
24    Section 10. The Criminal Code of 2012 is amended by
25changing Sections 11-0.1, 11-1.60, 11-20.1, 11-1.70, and 26-4

 

 

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1as follows:
 
2    (720 ILCS 5/11-0.1)
3    Sec. 11-0.1. Definitions. In this Article, unless the
4context clearly requires otherwise, the following terms are
5defined as indicated:
6    "Accused" means a person accused of an offense prohibited
7by Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, or 11-1.60 of
8this Code or a person for whose conduct the accused is legally
9responsible under Article 5 of this Code.
10    "Adult obscenity or child pornography Internet site". See
11Section 11-23.
12    "Advance prostitution" means:
13        (1) Soliciting for a prostitute by performing any of
14    the following acts when acting other than as a prostitute
15    or a patron of a prostitute:
16            (A) Soliciting another for the purpose of
17        prostitution.
18            (B) Arranging or offering to arrange a meeting of
19        persons for the purpose of prostitution.
20            (C) Directing another to a place knowing the
21        direction is for the purpose of prostitution.
22        (2) Keeping a place of prostitution by controlling or
23    exercising control over the use of any place that could
24    offer seclusion or shelter for the practice of
25    prostitution and performing any of the following acts when

 

 

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1    acting other than as a prostitute or a patron of a
2    prostitute:
3            (A) Knowingly granting or permitting the use of
4        the place for the purpose of prostitution.
5            (B) Granting or permitting the use of the place
6        under circumstances from which he or she could
7        reasonably know that the place is used or is to be used
8        for purposes of prostitution.
9            (C) Permitting the continued use of the place
10        after becoming aware of facts or circumstances from
11        which he or she should reasonably know that the place
12        is being used for purposes of prostitution.
13    "Agency". See Section 11-9.5.
14    "Arranges". See Section 11-6.5.
15    "Bodily harm" means physical harm, and includes, but is
16not limited to, sexually transmitted disease, pregnancy, and
17impotence.
18    "Care and custody". See Section 11-9.5.
19    "Child care institution". See Section 11-9.3.
20    "Child pornography". See Section 11-20.1.
21    "Child sex offender". See Section 11-9.3.
22    "Community agency". See Section 11-9.5.
23    "Conditional release". See Section 11-9.2.
24    "Consent" means a freely given agreement to the act of
25sexual penetration or sexual conduct in question. Lack of
26verbal or physical resistance or submission by the victim

 

 

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1resulting from the use of force or threat of force by the
2accused shall not constitute consent. The manner of dress of
3the victim at the time of the offense shall not constitute
4consent. See Section 11-1.70.
5    "Custody". See Section 11-9.2.
6    "Day care center". See Section 11-9.3.
7    "Depict by computer". See Section 11-20.1.
8    "Depiction by computer". See Section 11-20.1.
9    "Disseminate". See Section 11-20.1.
10    "Distribute". See Section 11-21.
11    "Family member" means a parent, grandparent, child, aunt,
12uncle, great-aunt, or great-uncle, whether by whole blood,
13half-blood, or adoption, and includes a step-grandparent,
14step-parent, or step-child. "Family member" also means, if the
15victim is a child under 18 years of age, an accused who has
16resided in the household with the child continuously for at
17least 6 months.
18    "Force or threat of force" means the use of force or
19violence or the threat of force or violence, including, but
20not limited to, the following situations:
21        (1) when the accused threatens to use force or
22    violence on the victim or on any other person, and the
23    victim under the circumstances reasonably believes that
24    the accused has the ability to execute that threat; or
25        (2) when the accused overcomes the victim by use of
26    superior strength or size, physical restraint, or physical

 

 

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1    confinement.
2    "Harmful to minors". See Section 11-21.
3    "Loiter". See Section 9.3.
4    "Material". See Section 11-21.
5    "Minor". See Section 11-21.
6    "Nudity". See Section 11-21.
7    "Obscene". See Section 11-20.
8    "Part day child care facility". See Section 11-9.3.
9    "Penal system". See Section 11-9.2.
10    "Person responsible for the child's welfare". See Section
1111-9.1A.
12    "Person with a disability". See Section 11-9.5.
13    "Playground". See Section 11-9.3.
14    "Probation officer". See Section 11-9.2.
15    "Produce". See Section 11-20.1.
16    "Profit from prostitution" means, when acting other than
17as a prostitute, to receive anything of value for personally
18rendered prostitution services or to receive anything of value
19from a prostitute, if the thing received is not for lawful
20consideration and the person knows it was earned in whole or in
21part from the practice of prostitution.
22    "Public park". See Section 11-9.3.
23    "Public place". See Section 11-30.
24    "Reproduce". See Section 11-20.1.
25    "Sado-masochistic abuse". See Section 11-21.
26    "School". See Section 11-9.3.

 

 

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1    "School official". See Section 11-9.3.
2    "Sexual abuse". See Section 11-9.1A.
3    "Sexual act". See Section 11-9.1.
4    "Sexual conduct" means any knowing touching or fondling by
5the victim or the accused, either directly or through
6clothing, of the sex organs, anus, or breast of the victim or
7the accused, or any part of the body of a child under 13 years
8of age, or any transfer or transmission of semen by the accused
9upon any part of the clothed or unclothed body of the victim,
10for the purpose of sexual gratification or arousal of the
11victim or the accused.
12    "Sexual excitement". See Section 11-21.
13    "Sexual penetration" means any contact, however slight,
14between the sex organ or anus of one person and an object or
15the sex organ, mouth, or anus of another person, or any
16intrusion, however slight, of any part of the body of one
17person or of any animal or object into the sex organ or anus of
18another person, including, but not limited to, cunnilingus,
19fellatio, or anal penetration. Evidence of emission of semen
20is not required to prove sexual penetration.
21    "Solicit". See Section 11-6.
22    "State-operated facility". See Section 11-9.5.
23    "Supervising officer". See Section 11-9.2.
24    "Surveillance agent". See Section 11-9.2.
25    "Treatment and detention facility". See Section 11-9.2.
26    "Unable to give knowing consent" includes when the accused

 

 

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1administers any intoxicating or anesthetic substance, or any
2controlled substance causing the victim to become unconscious
3of the nature of the act and this condition was known, or
4reasonably should have been known by the accused. As used in
5this paragraph, "unconscious of the nature of the act" means
6incapable of resisting because the victim meets any one of the
7following conditions:
8        (1) was unconscious or asleep;
9        (2) was not aware, knowing, perceiving, or cognizant
10    that the act occurred;
11        (3) was not aware, knowing, perceiving, or cognizant
12    of the essential characteristics of the act due to the
13    perpetrator's fraud in fact; or
14        (4) was not aware, knowing, perceiving, or cognizant
15    of the essential characteristics of the act due to the
16    perpetrator's fraudulent representation that the sexual
17    penetration served a professional purpose when it served
18    no professional purpose.
19    A victim is presumed "unable to give knowing consent" when
20the victim:
21        (1) is committed to the care and custody or
22    supervision of the Illinois Department of Corrections
23    (IDOC) and the accused is an employee or volunteer who is
24    not married to the victim who knows or reasonably should
25    know that the victim is committed to the care and custody
26    or supervision of such department;

 

 

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1        (2) is committed to or placed with the Department of
2    Children and Family Services (DCFS) and in residential
3    care, and the accused employee is not married to the
4    victim, and knows or reasonably should know that the
5    victim is committed to or placed with DCFS and in
6    residential care;
7        (3) is a client or patient and the accused is a health
8    care provider or mental health care provider and the
9    sexual conduct or sexual penetration occurs during a
10    treatment session, consultation, interview, or
11    examination;
12        (4) is a resident or inpatient of a residential
13    facility and the accused is an employee of the facility
14    who is not married to such resident or inpatient who
15    provides direct care services, case management services,
16    medical or other clinical services, habilitative services
17    or direct supervision of the residents in the facility in
18    which the resident resides; or an officer or other
19    employee, consultant, contractor or volunteer of the
20    residential facility, who knows or reasonably should know
21    that the person is a resident of such facility; or
22        (5) is detained or otherwise in the custody of a
23    police officer, peace officer, or other law enforcement
24    official who: (i) is detaining or maintaining custody of
25    such person; or (ii) knows, or reasonably should know,
26    that at the time of the offense, such person was detained

 

 

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1    or in custody and the police officer, peace officer, or
2    other law enforcement official is not married to such
3    detainee.
4    "Victim" means a person alleging to have been subjected to
5an offense prohibited by Section 11-1.20, 11-1.30, 11-1.40,
611-1.50, or 11-1.60 of this Code.
7(Source: P.A. 96-1551, eff. 7-1-11.)
 
8    (720 ILCS 5/11-1.60)  (was 720 ILCS 5/12-16)
9    Sec. 11-1.60. Aggravated criminal sexual abuse.
10    (a) A person commits aggravated criminal sexual abuse if
11that person commits criminal sexual abuse and any of the
12following aggravating circumstances exist (i) during the
13commission of the offense or (ii) for purposes of paragraph
14(7), as part of the same course of conduct as the commission of
15the offense:
16        (1) the person displays, threatens to use, or uses a
17    dangerous weapon or any other object fashioned or used in
18    a manner that leads the victim, under the circumstances,
19    reasonably to believe that the object is a dangerous
20    weapon;
21        (2) the person causes bodily harm to the victim;
22        (3) the victim is 60 years of age or older;
23        (4) the victim is a person with a physical disability;
24        (5) the person acts in a manner that threatens or
25    endangers the life of the victim or any other person;

 

 

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1        (6) the person commits the criminal sexual abuse
2    during the course of committing or attempting to commit
3    any other felony; or
4        (7) the person delivers (by injection, inhalation,
5    ingestion, transfer of possession, or any other means) any
6    controlled substance to the victim for other than medical
7    purposes without the victim's consent or by threat or
8    deception.
9    (b) A person commits aggravated criminal sexual abuse if
10that person commits an act of sexual conduct with a victim who
11is under 18 years of age and the person is a family member.
12    (c) A person commits aggravated criminal sexual abuse if:
13        (1) that person is 17 years of age or over and: (i)
14    commits an act of sexual conduct with a victim who is under
15    13 years of age; or (ii) commits an act of sexual conduct
16    with a victim who is at least 13 years of age but under 17
17    years of age and the person uses force or threat of force
18    to commit the act; or
19        (2) that person is under 17 years of age and: (i)
20    commits an act of sexual conduct with a victim who is under
21    9 years of age; or (ii) commits an act of sexual conduct
22    with a victim who is at least 9 years of age but under 17
23    years of age and the person uses force or threat of force
24    to commit the act.
25    (d) A person commits aggravated criminal sexual abuse if
26that person commits an act of sexual penetration or sexual

 

 

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1conduct with a victim who is at least 13 years of age but under
217 years of age and the person is at least 5 years older than
3the victim.
4    (e) A person commits aggravated criminal sexual abuse if
5that person commits an act of sexual conduct with a victim who
6is a person with a severe or profound intellectual disability.
7    (f) A person commits aggravated criminal sexual abuse if
8that person commits an act of sexual conduct with a victim who
9is at least 13 years of age but under 18 years of age and the
10person is 17 years of age or over and holds a position of
11trust, authority, or supervision in relation to the victim.
12    (g) Sentence. Aggravated criminal sexual abuse for a
13violation of subsection (a), (b), (c), (d) or (e) of this
14Section is a Class 2 felony. Aggravated criminal sexual abuse
15for a violation of subsection (f) of this Section is a Class 1
16felony. Aggravated criminal sexual abuse is a Class 2 felony.
17(Source: P.A. 99-143, eff. 7-27-15.)
 
18    (720 ILCS 5/11-1.70)  (was 720 ILCS 5/12-17)
19    Sec. 11-1.70. Defenses with respect to offenses described
20in Sections 11-1.20 through 11-1.60.
21    (a) It shall be a defense to any offense under Section
2211-1.20, 11-1.30, 11-1.40, 11-1.50, or 11-1.60 of this Code
23where force or threat of force is an element of the offense
24that the victim consented. "Consent" means a freely given
25agreement to the act of sexual penetration or sexual conduct

 

 

SB2567 Engrossed- 19 -LRB102 16570 KMF 21967 b

1in question. Lack of verbal or physical resistance or
2submission by the victim resulting from the use of force or
3threat of force by the accused shall not constitute consent.
4The manner of dress of the victim at the time of the offense
5shall not constitute consent.
6    (b) It shall be a defense under subsection (b) and
7subsection (c) of Section 11-1.50 and subsection (d) of
8Section 11-1.60 of this Code that the accused reasonably
9believed the person to be 17 years of age or over.
10    (c) A person who initially consents to sexual penetration
11or sexual conduct is not deemed to have consented to any sexual
12penetration or sexual conduct that occurs after he or she
13withdraws consent during the course of that sexual penetration
14or sexual conduct.
15(Source: P.A. 96-1551, eff. 7-1-11.)
 
16    (720 ILCS 5/11-20.1)  (from Ch. 38, par. 11-20.1)
17    Sec. 11-20.1. Child pornography.
18    (a) A person commits child pornography who:
19        (1) films, videotapes, photographs, or otherwise
20    depicts or portrays by means of any similar visual medium
21    or reproduction or depicts by computer any child whom he
22    or she knows or reasonably should know to be under the age
23    of 18 or any person with a severe or profound intellectual
24    disability where such child or person with a severe or
25    profound intellectual disability is:

 

 

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1            (i) actually or by simulation engaged in any act
2        of sexual penetration or sexual conduct with any
3        person or 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 person with a severe or
7        profound intellectual disability and the mouth, anus,
8        or sex organs of another person or animal; or which
9        involves the mouth, anus or sex organs of the child or
10        person with a severe or profound intellectual
11        disability and the sex organs of another person or
12        animal; or
13            (iii) actually or by simulation engaged in any act
14        of masturbation; or
15            (iv) actually or by simulation portrayed as being
16        the object of, or otherwise engaged in, any act of lewd
17        fondling, touching, or caressing involving another
18        person or animal; or
19            (v) actually or by simulation engaged in any act
20        of excretion or urination within a sexual context; or
21            (vi) actually or by simulation portrayed or
22        depicted as bound, fettered, or subject to sadistic,
23        masochistic, or sadomasochistic abuse in any sexual
24        context; or
25            (vii) depicted or portrayed in any pose, posture
26        or setting involving a lewd exhibition of the

 

 

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1        unclothed or transparently clothed genitals, pubic
2        area, buttocks, or, if such person is female, a fully
3        or partially developed breast of the child or other
4        person; or
5        (2) with the knowledge of the nature or content
6    thereof, reproduces, disseminates, offers to disseminate,
7    exhibits or possesses with intent to disseminate any film,
8    videotape, photograph or other similar visual reproduction
9    or depiction by computer of any child or person with a
10    severe or profound intellectual disability whom the person
11    knows or reasonably should know to be under the age of 18
12    or to be a person with a severe or profound intellectual
13    disability, engaged in any activity described in
14    subparagraphs (i) through (vii) of paragraph (1) of this
15    subsection; or
16        (3) with knowledge of the subject matter or theme
17    thereof, produces any stage play, live performance, film,
18    videotape or other similar visual portrayal or depiction
19    by computer which includes a child whom the person knows
20    or reasonably should know to be under the age of 18 or a
21    person with a severe or profound intellectual disability
22    engaged in any activity described in subparagraphs (i)
23    through (vii) of paragraph (1) of this subsection; or
24        (4) solicits, uses, persuades, induces, entices, or
25    coerces any child whom he or she knows or reasonably
26    should know to be under the age of 18 or a person with a

 

 

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

 

 

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1    or profound intellectual disability, engaged in any
2    activity described in subparagraphs (i) through (vii) of
3    paragraph (1) of this subsection; or
4        (7) solicits, or knowingly uses, persuades, induces,
5    entices, or coerces, a person to provide a child under the
6    age of 18 or a person with a severe or profound
7    intellectual disability to appear in any videotape,
8    photograph, film, stage play, live presentation, or other
9    similar visual reproduction or depiction by computer in
10    which the child or person with a severe or profound
11    intellectual disability will be depicted, actually or by
12    simulation, in any act, pose, or setting described in
13    subparagraphs (i) through (vii) of paragraph (1) of this
14    subsection.
15    (a-5) The possession of each individual film, videotape,
16photograph, or other similar visual reproduction or depiction
17by computer in violation of this Section constitutes a single
18and separate violation. This subsection (a-5) does not apply
19to multiple copies of the same film, videotape, photograph, or
20other similar visual reproduction or depiction by computer
21that are identical to each other.
22    (b)(1) It shall be an affirmative defense to a charge of
23child pornography that the defendant reasonably believed,
24under all of the circumstances, that the child was 18 years of
25age or older or that the person was not a person with a severe
26or profound intellectual disability but only where, prior to

 

 

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1the act or acts giving rise to a prosecution under this
2Section, he or she took some affirmative action or made a
3bonafide inquiry designed to ascertain whether the child was
418 years of age or older or that the person was not a person
5with a severe or profound intellectual disability and his or
6her reliance upon the information so obtained was clearly
7reasonable.
8    (1.5) Telecommunications carriers, commercial mobile
9service providers, and providers of information services,
10including, but not limited to, Internet service providers and
11hosting service providers, are not liable under this Section
12by virtue of the transmission, storage, or caching of
13electronic communications or messages of others or by virtue
14of the provision of other related telecommunications,
15commercial mobile services, or information services used by
16others in violation of this Section.
17    (2) (Blank).
18    (3) The charge of child pornography shall not apply to the
19performance of official duties by law enforcement or
20prosecuting officers or persons employed by law enforcement or
21prosecuting agencies, court personnel or attorneys, nor to
22bonafide treatment or professional education programs
23conducted by licensed physicians, psychologists or social
24workers. In any criminal proceeding, any property or material
25that constitutes child pornography shall remain in the care,
26custody, and control of either the State or the court. A motion

 

 

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1to view the evidence shall comply with subsection (e-5) of
2this Section.
3    (4) If the defendant possessed more than one of the same
4film, videotape or visual reproduction or depiction by
5computer in which child pornography is depicted, then the
6trier of fact may infer that the defendant possessed such
7materials with the intent to disseminate them.
8    (5) The charge of child pornography does not apply to a
9person who does not voluntarily possess a film, videotape, or
10visual reproduction or depiction by computer in which child
11pornography is depicted. Possession is voluntary if the
12defendant knowingly procures or receives a film, videotape, or
13visual reproduction or depiction for a sufficient time to be
14able to terminate his or her possession.
15    (6) Any violation of paragraph (1), (2), (3), (4), (5), or
16(7) of subsection (a) that includes a child engaged in,
17solicited for, depicted in, or posed in any act of sexual
18penetration or bound, fettered, or subject to sadistic,
19masochistic, or sadomasochistic abuse in a sexual context
20shall be deemed a crime of violence.
21    (c) If the violation does not involve a film, videotape,
22or other moving depiction, a violation of paragraph (1), (4),
23(5), or (7) of subsection (a) is a Class 1 felony with a
24mandatory minimum fine of $2,000 and a maximum fine of
25$100,000. If the violation involves a film, videotape, or
26other moving depiction, a violation of paragraph (1), (4),

 

 

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1(5), or (7) of subsection (a) is a Class X felony with a
2mandatory minimum fine of $2,000 and a maximum fine of
3$100,000. If the violation does not involve a film, videotape,
4or other moving depiction, a violation of paragraph (3) of
5subsection (a) is a Class 1 felony with a mandatory minimum
6fine of $1500 and a maximum fine of $100,000. If the violation
7involves a film, videotape, or other moving depiction, a
8violation of paragraph (3) of subsection (a) is a Class X
9felony with a mandatory minimum fine of $1500 and a maximum
10fine of $100,000. If the violation does not involve a film,
11videotape, or other moving depiction, a violation of paragraph
12(2) of subsection (a) is a Class 1 felony with a mandatory
13minimum fine of $1000 and a maximum fine of $100,000. If the
14violation involves a film, videotape, or other moving
15depiction, a violation of paragraph (2) of subsection (a) is a
16Class X felony with a mandatory minimum fine of $1000 and a
17maximum fine of $100,000. If the violation does not involve a
18film, videotape, or other moving depiction, a violation of
19paragraph (6) of subsection (a) is a Class 3 felony with a
20mandatory minimum fine of $1000 and a maximum fine of
21$100,000. If the violation involves a film, videotape, or
22other moving depiction, a violation of paragraph (6) of
23subsection (a) is a Class 2 felony with a mandatory minimum
24fine of $1000 and a maximum fine of $100,000.
25    (c-5) Where the child depicted is under the age of 13, a
26violation of paragraph (1), (2), (3), (4), (5), or (7) of

 

 

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1subsection (a) is a Class X felony with a mandatory minimum
2fine of $2,000 and a maximum fine of $100,000. Where the child
3depicted is under the age of 13, a violation of paragraph (6)
4of subsection (a) is a Class 2 felony with a mandatory minimum
5fine of $1,000 and a maximum fine of $100,000. Where the child
6depicted is under the age of 13, a person who commits a
7violation of paragraph (1), (2), (3), (4), (5), or (7) of
8subsection (a) where the defendant has previously been
9convicted under the laws of this State or any other state of
10the offense of child pornography, aggravated child
11pornography, aggravated criminal sexual abuse, aggravated
12criminal sexual assault, predatory criminal sexual assault of
13a child, or any of the offenses formerly known as rape, deviate
14sexual assault, indecent liberties with a child, or aggravated
15indecent liberties with a child where the victim was under the
16age of 18 years or an offense that is substantially equivalent
17to those offenses, is guilty of a Class X felony for which the
18person shall be sentenced to a term of imprisonment of not less
19than 9 years with a mandatory minimum fine of $2,000 and a
20maximum fine of $100,000. Where the child depicted is under
21the age of 13, a person who commits a violation of paragraph
22(6) of subsection (a) where the defendant has previously been
23convicted under the laws of this State or any other state of
24the offense of child pornography, aggravated child
25pornography, aggravated criminal sexual abuse, aggravated
26criminal sexual assault, predatory criminal sexual assault of

 

 

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1a child, or any of the offenses formerly known as rape, deviate
2sexual assault, indecent liberties with a child, or aggravated
3indecent liberties with a child where the victim was under the
4age of 18 years or an offense that is substantially equivalent
5to those offenses, is guilty of a Class 1 felony with a
6mandatory minimum fine of $1,000 and a maximum fine of
7$100,000. The issue of whether the child depicted is under the
8age of 13 is an element of the offense to be resolved by the
9trier of fact.
10    (d) If a person is convicted of a second or subsequent
11violation of this Section within 10 years of a prior
12conviction, the court shall order a presentence psychiatric
13examination of the person. The examiner shall report to the
14court whether treatment of the person is necessary.
15    (e) Any film, videotape, photograph or other similar
16visual reproduction or depiction by computer which includes a
17child under the age of 18 or a person with a severe or profound
18intellectual disability engaged in any activity described in
19subparagraphs (i) through (vii) or paragraph 1 of subsection
20(a), and any material or equipment used or intended for use in
21photographing, filming, printing, producing, reproducing,
22manufacturing, projecting, exhibiting, depiction by computer,
23or disseminating such material shall be seized and forfeited
24in the manner, method and procedure provided by Section 36-1
25of this Code for the seizure and forfeiture of vessels,
26vehicles and aircraft.

 

 

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

 

 

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1    or cause to be created or generated, a computer program or
2    data that, after being processed by a computer either
3    alone or in conjunction with one or more computer
4    programs, results in a visual depiction on a computer
5    monitor, screen, or display.
6        (5) "Depiction by computer" means a computer program
7    or data that, after being processed by a computer either
8    alone or in conjunction with one or more computer
9    programs, results in a visual depiction on a computer
10    monitor, screen, or display.
11        (6) "Computer", "computer program", and "data" have
12    the meanings ascribed to them in Section 17.05 of this
13    Code.
14        (7) For the purposes of this Section, "child
15    pornography" includes a film, videotape, photograph, or
16    other similar visual medium or reproduction or depiction
17    by computer that is, or appears to be, that of a person,
18    either in part, or in total, under the age of 18 or a
19    person with a severe or profound intellectual disability,
20    regardless of the method by which the film, videotape,
21    photograph, or other similar visual medium or reproduction
22    or depiction by computer is created, adopted, or modified
23    to appear as such. "Child pornography" also includes a
24    film, videotape, photograph, or other similar visual
25    medium or reproduction or depiction by computer that is
26    advertised, promoted, presented, described, or distributed

 

 

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1    in such a manner that conveys the impression that the
2    film, videotape, photograph, or other similar visual
3    medium or reproduction or depiction by computer is of a
4    person under the age of 18 or a person with a severe or
5    profound intellectual disability.
6    (g) Re-enactment; findings; purposes.
7        (1) The General Assembly finds and declares that:
8            (i) Section 50-5 of Public Act 88-680, effective
9        January 1, 1995, contained provisions amending the
10        child pornography statute, Section 11-20.1 of the
11        Criminal Code of 1961. Section 50-5 also contained
12        other provisions.
13            (ii) In addition, Public Act 88-680 was entitled
14        "AN ACT to create a Safe Neighborhoods Law". (A)
15        Article 5 was entitled JUVENILE JUSTICE and amended
16        the Juvenile Court Act of 1987. (B) Article 15 was
17        entitled GANGS and amended various provisions of the
18        Criminal Code of 1961 and the Unified Code of
19        Corrections. (C) Article 20 was entitled ALCOHOL ABUSE
20        and amended various provisions of the Illinois Vehicle
21        Code. (D) Article 25 was entitled DRUG ABUSE and
22        amended the Cannabis Control Act and the Illinois
23        Controlled Substances Act. (E) Article 30 was entitled
24        FIREARMS and amended the Criminal Code of 1961 and the
25        Code of Criminal Procedure of 1963. (F) Article 35
26        amended the Criminal Code of 1961, the Rights of Crime

 

 

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1        Victims and Witnesses Act, and the Unified Code of
2        Corrections. (G) Article 40 amended the Criminal Code
3        of 1961 to increase the penalty for compelling
4        organization membership of persons. (H) Article 45
5        created the Secure Residential Youth Care Facility
6        Licensing Act and amended the State Finance Act, the
7        Juvenile Court Act of 1987, the Unified Code of
8        Corrections, and the Private Correctional Facility
9        Moratorium Act. (I) Article 50 amended the WIC Vendor
10        Management Act, the Firearm Owners Identification Card
11        Act, the Juvenile Court Act of 1987, the Criminal Code
12        of 1961, the Wrongs to Children Act, and the Unified
13        Code of Corrections.
14            (iii) On September 22, 1998, the Third District
15        Appellate Court in People v. Dainty, 701 N.E. 2d 118,
16        ruled that Public Act 88-680 violates the single
17        subject clause of the Illinois Constitution (Article
18        IV, Section 8 (d)) and was unconstitutional in its
19        entirety. As of the time this amendatory Act of 1999
20        was prepared, People v. Dainty was still subject to
21        appeal.
22            (iv) Child pornography is a vital concern to the
23        people of this State and the validity of future
24        prosecutions under the child pornography statute of
25        the Criminal Code of 1961 is in grave doubt.
26        (2) It is the purpose of this amendatory Act of 1999 to

 

 

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1    prevent or minimize any problems relating to prosecutions
2    for child pornography that may result from challenges to
3    the constitutional validity of Public Act 88-680 by
4    re-enacting the Section relating to child pornography that
5    was included in Public Act 88-680.
6        (3) This amendatory Act of 1999 re-enacts Section
7    11-20.1 of the Criminal Code of 1961, as it has been
8    amended. This re-enactment is intended to remove any
9    question as to the validity or content of that Section; it
10    is not intended to supersede any other Public Act that
11    amends the text of the Section as set forth in this
12    amendatory Act of 1999. The material is shown as existing
13    text (i.e., without underscoring) because, as of the time
14    this amendatory Act of 1999 was prepared, People v. Dainty
15    was subject to appeal to the Illinois Supreme Court.
16        (4) The re-enactment by this amendatory Act of 1999 of
17    Section 11-20.1 of the Criminal Code of 1961 relating to
18    child pornography that was amended by Public Act 88-680 is
19    not intended, and shall not be construed, to imply that
20    Public Act 88-680 is invalid or to limit or impair any
21    legal argument concerning whether those provisions were
22    substantially re-enacted by other Public Acts.
23(Source: P.A. 101-87, eff. 1-1-20.)
 
24    (720 ILCS 5/26-4)  (from Ch. 38, par. 26-4)
25    Sec. 26-4. Unauthorized video recording and live video

 

 

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1transmission.
2    (a) It is unlawful for any person to knowingly make a video
3record or transmit live video of another person without that
4person's consent in a restroom, tanning bed, tanning salon,
5locker room, changing room, or hotel bedroom.
6    (a-5) It is unlawful for any person to knowingly make a
7video record or transmit live video of another person in that
8other person's residence without that person's consent.
9    (a-6) It is unlawful for any person to knowingly make a
10video record or transmit live video of another person in that
11other person's residence without that person's consent when
12the recording or transmission is made outside that person's
13residence by use of an audio or video device that records or
14transmits from a remote location.
15    (a-10) It is unlawful for any person to knowingly make a
16video record or transmit live video of another person's
17intimate parts person under or through the clothing worn by
18that other person for the purpose of viewing the body of or the
19undergarments worn by that other person without that person's
20consent. For the purposes of this subsection (a-10), "intimate
21parts" means the fully unclothed, partially unclothed, or
22transparently clothed genitals, pubic area, anus, or if the
23person is female, a partially or fully exposed nipple,
24including exposure through transparent clothing.
25    (a-15) It is unlawful for any person to place or cause to
26be placed a device that makes a video record or transmits a

 

 

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1live video in a restroom, tanning bed, tanning salon, locker
2room, changing room, or hotel bedroom with the intent to make a
3video record or transmit live video of another person without
4that person's consent.
5    (a-20) It is unlawful for any person to place or cause to
6be placed a device that makes a video record or transmits a
7live video with the intent to make a video record or transmit
8live video of another person in that other person's residence
9without that person's consent.
10    (a-25) It is unlawful for any person to, by any means,
11knowingly disseminate, or permit to be disseminated, a video
12record or live video that he or she knows to have been made or
13transmitted in violation of (a), (a-5), (a-6), (a-10), (a-15),
14or (a-20).
15    (b) Exemptions. The following activities shall be exempt
16from the provisions of this Section:
17        (1) The making of a video record or transmission of
18    live video by law enforcement officers pursuant to a
19    criminal investigation, which is otherwise lawful;
20        (2) The making of a video record or transmission of
21    live video by correctional officials for security reasons
22    or for investigation of alleged misconduct involving a
23    person committed to the Department of Corrections; and
24        (3) The making of a video record or transmission of
25    live video in a locker room by a reporter or news medium,
26    as those terms are defined in Section 8-902 of the Code of

 

 

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1    Civil Procedure, where the reporter or news medium has
2    been granted access to the locker room by an appropriate
3    authority for the purpose of conducting interviews.
4    (c) The provisions of this Section do not apply to any
5sound recording or transmission of an oral conversation made
6as the result of the making of a video record or transmission
7of live video, and to which Article 14 of this Code applies.
8    (d) Sentence.
9        (1) A violation of subsection (a-15) or (a-20) (a-10),
10    (a-15), or (a-20) is a Class A misdemeanor.
11        (2) A violation of subsection (a), (a-5), or (a-6), or
12    (a-10) is a Class 4 felony.
13        (3) A violation of subsection (a-25) is a Class 3
14    felony.
15        (4) A violation of subsection (a), (a-5), (a-6),
16    (a-10), (a-15) or (a-20) is a Class 3 felony if the victim
17    is a person under 18 years of age or if the violation is
18    committed by an individual who is required to register as
19    a sex offender under the Sex Offender Registration Act.
20        (5) A violation of subsection (a-25) is a Class 2
21    felony if the victim is a person under 18 years of age or
22    if the violation is committed by an individual who is
23    required to register as a sex offender under the Sex
24    Offender Registration Act.
25    (e) For purposes of this Section:
26        (1) "Residence" includes a rental dwelling, but does

 

 

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1    not include stairwells, corridors, laundry facilities, or
2    additional areas in which the general public has access.
3        (2) "Video record" means and includes any videotape,
4    photograph, film, or other electronic or digital recording
5    of a still or moving visual image; and "live video" means
6    and includes any real-time or contemporaneous electronic
7    or digital transmission of a still or moving visual image.
8(Source: P.A. 96-416, eff. 1-1-10; 97-813, eff. 7-13-12.)