Full Text of HB2219 098th General Assembly
HB2219 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 HB2219 Introduced , by Rep. Dwight Kay SYNOPSIS AS INTRODUCED: |
| 720 ILCS 5/11-20.1 | from Ch. 38, par. 11-20.1 |
| Amends the Criminal Code of 2012. Eliminates the provision that possession by the defendant of more than one of the same film,
videotape or visual reproduction or depiction by computer in which child
pornography is depicted
shall raise a rebuttable presumption that the defendant possessed such
materials with the intent to disseminate them. Provides that possession of more than one of the same film,
videotape or visual reproduction or depiction by computer in which child
pornography is depicted is a Class X felony for which the defendant shall be sentenced to a term of imprisonment of not less than 9 years and not more than 40 years.
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| | | CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY | |
| | A BILL FOR |
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| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Criminal Code of 2012 is amended by changing | 5 | | 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 or any
severely or profoundly intellectually disabled | 14 | | person where such child or severely
or profoundly | 15 | | intellectually disabled person is:
| 16 | | (i) actually or by simulation engaged in any act of | 17 | | sexual
penetration or sexual conduct
with any person or | 18 | | animal; or
| 19 | | (ii) actually or by simulation engaged in any act | 20 | | of sexual
penetration or sexual conduct
involving the | 21 | | sex organs of the child or severely or
profoundly | 22 | | intellectually disabled person and the mouth, anus, or | 23 | | sex organs of
another person or animal; or which |
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| 1 | | involves the mouth, anus or sex organs
of the child or | 2 | | severely or profoundly intellectually disabled
person | 3 | | and the sex organs of another person or animal; or
| 4 | | (iii) actually or by simulation engaged in any act | 5 | | of masturbation; or
| 6 | | (iv) actually or by simulation portrayed as being | 7 | | the object of, or
otherwise engaged in, any act of lewd | 8 | | fondling, touching, or caressing
involving another | 9 | | person or animal; or
| 10 | | (v) actually or by simulation engaged in any act of | 11 | | excretion or
urination within a sexual context; or
| 12 | | (vi) actually or by simulation portrayed or | 13 | | depicted as bound, fettered,
or subject to sadistic, | 14 | | masochistic, or sadomasochistic abuse in any sexual
| 15 | | context; or
| 16 | | (vii) depicted or portrayed in any pose, posture or | 17 | | setting involving
a lewd exhibition of the unclothed or | 18 | | transparently clothed genitals, pubic area, buttocks, | 19 | | or, if
such person is female, a fully or partially | 20 | | developed breast of the child
or other person; or
| 21 | | (2) with the knowledge of the nature or content | 22 | | thereof, reproduces,
disseminates, offers to disseminate, | 23 | | exhibits or possesses with intent to
disseminate any film, | 24 | | videotape, photograph or other similar visual
reproduction | 25 | | or depiction by computer of any child or severely or | 26 | | profoundly
intellectually disabled person whom the person |
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| 1 | | knows or reasonably should know to be
under the age of 18 | 2 | | or to be a severely or profoundly intellectually disabled | 3 | | person,
engaged in any activity described in subparagraphs | 4 | | (i) through (vii) of
paragraph (1) of this subsection; or
| 5 | | (3) with knowledge of the subject matter or theme | 6 | | thereof, produces any
stage play, live performance, film, | 7 | | videotape or other similar visual
portrayal or depiction by | 8 | | computer which
includes a child whom the person knows or | 9 | | reasonably should
know to be under the age of 18 or a | 10 | | severely or
profoundly intellectually disabled person | 11 | | engaged in any activity described in
subparagraphs (i) | 12 | | through (vii) of paragraph (1) of this subsection; or
| 13 | | (4) solicits, uses, persuades, induces, entices, or | 14 | | coerces any child
whom he or she knows or reasonably should | 15 | | know to be under
the age of 18 or a severely or profoundly | 16 | | intellectually disabled person to appear in any stage play, | 17 | | live presentation, film,
videotape, photograph or other | 18 | | similar visual reproduction or depiction
by computer in | 19 | | which the
child or severely or profoundly intellectually | 20 | | disabled person
is or will be depicted, actually or by | 21 | | simulation, in any act, pose or
setting described in | 22 | | subparagraphs (i) through (vii) of paragraph (1) of
this | 23 | | subsection; or
| 24 | | (5) is a parent, step-parent, legal guardian or other | 25 | | person having
care or custody
of a child whom the person | 26 | | knows or reasonably should know to be under
the age of 18 |
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| 1 | | or a severely or profoundly intellectually disabled person | 2 | | and who knowingly permits, induces, promotes, or arranges
| 3 | | for such child or severely or profoundly intellectually | 4 | | disabled
person to appear in any stage play, live | 5 | | performance, film, videotape,
photograph or other similar | 6 | | visual presentation, portrayal or simulation or
depiction | 7 | | by computer of any act or activity described in | 8 | | subparagraphs (i)
through (vii) of paragraph (1) of this | 9 | | subsection; or
| 10 | | (6) with knowledge of the nature or content thereof, | 11 | | possesses any film,
videotape, photograph or other similar | 12 | | visual reproduction or depiction by
computer of any child | 13 | | or severely or profoundly intellectually disabled person
| 14 | | whom the person knows or reasonably should know to be under | 15 | | the age of 18
or to be a severely or profoundly | 16 | | intellectually disabled
person, engaged in any activity | 17 | | described in subparagraphs (i) through
(vii) of paragraph | 18 | | (1) of this subsection; or
| 19 | | (7) solicits, or knowingly uses, persuades, induces, | 20 | | entices, or coerces, a person
to provide a child under the | 21 | | age of 18 or a severely or profoundly intellectually | 22 | | disabled person to appear in any videotape, photograph, | 23 | | film, stage play, live
presentation, or other similar | 24 | | visual reproduction or depiction by computer
in which the | 25 | | child or severely or profoundly intellectually disabled | 26 | | person will be
depicted, actually or by simulation, in any |
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| 1 | | act, pose, or setting described in
subparagraphs (i) | 2 | | through (vii) of paragraph (1) of this subsection.
| 3 | | (b) (1) It shall be an affirmative defense to a charge of | 4 | | child
pornography that the defendant reasonably believed, | 5 | | under all of the
circumstances, that the child was 18 years | 6 | | of age or older or that the
person was not a severely or | 7 | | profoundly intellectually disabled person but only where, | 8 | | prior to the act or acts giving rise to a
prosecution under | 9 | | this Section, he or she took some affirmative action or | 10 | | made a
bonafide inquiry designed to ascertain whether the | 11 | | child was 18 years of
age or older or that the person was | 12 | | not a severely or
profoundly intellectually disabled | 13 | | person and his or her reliance upon the information
so | 14 | | obtained was clearly reasonable.
| 15 | | (1.5) Telecommunications carriers, commercial mobile | 16 | | service providers, and providers of information services, | 17 | | including, but not limited to, Internet service providers | 18 | | and hosting service providers, are not liable under this | 19 | | Section by virtue of the transmission, storage, or caching | 20 | | of electronic communications or messages of others or by | 21 | | virtue of the provision of other related | 22 | | telecommunications, commercial mobile services, or | 23 | | information services used by others in violation of this | 24 | | Section.
| 25 | | (2) (Blank).
| 26 | | (3) The charge of child pornography shall not apply to |
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| 1 | | the performance
of official duties by law enforcement or | 2 | | prosecuting officers or persons employed by law | 3 | | enforcement or prosecuting agencies, court personnel
or | 4 | | attorneys, nor to bonafide treatment or professional | 5 | | education programs
conducted by licensed physicians, | 6 | | psychologists or social workers.
| 7 | | (4) (Blank). If the defendant possessed more than one | 8 | | of the same film,
videotape or visual reproduction or | 9 | | depiction by computer in which child
pornography is | 10 | | depicted, then the trier of fact may infer
that the | 11 | | defendant possessed such
materials with the intent to | 12 | | disseminate them.
| 13 | | (5) The charge of child pornography does not apply to a | 14 | | person who does
not voluntarily possess a film, videotape, | 15 | | or visual reproduction or depiction
by computer in which | 16 | | child pornography is depicted. Possession is voluntary if
| 17 | | the defendant knowingly procures or receives a film, | 18 | | videotape, or visual
reproduction or depiction for a | 19 | | sufficient time to be able to terminate his
or her | 20 | | possession.
| 21 | | (6) Any violation of paragraph (1), (2), (3), (4), (5), | 22 | | or (7) of subsection (a) that includes a child engaged in, | 23 | | solicited for, depicted in, or posed in any act of sexual | 24 | | penetration or bound, fettered, or subject to sadistic, | 25 | | masochistic, or sadomasochistic abuse in a sexual context | 26 | | shall be deemed a crime of violence. |
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| 1 | | (c) If the violation does not involve a film, videotape, or | 2 | | other moving depiction, a violation of paragraph (1), (4), (5), | 3 | | or (7) of subsection (a) is a
Class 1 felony with a mandatory | 4 | | minimum fine of $2,000 and a maximum fine of
$100,000. If the | 5 | | violation involves a film, videotape, or other moving | 6 | | depiction, a violation of paragraph (1), (4), (5), or (7) of | 7 | | subsection (a) is a
Class X felony with a mandatory minimum | 8 | | fine of $2,000 and a maximum fine of
$100,000. If the violation | 9 | | does not involve a film, videotape, or other moving depiction, | 10 | | a violation of paragraph (3) of subsection (a) is a Class 1 | 11 | | felony
with a mandatory minimum fine of $1500 and a maximum | 12 | | fine of $100,000. If the violation involves a film, videotape, | 13 | | or other moving depiction, a violation of paragraph (3) of | 14 | | subsection (a) is a Class X felony
with a mandatory minimum | 15 | | fine of $1500 and a maximum fine of $100,000.
If the violation | 16 | | does not involve a film, videotape, or other moving depiction, | 17 | | a violation
of paragraph (2) of subsection (a) is a Class 1 | 18 | | felony with a
mandatory minimum fine of $1000 and a maximum | 19 | | fine of $100,000. If the violation involves a film, videotape, | 20 | | or other moving depiction, a violation of paragraph (2) of | 21 | | subsection (a) is a Class X felony with a
mandatory minimum | 22 | | fine of $1000 and a maximum fine of $100,000. If the violation | 23 | | does not involve a film, videotape, or other moving depiction, | 24 | | a violation of
paragraph (6) of subsection (a) is a Class 3 | 25 | | felony with a mandatory
minimum fine of $1000 and a maximum | 26 | | fine of $100,000. If the violation involves a film, videotape, |
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| 1 | | or other moving depiction, a violation of
paragraph (6) of | 2 | | subsection (a) is a Class 2 felony with a mandatory
minimum | 3 | | fine of $1000 and a maximum fine of $100,000. Violation of
| 4 | | paragraph (6) of subsection (a) is a Class X felony for which | 5 | | the defendant shall be sentenced to a term of imprisonment of | 6 | | not less than 9 years and not more than 40 years if the | 7 | | defendant possessed more than one of the same film,
videotape | 8 | | or visual reproduction or depiction by computer in which child
| 9 | | pornography is depicted.
| 10 | | (c-5) Where the child depicted is under the age of 13, a | 11 | | violation of paragraph (1), (2), (3), (4), (5), or (7) of | 12 | | subsection (a) is a Class X felony with a mandatory minimum | 13 | | fine of $2,000 and a maximum fine of $100,000. Where the child | 14 | | depicted is under the age of 13, a violation of paragraph (6) | 15 | | of subsection (a) is a Class 2 felony with a mandatory minimum | 16 | | fine of $1,000 and a maximum fine of $100,000. Where the child | 17 | | depicted is under the age of 13, a person who commits a | 18 | | violation of paragraph (1), (2), (3), (4), (5), or (7) of | 19 | | subsection (a) where the defendant has previously been | 20 | | convicted under the laws of this State or any other state of | 21 | | the offense of child pornography, aggravated child | 22 | | pornography, aggravated criminal sexual abuse, aggravated | 23 | | criminal sexual assault, predatory criminal sexual assault of a | 24 | | child, or any of the offenses formerly known as rape, deviate | 25 | | sexual assault, indecent liberties with a child, or aggravated | 26 | | indecent liberties with a child where the victim was under the |
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| 1 | | age of 18 years or an offense that is substantially equivalent | 2 | | to those offenses, is guilty of a Class X felony for which the | 3 | | person shall be sentenced to a term of imprisonment of not less | 4 | | than 9 years with a mandatory minimum fine of $2,000 and a | 5 | | maximum fine of $100,000.
Where the child depicted is under the | 6 | | age of 13, a person who commits a violation of paragraph (6) of | 7 | | subsection (a) where the defendant has previously been | 8 | | convicted under the laws of this State or any other state of | 9 | | the offense of child pornography, aggravated child | 10 | | pornography, aggravated criminal sexual abuse, aggravated | 11 | | criminal sexual assault, predatory criminal sexual assault of a | 12 | | child, or any of the offenses formerly known as rape, deviate | 13 | | sexual assault, indecent liberties with a child, or aggravated | 14 | | indecent liberties with a child where the victim was under the | 15 | | age of 18 years or an offense that is substantially equivalent | 16 | | to those offenses, is guilty of a Class 1 felony with a | 17 | | mandatory minimum fine of $1,000 and a maximum fine of | 18 | | $100,000. The issue of whether the child depicted is under the | 19 | | age of 13 is an element of the offense to be resolved by the | 20 | | trier of fact. | 21 | | (d) If a person is convicted of a second or subsequent | 22 | | violation of
this Section within 10 years of a prior | 23 | | conviction, the court shall order a
presentence psychiatric | 24 | | examination of the person. The examiner shall report
to the | 25 | | court whether treatment of the person is necessary.
| 26 | | (e) Any film, videotape, photograph or other similar visual |
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| 1 | | reproduction
or depiction by computer which includes a child | 2 | | under the age of 18 or a
severely or profoundly intellectually | 3 | | disabled person engaged in any activity
described in | 4 | | subparagraphs (i) through (vii) or paragraph 1 of subsection
| 5 | | (a), and any material or equipment used or intended for use in | 6 | | photographing,
filming, printing, producing, reproducing, | 7 | | manufacturing, projecting,
exhibiting, depiction by computer, | 8 | | or disseminating such material shall be
seized and forfeited in | 9 | | the manner, method and procedure provided by Section
36-1 of | 10 | | this Code for the seizure and forfeiture of vessels, vehicles | 11 | | and
aircraft.
| 12 | | In addition, any person convicted under this Section is | 13 | | subject to the property forfeiture provisions set forth in | 14 | | Article 124B of the Code of Criminal Procedure of 1963. | 15 | | (e-5) Upon the conclusion of a case brought under this | 16 | | Section, the court
shall seal all evidence depicting a victim | 17 | | or witness that is sexually
explicit. The evidence may be | 18 | | unsealed and viewed, on a motion of the party
seeking to unseal | 19 | | and view the evidence, only for good cause shown and in the
| 20 | | discretion of the court. The motion must expressly set forth | 21 | | the purpose for
viewing the material. The State's attorney and | 22 | | the victim, if possible, shall
be provided reasonable notice of | 23 | | the hearing on the motion to unseal the
evidence. Any person | 24 | | entitled to notice of a hearing under this subsection
(e-5) may | 25 | | object to the motion.
| 26 | | (f) Definitions. For the purposes of this Section:
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| 1 | | (1) "Disseminate" means (i) to sell, distribute, | 2 | | exchange or transfer
possession, whether with or without | 3 | | consideration or (ii) to make a depiction
by computer | 4 | | available for distribution or downloading through the | 5 | | facilities
of any telecommunications network or through | 6 | | any other means of transferring
computer programs or data | 7 | | to a computer.
| 8 | | (2) "Produce" means to direct, promote, advertise, | 9 | | publish, manufacture,
issue, present or show.
| 10 | | (3) "Reproduce" means to make a duplication or copy.
| 11 | | (4) "Depict by computer" means to generate or create, | 12 | | or cause to be
created or generated, a computer program or | 13 | | data that, after being processed by
a computer either alone | 14 | | or in conjunction with one or more computer programs,
| 15 | | results in a visual depiction on a computer monitor, | 16 | | screen, or display.
| 17 | | (5) "Depiction by computer" means a computer program or | 18 | | data that, after
being processed by a computer either alone | 19 | | or in conjunction with one or more
computer programs, | 20 | | results in a visual depiction on a computer monitor, | 21 | | screen,
or display.
| 22 | | (6) "Computer", "computer program", and "data" have | 23 | | the meanings
ascribed to them in Section 16D-2 of this | 24 | | Code.
| 25 | | (7) For the purposes of this Section, "child | 26 | | pornography" includes a film, videotape, photograph, or |
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| 1 | | other similar
visual medium or reproduction or depiction by | 2 | | computer that is, or appears to
be, that of a person, | 3 | | either in part, or in total, under the age of 18 or a | 4 | | severely or profoundly intellectually disabled person,
| 5 | | regardless of the method by which the film, videotape, | 6 | | photograph, or other
similar visual medium or reproduction | 7 | | or depiction by computer is created,
adopted, or modified | 8 | | to appear as such. "Child pornography" also includes a | 9 | | film,
videotape, photograph, or other similar visual | 10 | | medium or reproduction or
depiction by computer that is | 11 | | advertised, promoted, presented, described, or
distributed | 12 | | in such a manner that conveys the impression that the film,
| 13 | | videotape, photograph, or other similar visual medium or | 14 | | reproduction or
depiction by computer is of a person under | 15 | | the age of 18 or a severely or profoundly intellectually | 16 | | disabled person.
| 17 | | (g) Re-enactment; findings; purposes.
| 18 | | (1) The General Assembly finds and declares that:
| 19 | | (i) Section 50-5 of Public Act 88-680, effective | 20 | | January 1, 1995,
contained provisions amending the | 21 | | child pornography statute, Section 11-20.1
of the | 22 | | Criminal Code of 1961. Section 50-5 also contained | 23 | | other provisions.
| 24 | | (ii) In addition, Public Act 88-680 was entitled | 25 | | "AN ACT to create a
Safe Neighborhoods Law". (A) | 26 | | Article 5 was entitled JUVENILE JUSTICE and
amended the |
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| 1 | | Juvenile Court Act of 1987. (B) Article 15 was entitled | 2 | | GANGS and
amended various provisions of the Criminal | 3 | | Code of 1961 and the Unified Code
of Corrections. (C) | 4 | | Article 20 was entitled ALCOHOL ABUSE and amended | 5 | | various
provisions of the Illinois Vehicle Code. (D) | 6 | | Article 25 was entitled DRUG
ABUSE and amended the | 7 | | Cannabis Control Act and the Illinois Controlled
| 8 | | Substances Act. (E) Article 30 was entitled FIREARMS | 9 | | and amended the Criminal
Code of 1961 and the Code of | 10 | | Criminal Procedure of 1963. (F) Article 35
amended the | 11 | | Criminal Code of 1961, the Rights of Crime Victims and | 12 | | Witnesses
Act, and the Unified Code of Corrections. (G) | 13 | | Article 40 amended the Criminal
Code of 1961 to | 14 | | increase the penalty for compelling organization | 15 | | membership of
persons. (H) Article 45 created the | 16 | | Secure Residential Youth Care Facility
Licensing Act | 17 | | and amended the State Finance Act, the Juvenile Court | 18 | | Act of
1987, the Unified Code of Corrections, and the | 19 | | Private Correctional Facility
Moratorium Act. (I) | 20 | | Article 50 amended the WIC Vendor Management Act, the
| 21 | | Firearm Owners Identification Card Act, the Juvenile | 22 | | Court Act of 1987, the
Criminal Code of 1961, the | 23 | | Wrongs to Children Act, and the Unified Code of
| 24 | | Corrections.
| 25 | | (iii) On September 22, 1998, the Third District | 26 | | Appellate Court in
People v. Dainty, 701 N.E. 2d 118, |
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| 1 | | ruled that Public Act 88-680 violates the
single | 2 | | subject clause of the Illinois Constitution (Article | 3 | | IV, Section 8 (d))
and was unconstitutional in its | 4 | | entirety. As of the time this amendatory Act
of 1999 | 5 | | was prepared, People v. Dainty was still subject to | 6 | | appeal.
| 7 | | (iv) Child pornography is a vital concern to the | 8 | | people of this State
and the validity of future | 9 | | prosecutions under the child pornography statute of
| 10 | | the Criminal Code of 1961 is in grave doubt.
| 11 | | (2) It is the purpose of this amendatory Act of 1999 to | 12 | | prevent or
minimize any problems relating to prosecutions | 13 | | for child pornography that may
result from challenges to | 14 | | the constitutional validity of Public Act 88-680 by
| 15 | | re-enacting the Section relating to child pornography that | 16 | | was included in
Public Act 88-680.
| 17 | | (3) This amendatory Act of 1999 re-enacts Section | 18 | | 11-20.1 of the
Criminal Code of 1961, as it has been | 19 | | amended. This re-enactment is intended
to remove any | 20 | | question as to the validity or content of that Section; it | 21 | | is not
intended to supersede any other Public Act that | 22 | | amends the text of the Section
as set forth in this | 23 | | amendatory Act of 1999. The material is shown as existing
| 24 | | text (i.e., without underscoring) because, as of the time | 25 | | this amendatory Act
of 1999 was prepared, People v. Dainty | 26 | | was subject to appeal to the Illinois
Supreme Court.
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| 1 | | (4) The re-enactment by this amendatory Act of 1999 of | 2 | | Section 11-20.1 of
the Criminal Code of 1961 relating to | 3 | | child pornography that was amended by
Public Act 88-680 is | 4 | | not intended, and shall not be construed, to imply that
| 5 | | Public Act 88-680 is invalid or to limit or impair any | 6 | | legal argument
concerning whether those provisions were | 7 | | substantially re-enacted by other
Public Acts.
| 8 | | (Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10; | 9 | | 96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-157, eff. | 10 | | 1-1-12; 97-227, eff. 1-1-12; 97-995, eff. 1-1-13; 97-1109, eff. | 11 | | 1-1-13.)
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