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90_HB0245
720 ILCS 5/11-20 from Ch. 38, par. 11-20
Amends the Criminal Code of 1961. Provides that the
contemporary adult community standard to be applied in
determining whether material is obscene is the contemporary
adult community standard of the county in which the material
is sold, delivered, or advertised or in which it is
performed. Effective immediately.
LRB9001274RCks
LRB9001274RCks
1 AN ACT to amend the Criminal Code of 1961 by changing
2 Section 11-20.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Criminal Code of 1961 is amended by
6 changing Section 11-20 as follows:
7 (720 ILCS 5/11-20) (from Ch. 38, par. 11-20)
8 Sec. 11-20. Obscenity.
9 (a) Elements of the Offense. A person commits obscenity
10 when, with knowledge of the nature or content thereof, or
11 recklessly failing to exercise reasonable inspection which
12 would have disclosed the nature or content thereof, he:
13 (1) Sells, delivers or provides, or offers or
14 agrees to sell, deliver or provide any obscene writing,
15 picture, record or other representation or embodiment of
16 the obscene; or
17 (2) Presents or directs an obscene play, dance or
18 other performance or participates directly in that
19 portion thereof which makes it obscene; or
20 (3) Publishes, exhibits or otherwise makes
21 available anything obscene; or
22 (4) Performs an obscene act or otherwise presents
23 an obscene exhibition of his body for gain; or
24 (5) Creates, buys, procures or possesses obscene
25 matter or material with intent to disseminate it in
26 violation of this Section, or of the penal laws or
27 regulations of any other jurisdiction; or
28 (6) Advertises or otherwise promotes the sale of
29 material represented or held out by him to be obscene,
30 whether or not it is obscene.
31 (b) Obscene Defined.
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1 Any material or performance is obscene if: (1) the
2 average person, applying contemporary adult community
3 standards in the county in which the material is sold,
4 delivered, or advertised or in which the performance occurs,
5 would find that, taken as a whole, it appeals to the prurient
6 interest; and (2) the average person, applying contemporary
7 adult community standards in the county in which the material
8 is sold, delivered, or advertised or in which the performance
9 occurs, would find that it depicts or describes, in a
10 patently offensive way, ultimate sexual acts or
11 sadomasochistic sexual acts, whether normal or perverted,
12 actual or simulated, or masturbation, excretory functions or
13 lewd exhibition of the genitals; and (3) taken as a whole, it
14 lacks serious literary, artistic, political or scientific
15 value.
16 (c) Interpretation of Evidence.
17 Obscenity shall be judged with reference to ordinary
18 adults, except that it shall be judged with reference to
19 children or other specially susceptible audiences if it
20 appears from the character of the material or the
21 circumstances of its dissemination to be specially designed
22 for or directed to such an audience.
23 Where circumstances of production, presentation, sale,
24 dissemination, distribution, or publicity indicate that
25 material is being commercially exploited for the sake of its
26 prurient appeal, such evidence is probative with respect to
27 the nature of the matter and can justify the conclusion that
28 the matter is lacking in serious literary, artistic,
29 political or scientific value.
30 In any prosecution for an offense under this Section
31 evidence shall be admissible to show:
32 (1) The character of the audience for which the
33 material was designed or to which it was directed;
34 (2) What the predominant appeal of the material
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1 would be for ordinary adults or a special audience, and
2 what effect, if any, it would probably have on the
3 behavior of such people;
4 (3) The artistic, literary, scientific, educational
5 or other merits of the material, or absence thereof;
6 (4) The degree, if any, of public acceptance of the
7 material in the county of this State in which the
8 material is sold, delivered, advertised, or performed;
9 (5) Appeal to prurient interest, or absence
10 thereof, in advertising or other promotion of the
11 material;
12 (6) Purpose of the author, creator, publisher or
13 disseminator.
14 (d) Sentence.
15 Obscenity is a Class A misdemeanor. A second or
16 subsequent offense is a Class 4 felony.
17 (e) Prima Facie Evidence.
18 The creation, purchase, procurement or possession of a
19 mold, engraved plate or other embodiment of obscenity
20 specially adapted for reproducing multiple copies, or the
21 possession of more than 3 copies of obscene material shall be
22 prima facie evidence of an intent to disseminate.
23 (f) Affirmative Defenses.
24 It shall be an affirmative defense to obscenity that the
25 dissemination:
26 (1) Was not for gain and was made to personal
27 associates other than children under 18 years of age;
28 (2) Was to institutions or individuals having
29 scientific or other special justification for possession
30 of such material.
31 (g) Forfeiture of property:
32 (1) Legislative Declaration. Obscenity is a
33 far-reaching and extremely profitable crime. This crime
34 persists despite the threat of prosecution and successful
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1 prosecution because existing sanctions do not effectively
2 reach the money and other assets generated by it. It is
3 therefore necessary to supplement existing sanctions by
4 mandating forfeiture of money and other assets generated
5 by this crime. Forfeiture diminishes the financial
6 incentives which encourage and sustain obscenity and
7 secures for the State, local government and prosecutors a
8 resource for prosecuting these crimes.
9 (2) Definitions.
10 (i) "Person" means an individual, partnership,
11 private corporation, public, municipal, governmental
12 or quasi-municipal corporation, unincorporated
13 association, trustee or receiver.
14 (ii) "Property" means:
15 (a) real estate, including things growing
16 on, affixed to and found in land, and any kind
17 of interest therein; and
18 (b) tangible and intangible personal
19 property, including rights, privileges,
20 interests, claims and securities.
21 (3) Forfeiture of Property. Any person who has
22 been convicted previously of the offense of obscenity and
23 who shall be convicted of a second or subsequent offense
24 of obscenity shall forfeit to the State of Illinois:
25 (i) Any property constituting or derived from
26 any proceeds such person obtained, directly or
27 indirectly, as a result of such offense; and
28 (ii) Any of the person's property used in any
29 manner, wholly or in part, to commit such offense.
30 (4) Forfeiture Hearing. At any time following a
31 second or subsequent conviction for obscenity, the court
32 shall, upon petition by the Attorney General or the
33 State's Attorney, conduct a hearing to determine whether
34 there is any property that is subject to forfeiture as
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1 provided hereunder. At the forfeiture hearing the People
2 shall have the burden of establishing by preponderance of
3 the evidence that such property is subject to forfeiture.
4 (5) Prior Restraint.
5 Nothing in this subsection shall be construed as
6 authorizing the prior restraint of any showing,
7 performance or exhibition of allegedly obscene films,
8 plays or other presentations or of any sale or
9 distribution of allegedly obscene materials.
10 (6) Seizure, Sale and Distribution of the Property.
11 (i) Upon a determination under subparagraph
12 (4) that there is property subject to forfeiture,
13 the court shall authorize the Attorney General or
14 the State's Attorney, except as provided in this
15 Section, to seize all property declared forfeited
16 upon terms and conditions as the court shall deem
17 proper.
18 (ii) The Attorney General or State's Attorney
19 is authorized to sell all property forfeited and
20 seized pursuant to this Article, and, after the
21 deduction of all requisite expenses of
22 administration and sale, shall distribute the
23 proceeds of such sale, along with any moneys
24 forfeited or seized, in accordance with subparagraph
25 (iii) hereof. If the Attorney General or State's
26 Attorney believes any such property describes,
27 depicts or portrays any of the acts or activities
28 described in subsection (b) of this Section, he
29 shall apply to the court for an order to destroy
30 such property, and if the court determines the
31 property describes, depicts or portrays such acts it
32 shall order the Attorney General or State's Attorney
33 to destroy such property.
34 (iii) All monies and the sale proceeds of all
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1 other property forfeited and seized pursuant hereto
2 shall be distributed as follows:
3 (a) Fifty percent shall be distributed to
4 the unit of local government whose officers or
5 employees conducted the investigation into and
6 caused the arrest or arrests and prosecution
7 leading to the forfeiture, or, if the
8 investigations, arrest or arrests and
9 prosecution leading to the forfeiture were
10 undertaken by the sheriff, this portion shall
11 be distributed to the county for deposit in a
12 special fund in the county treasury
13 appropriated to the sheriff. Amounts
14 distributed to the county for the sheriff or to
15 the units of local government hereunder shall
16 be used for enforcement of laws or ordinances
17 governing obscenity and child pornography. In
18 the event, however, that the investigation,
19 arrest or arrests and prosecution leading to
20 the forfeiture were undertaken solely by a
21 State agency, the portion provided hereunder
22 shall be paid into the State treasury to be
23 used for enforcement of laws governing
24 obscenity and child pornography.
25 (b) Twenty-five percent shall be
26 distributed to the county in which the
27 prosecution resulting in the forfeiture was
28 instituted, deposited in a special fund in the
29 county treasury and appropriated to the State's
30 Attorney for use in the enforcement of laws
31 governing obscenity and child pornography.
32 (c) Twenty-five percent shall be
33 distributed to the Office of the State's
34 Attorneys Appellate Prosecutor and deposited in
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1 the Obscenity Profits Forfeiture Fund, which is
2 hereby created in the State Treasury, to be
3 used by the Office of the State's Attorneys
4 Appellate Prosecutor for additional expenses
5 incurred in prosecuting appeals arising under
6 Sections 11-20 and 11-20.1 of the Criminal Code
7 of 1961. Any amounts remaining in the Fund
8 after all additional expenses have been paid
9 shall be used by the Office to reduce the
10 participating county contributions to the
11 Office on a pro-rated basis as determined by
12 the board of governors of the Office of the
13 State's Attorneys Appellate Prosecutor based on
14 the populations of the participating counties.
15 (7) Construction of subsection (g).
16 It shall be the intent of the General Assembly that this
17 subsection be liberally construed so as to effect its
18 purposes. The forfeiture of property and other remedies
19 hereunder shall be considered to be in addition, and not
20 exclusive of any sentence or other remedy provided by law.
21 Subsection (g) of this Section shall not apply to any
22 property of a public library or any property of a library
23 operated by an institution accredited by a generally
24 recognized accrediting agency.
25 (Source: P.A. 85-1014.)
26 Section 99. Effective date. This Act takes effect upon
27 becoming law.