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90_HB2559
720 ILCS 5/11-20.1 from Ch. 38, par. 11-20.1
Amends the Criminal Code of 1961. Provides that
solicitation by way of computer of a child known or
reasonably known to be under 18 or of an institutionalized
severely or profoundly mentally retarded person to appear in
a depiction by computer in certain sexual acts constitutes
child pornography.
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1 AN ACT to amend the Criminal Code of 1961 by changing
2 Section 11-20.1.
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 11-20.1 as follows:
7 (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
8 Sec. 11-20.1. Child pornography.
9 (a) A person commits the offense of child pornography
10 who:
11 (1) films, videotapes, photographs, or otherwise
12 depicts or portrays by means of any similar visual medium
13 or reproduction or depicts by computer any child whom he
14 knows or reasonably should know to be under the age of 18
15 or any institutionalized severely or profoundly mentally
16 retarded person where such child or institutionalized
17 severely or profoundly mentally retarded person is:
18 (i) actually or by simulation engaged in any
19 act of sexual intercourse with any person or animal;
20 or
21 (ii) actually or by simulation engaged in any
22 act of sexual contact involving the sex organs of
23 the child or institutionalized severely or
24 profoundly mentally retarded person and the mouth,
25 anus, or sex organs of another person or animal; or
26 which involves the mouth, anus or sex organs of the
27 child or institutionalized severely or profoundly
28 mentally retarded person and the sex organs of
29 another person or animal; or
30 (iii) actually or by simulation engaged in any
31 act of masturbation; or
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1 (iv) actually or by simulation portrayed as
2 being the object of, or otherwise engaged in, any
3 act of lewd fondling, touching, or caressing
4 involving another person or animal; or
5 (v) actually or by simulation engaged in any
6 act of excretion or urination within a sexual
7 context; or
8 (vi) actually or by simulation portrayed or
9 depicted as bound, fettered, or subject to sadistic,
10 masochistic, or sadomasochistic abuse in any sexual
11 context; or
12 (vii) depicted or portrayed in any pose,
13 posture or setting involving a lewd exhibition of
14 the unclothed genitals, pubic area, buttocks, or, if
15 such person is female, a fully or partially
16 developed breast of the child or other person; or
17 (2) with the knowledge of the nature or content
18 thereof, reproduces, disseminates, offers to disseminate,
19 exhibits or possesses with intent to disseminate any
20 film, videotape, photograph or other similar visual
21 reproduction or depiction by computer of any child or
22 institutionalized severely or profoundly mentally
23 retarded person whom the person knows or reasonably
24 should know to be under the age of 18 or to be an
25 institutionalized severely or profoundly mentally
26 retarded person, engaged in any activity described in
27 subparagraphs (i) through (vii) of paragraph (1) of this
28 subsection; or
29 (3) with knowledge of the subject matter or theme
30 thereof, produces any stage play, live performance, film,
31 videotape or other similar visual portrayal or depiction
32 by computer which includes a child whom the person knows
33 or reasonably should know to be under the age of 18 or an
34 institutionalized severely or profoundly mentally
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1 retarded person engaged in any activity described in
2 subparagraphs (i) through (vii) of paragraph (1) of this
3 subsection; or
4 (4) solicits, uses, persuades, induces, entices, or
5 coerces, including solicitation by way of computer, any
6 child whom he knows or reasonably should know to be under
7 the age of 18 or an institutionalized severely or
8 profoundly mentally retarded person to appear in any
9 stage play, live presentation, film, videotape,
10 photograph or other similar visual reproduction or
11 depiction by computer in which the child or
12 institutionalized severely or profoundly mentally
13 retarded person is or will be depicted, actually or by
14 simulation, in any act, pose or setting described in
15 subparagraphs (i) through (vii) of paragraph (1) of this
16 subsection; or
17 (5) is a parent, step-parent, legal guardian or
18 other person having care or custody of a child whom the
19 person knows or reasonably should know to be under the
20 age of 18 or an institutionalized severely or profoundly
21 mentally retarded person and who knowingly permits,
22 induces, promotes, or arranges for such child or
23 institutionalized severely or profoundly mentally
24 retarded person to appear in any stage play, live
25 performance, film, videotape, photograph or other similar
26 visual presentation, portrayal or simulation or depiction
27 by computer of any act or activity described in
28 subparagraphs (i) through (vii) of paragraph (1) of this
29 subsection; or
30 (6) with knowledge of the nature or content
31 thereof, possesses any film, videotape, photograph or
32 other similar visual reproduction or depiction by
33 computer of any child or institutionalized severely or
34 profoundly mentally retarded person whom the person knows
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1 or reasonably should know to be under the age of 18 or to
2 be an institutionalized severely or profoundly mentally
3 retarded person, engaged in any activity described in
4 subparagraphs (i) through (vii) of paragraph (1) of this
5 subsection; or
6 (7) solicits, uses, persuades, induces, entices, or
7 coerces, including solicitation by way of computer, a
8 person to provide a child under the age of 18 or an
9 institutionalized severely or profoundly mentally
10 retarded person to appear in any videotape, photograph,
11 film, stage play, live presentation, or other similar
12 visual reproduction or depiction by computer in which the
13 child or an institutionalized severely or profoundly
14 mentally retarded person will be depicted, actually or by
15 simulation, in any act, pose, or setting described in
16 subparagraphs (i) through (vii) of paragraph (1) of this
17 subsection.
18 (b) (1) It shall be an affirmative defense to a charge
19 of child pornography that the defendant reasonably believed,
20 under all of the circumstances, that the child was 18 years
21 of age or older or that the person was not an
22 institutionalized severely or profoundly mentally retarded
23 person but only where, prior to the act or acts giving rise
24 to a prosecution under this Section, he took some affirmative
25 action or made a bonafide inquiry designed to ascertain
26 whether the child was 18 years of age or older or that the
27 person was not an institutionalized severely or profoundly
28 mentally retarded person and his reliance upon the
29 information so obtained was clearly reasonable.
30 (2) It shall be an affirmative defense to a charge of
31 child pornography that the defendant was employed by a public
32 library or any library operated by an institution accredited
33 by a generally recognized accrediting agency, at the time the
34 act leading to the charge of child pornography took place and
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1 such act was committed during the course of employment.
2 (3) The charge of child pornography shall not apply to
3 the performance of official duties by law enforcement or
4 prosecuting officers, court personnel or attorneys, nor to
5 bonafide treatment or professional education programs
6 conducted by licensed physicians, psychologists or social
7 workers.
8 (4) Possession by the defendant of more than one of the
9 same film, videotape or visual reproduction or depiction by
10 computer in which child pornography is depicted shall raise a
11 rebuttable presumption that the defendant possessed such
12 materials with the intent to disseminate them.
13 (c) Violation of paragraph (1), (4), (5), or (7) of
14 subsection (a) is a Class 1 felony with a mandatory minimum
15 fine of $2,000 and a maximum fine of $100,000. Violation of
16 paragraph (3) of subsection (a) is a Class 1 felony with a
17 mandatory minimum fine of $1500 and a maximum fine of
18 $100,000. Violation of paragraph (2) of subsection (a) is a
19 Class 1 felony with a mandatory minimum fine of $1000 and a
20 maximum fine of $100,000. Violation of paragraph (6) of
21 subsection (a) is a Class 3 felony with a mandatory minimum
22 fine of $1000 and a maximum fine of $100,000.
23 (d) If a person is convicted of a second or subsequent
24 violation of this Section within 10 years of a prior
25 conviction, the court shall order a presentence psychiatric
26 examination of the person. The examiner shall report to the
27 court whether treatment of the person is necessary.
28 (e) Any film, videotape, photograph or other similar
29 visual reproduction or depiction by computer which includes a
30 child under the age of 18 or an institutionalized severely or
31 profoundly mentally retarded person engaged in any activity
32 described in subparagraphs (i) through (vii) or paragraph 1
33 of subsection (a), and any material or equipment used or
34 intended for use in photographing, filming, printing,
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1 producing, reproducing, manufacturing, projecting,
2 exhibiting, depiction by computer, or disseminating such
3 material shall be seized and forfeited in the manner, method
4 and procedure provided by Section 36-1 of this Code for the
5 seizure and forfeiture of vessels, vehicles and aircraft.
6 (f) Definitions. For the purposes of this Section:
7 (1) "Disseminate" means (i) to sell, distribute,
8 exchange or transfer possession, whether with or without
9 consideration or (ii) to make a depiction by computer
10 available for distribution or downloading through the
11 facilities of any telecommunications network or through
12 any other means of transferring computer programs or data
13 to a computer;
14 (2) "Produce" means to direct, promote, advertise,
15 publish, manufacture, issue, present or show;
16 (3) "Reproduce" means to make a duplication or
17 copy;
18 (4) "Depict by computer" means to generate or
19 create, or cause to be created or generated, a computer
20 program or data that, after being processed by a computer
21 either alone or in conjunction with one or more computer
22 programs, results in a visual depiction on a computer
23 monitor, screen, or display.
24 (5) "Depiction by computer" means a computer
25 program or data that, after being processed by a computer
26 either alone or in conjunction with one or more computer
27 programs, results in a visual depiction on a computer
28 monitor, screen, or display.
29 (6) "Computer", "computer program", and "data" have
30 the meanings ascribed to them in Section 16D-2 of this
31 Code.
32 (Source: P.A. 90-68, eff. 7-8-97.)