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90_SB0009ham003
LRB9000805RCksam06
1 AMENDMENT TO SENATE BILL 9
2 AMENDMENT NO. . Amend Senate Bill 9, on page 1, line
3 1, by inserting "obscenity and" after "to"; and
4 on page 1, line 6, by changing "Section 12-7.1" to "Sections
5 11-20 and 12-7.1"; and
6 on page 1, by inserting between lines 6 and 7 the following:
7 "(720 ILCS 5/11-20) (from Ch. 38, par. 11-20)
8 Sec. 11-20. Obscenity. (a) Elements of the Offense. A
9 person commits obscenity when, with knowledge of the nature
10 or content thereof, or recklessly failing to exercise
11 reasonable inspection which would have disclosed the nature
12 or content thereof, he:
13 (1) Sells, delivers or provides, or offers or agrees to
14 sell, deliver or provide any obscene writing, picture, record
15 or other representation or embodiment of the obscene; or
16 (2) Presents or directs an obscene play, dance or other
17 performance or participates directly in that portion thereof
18 which makes it obscene; or
19 (3) Publishes, exhibits or otherwise makes available
20 anything obscene; or
21 (4) Performs an obscene act or otherwise presents an
22 obscene exhibition of his body for gain; or
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1 (5) Creates, buys, procures or possesses obscene matter
2 or material with intent to disseminate it in violation of
3 this Section, or of the penal laws or regulations of any
4 other jurisdiction; or
5 (6) Advertises or otherwise promotes the sale of
6 material represented or held out by him to be obscene,
7 whether or not it is obscene.
8 (b) Obscene Defined.
9 Any material or performance is obscene if: (1) the
10 average person, applying contemporary adult community
11 standards, would find that, taken as a whole, it appeals to
12 the prurient interest; and (2) the average person, applying
13 contemporary adult community standards, would find that it
14 depicts or describes, in a patently offensive way, ultimate
15 sexual acts or sadomasochistic sexual acts, whether normal or
16 perverted, actual or simulated, or masturbation, excretory
17 functions, or lewd exhibition of the genitals, or bestiality;
18 and (3) taken as a whole, it lacks serious literary,
19 artistic, political or scientific value.
20 (c) Interpretation of Evidence.
21 Obscenity shall be judged with reference to ordinary
22 adults, except that it shall be judged with reference to
23 children or other specially susceptible audiences if it
24 appears from the character of the material or the
25 circumstances of its dissemination to be specially designed
26 for or directed to such an audience.
27 Where circumstances of production, presentation, sale,
28 dissemination, distribution, or publicity indicate that
29 material is being commercially exploited for the sake of its
30 prurient appeal, such evidence is probative with respect to
31 the nature of the matter and can justify the conclusion that
32 the matter is lacking in serious literary, artistic,
33 political or scientific value.
34 In any prosecution for an offense under this Section
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1 evidence shall be admissible to show:
2 (1) The character of the audience for which the material
3 was designed or to which it was directed;
4 (2) What the predominant appeal of the material would be
5 for ordinary adults or a special audience, and what effect,
6 if any, it would probably have on the behavior of such
7 people;
8 (3) The artistic, literary, scientific, educational or
9 other merits of the material, or absence thereof;
10 (4) The degree, if any, of public acceptance of the
11 material in this State;
12 (5) Appeal to prurient interest, or absence thereof, in
13 advertising or other promotion of the material;
14 (6) Purpose of the author, creator, publisher or
15 disseminator.
16 (d) Sentence.
17 Obscenity is a Class A misdemeanor. A second or
18 subsequent offense is a Class 4 felony.
19 (e) Prima Facie Evidence.
20 The creation, purchase, procurement or possession of a
21 mold, engraved plate or other embodiment of obscenity
22 specially adapted for reproducing multiple copies, or the
23 possession of more than 3 copies of obscene material shall be
24 prima facie evidence of an intent to disseminate.
25 (f) Affirmative Defenses.
26 It shall be an affirmative defense to obscenity that the
27 dissemination:
28 (1) Was not for gain and was made to personal associates
29 other than a child children under 18 years of age;
30 (2) Was to institutions or individuals in aid of
31 legitimate scientific or educational purposes and was not
32 disseminated to a child under 18 years of age; having
33 scientific or other special justification for possession of
34 such material.
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1 (3) Was by institutions or individuals in aid of
2 legitimate scientific or educational purposes and was not
3 disseminated to a child under 18 years of age.
4 (g) Forfeiture of property:
5 (1) Legislative Declaration. Obscenity is a
6 far-reaching and extremely profitable crime. This crime
7 persists despite the threat of prosecution and successful
8 prosecution because existing sanctions do not effectively
9 reach the money and other assets generated by it. It is
10 therefore necessary to supplement existing sanctions by
11 mandating forfeiture of money and other assets generated by
12 this crime. Forfeiture diminishes the financial incentives
13 which encourage and sustain obscenity and secures for the
14 State, local government and prosecutors a resource for
15 prosecuting these crimes.
16 (2) Definitions.
17 (i) "Person" means an individual, partnership,
18 private corporation, public, municipal, governmental or
19 quasi-municipal corporation, unincorporated association,
20 trustee or receiver.
21 (ii) "Property" means:
22 (a) real estate, including things growing on,
23 affixed to and found in land, and any kind of
24 interest therein; and
25 (b) tangible and intangible personal property,
26 including rights, privileges, interests, claims and
27 securities.
28 (iii) "Material" means any book, magazine,
29 newspaper, or other printed or written material; any
30 picture, drawing, photograph, motion picture, or other
31 pictorial representation; any statue or other figure; any
32 recording, transcription, or mechanical, chemical or
33 electrical reproduction; or any other article, equipment,
34 machine, material, slide, negative, videotape, laser
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1 disc, photocopy, computer hardware, software, floppy
2 disc, or computer generated image. "Material" also means
3 live or recorded telephone messages when transmitted,
4 disseminated, or distributed as part of a commercial
5 transaction.
6 (iv) "Performance" means any play, dance, or other
7 exhibition performed before an audience of one or more
8 persons.
9 (v) "Prurient interest" means an unhealthy or
10 abnormally lustful or erotic interest, or a lascivious or
11 degrading interest, or a shameful or morbid interest in
12 nudity, sex, or excretion.
13 (vi) "Patently offensive" means so offensive on its
14 face as to affront contemporary adult community standards
15 in describing or depicting sexual matters.
16 (3) Forfeiture of Property. Any person who has been
17 convicted previously of the offense of obscenity and who
18 shall be convicted of a second or subsequent offense of
19 obscenity shall forfeit to the State of Illinois:
20 (i) Any property constituting or derived from any
21 proceeds such person obtained, directly or indirectly, as a
22 result of such offense; and
23 (ii) Any of the person's property used in any manner,
24 wholly or in part, to commit such offense.
25 (4) Forfeiture Hearing. At any time following a second
26 or subsequent conviction for obscenity, the court shall, upon
27 petition by the Attorney General or the State's Attorney,
28 conduct a hearing to determine whether there is any property
29 that is subject to forfeiture as provided hereunder. At the
30 forfeiture hearing the People shall have the burden of
31 establishing by preponderance of the evidence that such
32 property is subject to forfeiture.
33 (5) Prior Restraint.
34 Nothing in this subsection shall be construed as
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1 authorizing the prior restraint of any showing, performance
2 or exhibition of allegedly obscene films, plays or other
3 presentations or of any sale or distribution of allegedly
4 obscene materials.
5 (6) Seizure, Sale and Distribution of the Property.
6 (i) Upon a determination under subparagraph (4) that
7 there is property subject to forfeiture, the court shall
8 authorize the Attorney General or the State's Attorney,
9 except as provided in this Section, to seize all property
10 declared forfeited upon terms and conditions as the court
11 shall deem proper.
12 (ii) The Attorney General or State's Attorney is
13 authorized to sell all property forfeited and seized pursuant
14 to this Article, and, after the deduction of all requisite
15 expenses of administration and sale, shall distribute the
16 proceeds of such sale, along with any moneys forfeited or
17 seized, in accordance with subparagraph (iii) hereof. If the
18 Attorney General or State's Attorney believes any such
19 property describes, depicts or portrays any of the acts or
20 activities described in subsection (b) of this Section, he
21 shall apply to the court for an order to destroy such
22 property, and if the court determines the property describes,
23 depicts or portrays such acts it shall order the Attorney
24 General or State's Attorney to destroy such property.
25 (iii) All monies and the sale proceeds of all other
26 property forfeited and seized pursuant hereto shall be
27 distributed as follows:
28 (a) Fifty percent shall be distributed to the unit of
29 local government whose officers or employees conducted the
30 investigation into and caused the arrest or arrests and
31 prosecution leading to the forfeiture, or, if the
32 investigations, arrest or arrests and prosecution leading to
33 the forfeiture were undertaken by the sheriff, this portion
34 shall be distributed to the county for deposit in a special
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1 fund in the county treasury appropriated to the sheriff.
2 Amounts distributed to the county for the sheriff or to the
3 units of local government hereunder shall be used for
4 enforcement of laws or ordinances governing obscenity and
5 child pornography. In the event, however, that the
6 investigation, arrest or arrests and prosecution leading to
7 the forfeiture were undertaken solely by a State agency, the
8 portion provided hereunder shall be paid into the State
9 treasury to be used for enforcement of laws governing
10 obscenity and child pornography.
11 (b) Twenty-five percent shall be distributed to the
12 county in which the prosecution resulting in the forfeiture
13 was instituted, deposited in a special fund in the county
14 treasury and appropriated to the State's Attorney for use in
15 the enforcement of laws governing obscenity and child
16 pornography.
17 (c) Twenty-five percent shall be distributed to the
18 Office of the State's Attorneys Appellate Prosecutor and
19 deposited in the Obscenity Profits Forfeiture Fund, which is
20 hereby created in the State Treasury, to be used by the
21 Office of the State's Attorneys Appellate Prosecutor for
22 additional expenses incurred in prosecuting appeals arising
23 under Sections 11-20 and 11-20.1 of the Criminal Code of
24 1961. Any amounts remaining in the Fund after all additional
25 expenses have been paid shall be used by the Office to reduce
26 the participating county contributions to the Office on a
27 pro-rated basis as determined by the board of governors of
28 the Office of the State's Attorneys Appellate Prosecutor
29 based on the populations of the participating counties.
30 (7) Construction of subsection (g).
31 It shall be the intent of the General Assembly that this
32 subsection be liberally construed so as to effect its
33 purposes. The forfeiture of property and other remedies
34 hereunder shall be considered to be in addition, and not
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1 exclusive of any sentence or other remedy provided by law.
2 Subsection (g) of this Section shall not apply to any
3 property of a public library or any property of a library
4 operated by an institution accredited by a generally
5 recognized accrediting agency.
6 (Source: P.A. 85-1014.)".