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90_SB1504
720 ILCS 5/11-20.1 from Ch. 38, par. 11-20.1
Amends the Criminal Code of 1961. Provides that upon the
conclusion of a case, all evidence of child pornography
depicting a victim or witness that is sexually explicit shall
be sealed. Permits the evidence to be unsealed and viewed in
certain circumstances. Effective immediately.
LRB9011200MWpc
LRB9011200MWpc
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 any child whom he knows or reasonably should know
6 to be under the age of 18 or an institutionalized
7 severely or profoundly mentally retarded person to appear
8 in any stage play, live presentation, film, videotape,
9 photograph or other similar visual reproduction or
10 depiction by computer in which the child or
11 institutionalized severely or profoundly mentally
12 retarded person is or will be depicted, actually or by
13 simulation, in any act, pose or setting described in
14 subparagraphs (i) through (vii) of paragraph (1) of this
15 subsection; or
16 (5) is a parent, step-parent, legal guardian or
17 other person having care or custody of a child whom the
18 person knows or reasonably should know to be under the
19 age of 18 or an institutionalized severely or profoundly
20 mentally retarded person and who knowingly permits,
21 induces, promotes, or arranges for such child or
22 institutionalized severely or profoundly mentally
23 retarded person to appear in any stage play, live
24 performance, film, videotape, photograph or other similar
25 visual presentation, portrayal or simulation or depiction
26 by computer of any act or activity described in
27 subparagraphs (i) through (vii) of paragraph (1) of this
28 subsection; or
29 (6) with knowledge of the nature or content
30 thereof, possesses any film, videotape, photograph or
31 other similar visual reproduction or depiction by
32 computer of any child or institutionalized severely or
33 profoundly mentally retarded person whom the person knows
34 or reasonably should know to be under the age of 18 or to
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1 be an institutionalized severely or profoundly mentally
2 retarded person, engaged in any activity described in
3 subparagraphs (i) through (vii) of paragraph (1) of this
4 subsection; or
5 (7) solicits, uses, persuades, induces, entices, or
6 coerces a person to provide a child under the age of 18
7 or an institutionalized severely or profoundly mentally
8 retarded person to appear in any videotape, photograph,
9 film, stage play, live presentation, or other similar
10 visual reproduction or depiction by computer in which the
11 child or an institutionalized severely or profoundly
12 mentally retarded person will be depicted, actually or by
13 simulation, in any act, pose, or setting described in
14 subparagraphs (i) through (vii) of paragraph (1) of this
15 subsection.
16 (b) (1) It shall be an affirmative defense to a charge
17 of child pornography that the defendant reasonably believed,
18 under all of the circumstances, that the child was 18 years
19 of age or older or that the person was not an
20 institutionalized severely or profoundly mentally retarded
21 person but only where, prior to the act or acts giving rise
22 to a prosecution under this Section, he took some affirmative
23 action or made a bonafide inquiry designed to ascertain
24 whether the child was 18 years of age or older or that the
25 person was not an institutionalized severely or profoundly
26 mentally retarded person and his reliance upon the
27 information so obtained was clearly reasonable.
28 (2) It shall be an affirmative defense to a charge of
29 child pornography that the defendant was employed by a public
30 library or any library operated by an institution accredited
31 by a generally recognized accrediting agency, at the time the
32 act leading to the charge of child pornography took place and
33 such act was committed during the course of employment.
34 (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, court personnel or attorneys, nor to
3 bonafide treatment or professional education programs
4 conducted by licensed physicians, psychologists or social
5 workers.
6 (4) Possession by the defendant of more than one of the
7 same film, videotape or visual reproduction or depiction by
8 computer in which child pornography is depicted shall raise a
9 rebuttable presumption that the defendant possessed such
10 materials with the intent to disseminate them.
11 (c) Violation of paragraph (1), (4), (5), or (7) of
12 subsection (a) is a Class 1 felony with a mandatory minimum
13 fine of $2,000 and a maximum fine of $100,000. Violation of
14 paragraph (3) of subsection (a) is a Class 1 felony with a
15 mandatory minimum fine of $1500 and a maximum fine of
16 $100,000. Violation of paragraph (2) of subsection (a) is a
17 Class 1 felony with a mandatory minimum fine of $1000 and a
18 maximum fine of $100,000. Violation of paragraph (6) of
19 subsection (a) is a Class 3 felony with a mandatory minimum
20 fine of $1000 and a maximum fine of $100,000.
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
27 visual reproduction or depiction by computer which includes a
28 child under the age of 18 or an institutionalized severely or
29 profoundly mentally retarded person engaged in any activity
30 described in subparagraphs (i) through (vii) or paragraph 1
31 of subsection (a), and any material or equipment used or
32 intended for use in photographing, filming, printing,
33 producing, reproducing, manufacturing, projecting,
34 exhibiting, depiction by computer, or disseminating such
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1 material shall be seized and forfeited in the manner, method
2 and procedure provided by Section 36-1 of this Code for the
3 seizure and forfeiture of vessels, vehicles and aircraft.
4 (e-5) Upon the conclusion of a case brought under this
5 Section, the court shall seal all evidence depicting a victim
6 or witness that is sexually explicit. The evidence may be
7 unsealed and viewed, on a motion of the party seeking to
8 unseal and view the evidence, only for good cause shown and
9 in the discretion of the court. The motion must expressly
10 set forth the purpose for viewing the material. The State's
11 attorney and the victim, if possible, shall be provided
12 reasonable notice of the hearing on the motion to unseal the
13 evidence. Any person entitled to notice of a hearing under
14 this subsection (e-5) may 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
26 copy;
27 (4) "Depict by computer" means to generate or
28 create, or cause to be created or generated, a computer
29 program or data that, after being processed by a computer
30 either alone or in conjunction with one or more computer
31 programs, results in a visual depiction on a computer
32 monitor, screen, or display.
33 (5) "Depiction by computer" means a computer
34 program or data that, after being processed by a computer
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1 either alone or in conjunction with one or more computer
2 programs, results in a visual depiction on a computer
3 monitor, screen, or display.
4 (6) "Computer", "computer program", and "data" have
5 the meanings ascribed to them in Section 16D-2 of this
6 Code.
7 (Source: P.A. 90-68, eff. 7-8-97.)
8 Section 99. Effective date. This Act takes effect upon
9 becoming law.