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90_SB1505eng
725 ILCS 5/115-10 from Ch. 38, par. 115-10
Amends the Code of Criminal Procedure of 1963. Provides
that in certain prosecutions for physical or sexual acts
perpetrated upon or against a child under the age of 13,
certain statements made by the child are admissible only if
the statements were made before the victim attained 13 years
of age, but the statements may be admitted regardless of the
age of the victim at the time of the proceeding.
LRB9007343RCsbA
SB1505 Engrossed LRB9007343RCsbA
1 AN ACT concerning evidence.
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 1961 is amended by
5 changing 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 the offense of child pornography
9 who:
10 (1) films, videotapes, photographs, or otherwise
11 depicts or portrays by means of any similar visual medium
12 or reproduction or depicts by computer any child whom he
13 knows or reasonably should know to be under the age of 18
14 or any institutionalized severely or profoundly mentally
15 retarded person where such child or institutionalized
16 severely or profoundly mentally retarded person is:
17 (i) actually or by simulation engaged in any
18 act of sexual intercourse with any person or animal;
19 or
20 (ii) actually or by simulation engaged in any
21 act of sexual contact involving the sex organs of
22 the child or institutionalized severely or
23 profoundly mentally retarded person and the mouth,
24 anus, or sex organs of another person or animal; or
25 which involves the mouth, anus or sex organs of the
26 child or institutionalized severely or profoundly
27 mentally retarded person and the sex organs of
28 another person or animal; or
29 (iii) actually or by simulation engaged in any
30 act of masturbation; or
31 (iv) actually or by simulation portrayed as
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1 being the object of, or otherwise engaged in, any
2 act of lewd fondling, touching, or caressing
3 involving another person or animal; or
4 (v) actually or by simulation engaged in any
5 act of excretion or urination within a sexual
6 context; or
7 (vi) actually or by simulation portrayed or
8 depicted as bound, fettered, or subject to sadistic,
9 masochistic, or sadomasochistic abuse in any sexual
10 context; or
11 (vii) depicted or portrayed in any pose,
12 posture or setting involving a lewd exhibition of
13 the unclothed genitals, pubic area, buttocks, or, if
14 such person is female, a fully or partially
15 developed breast of the child or other person; or
16 (2) with the knowledge of the nature or content
17 thereof, reproduces, disseminates, offers to disseminate,
18 exhibits or possesses with intent to disseminate any
19 film, videotape, photograph or other similar visual
20 reproduction or depiction by computer of any child or
21 institutionalized severely or profoundly mentally
22 retarded person whom the person knows or reasonably
23 should know to be under the age of 18 or to be an
24 institutionalized severely or profoundly mentally
25 retarded person, engaged in any activity described in
26 subparagraphs (i) through (vii) of paragraph (1) of this
27 subsection; or
28 (3) with knowledge of the subject matter or theme
29 thereof, produces any stage play, live performance, film,
30 videotape or other similar visual portrayal or depiction
31 by computer which includes a child whom the person knows
32 or reasonably should know to be under the age of 18 or an
33 institutionalized severely or profoundly mentally
34 retarded person engaged in any activity described in
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1 subparagraphs (i) through (vii) of paragraph (1) of this
2 subsection; or
3 (4) solicits, uses, persuades, induces, entices, or
4 coerces any child whom he knows or reasonably should know
5 to be under the age of 18 or an institutionalized
6 severely or profoundly mentally retarded person to appear
7 in any stage play, live presentation, film, videotape,
8 photograph or other similar visual reproduction or
9 depiction by computer in which the child or
10 institutionalized severely or profoundly mentally
11 retarded person is or will be depicted, actually or by
12 simulation, in any act, pose or setting described in
13 subparagraphs (i) through (vii) of paragraph (1) of this
14 subsection; or
15 (5) is a parent, step-parent, legal guardian or
16 other person having care or custody of a child whom the
17 person knows or reasonably should know to be under the
18 age of 18 or an institutionalized severely or profoundly
19 mentally retarded person and who knowingly permits,
20 induces, promotes, or arranges for such child or
21 institutionalized severely or profoundly mentally
22 retarded person to appear in any stage play, live
23 performance, film, videotape, photograph or other similar
24 visual presentation, portrayal or simulation or depiction
25 by computer of any act or activity described in
26 subparagraphs (i) through (vii) of paragraph (1) of this
27 subsection; or
28 (6) with knowledge of the nature or content
29 thereof, possesses any film, videotape, photograph or
30 other similar visual reproduction or depiction by
31 computer of any child or institutionalized severely or
32 profoundly mentally retarded person whom the person knows
33 or reasonably should know to be under the age of 18 or to
34 be an 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 (7) solicits, uses, persuades, induces, entices, or
5 coerces a person to provide a child under the age of 18
6 or an institutionalized severely or profoundly mentally
7 retarded person to appear in any videotape, photograph,
8 film, stage play, live presentation, or other similar
9 visual reproduction or depiction by computer in which the
10 child or an institutionalized severely or profoundly
11 mentally retarded person will be depicted, actually or by
12 simulation, in any act, pose, or setting described in
13 subparagraphs (i) through (vii) of paragraph (1) of this
14 subsection.
15 (b) (1) It shall be an affirmative defense to a charge
16 of child pornography that the defendant reasonably believed,
17 under all of the circumstances, that the child was 18 years
18 of age or older or that the person was not an
19 institutionalized severely or profoundly mentally retarded
20 person but only where, prior to the act or acts giving rise
21 to a prosecution under this Section, he took some affirmative
22 action or made a bonafide inquiry designed to ascertain
23 whether the child was 18 years of age or older or that the
24 person was not an institutionalized severely or profoundly
25 mentally retarded person and his reliance upon the
26 information so obtained was clearly reasonable.
27 (2) It shall be an affirmative defense to a charge of
28 child pornography that the defendant was employed by a public
29 library or any library operated by an institution accredited
30 by a generally recognized accrediting agency, at the time the
31 act leading to the charge of child pornography took place and
32 such act was committed during the course of employment.
33 (3) The charge of child pornography shall not apply to
34 the performance of official duties by law enforcement or
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1 prosecuting officers, court personnel or attorneys, nor to
2 bonafide treatment or professional education programs
3 conducted by licensed physicians, psychologists or social
4 workers.
5 (4) Possession by the defendant of more than one of the
6 same film, videotape or visual reproduction or depiction by
7 computer in which child pornography is depicted shall raise a
8 rebuttable presumption that the defendant possessed such
9 materials with the intent to disseminate them.
10 (c) Violation of paragraph (1), (4), (5), or (7) of
11 subsection (a) is a Class 1 felony with a mandatory minimum
12 fine of $2,000 and a maximum fine of $100,000. Violation of
13 paragraph (3) of subsection (a) is a Class 1 felony with a
14 mandatory minimum fine of $1500 and a maximum fine of
15 $100,000. Violation of paragraph (2) of subsection (a) is a
16 Class 1 felony with a mandatory minimum fine of $1000 and a
17 maximum fine of $100,000. Violation of paragraph (6) of
18 subsection (a) is a Class 3 felony with a mandatory minimum
19 fine of $1000 and a maximum fine of $100,000.
20 (d) If a person is convicted of a second or subsequent
21 violation of this Section within 10 years of a prior
22 conviction, the court shall order a presentence psychiatric
23 examination of the person. The examiner shall report to the
24 court whether treatment of the person is necessary.
25 (e) Any film, videotape, photograph or other similar
26 visual reproduction or depiction by computer which includes a
27 child under the age of 18 or an institutionalized severely or
28 profoundly mentally retarded person engaged in any activity
29 described in subparagraphs (i) through (vii) or paragraph 1
30 of subsection (a), and any material or equipment used or
31 intended for use in photographing, filming, printing,
32 producing, reproducing, manufacturing, projecting,
33 exhibiting, depiction by computer, or disseminating such
34 material shall be seized and forfeited in the manner, method
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1 and procedure provided by Section 36-1 of this Code for the
2 seizure and forfeiture of vessels, vehicles and aircraft.
3 (e-5) Upon the conclusion of a case brought under this
4 Section, the court shall seal all evidence depicting a victim
5 or witness that is sexually explicit. The evidence may be
6 unsealed and viewed, on a motion of the party seeking to
7 unseal and view the evidence, only for good cause shown and
8 in the discretion of the court. The motion must expressly
9 set forth the purpose for viewing the material. The State's
10 attorney and the victim, if possible, shall be provided
11 reasonable notice of the hearing on the motion to unseal the
12 evidence. Any person entitled to notice of a hearing under
13 this subsection (e-5) may object to the motion.
14 (f) Definitions. For the purposes of this Section:
15 (1) "Disseminate" means (i) to sell, distribute,
16 exchange or transfer possession, whether with or without
17 consideration or (ii) to make a depiction by computer
18 available for distribution or downloading through the
19 facilities of any telecommunications network or through
20 any other means of transferring computer programs or data
21 to a computer;
22 (2) "Produce" means to direct, promote, advertise,
23 publish, manufacture, issue, present or show;
24 (3) "Reproduce" means to make a duplication or
25 copy;
26 (4) "Depict by computer" means to generate or
27 create, or cause to be created or generated, a computer
28 program or data that, after being processed by a computer
29 either alone or in conjunction with one or more computer
30 programs, results in a visual depiction on a computer
31 monitor, screen, or display.
32 (5) "Depiction by computer" means a computer
33 program or data that, after being processed by a computer
34 either alone or in conjunction with one or more computer
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1 programs, results in a visual depiction on a computer
2 monitor, screen, or display.
3 (6) "Computer", "computer program", and "data" have
4 the meanings ascribed to them in Section 16D-2 of this
5 Code.
6 (Source: P.A. 90-68, eff. 7-8-97.)
7 Section 10. The Code of Criminal Procedure of 1963 is
8 amended by changing Section 115-10 as follows:
9 (725 ILCS 5/115-10) (from Ch. 38, par. 115-10)
10 Sec. 115-10. Certain hearsay exceptions.
11 (a) In a prosecution for a physical or sexual act
12 perpetrated upon or against a child under the age of 13, or a
13 person who was an institutionalized severely or profoundly
14 mentally retarded person as defined in Section 2-10.1 of the
15 Criminal Code of 1961 at the time the act was committed,
16 including but not limited to prosecutions for violations of
17 Sections 12-13 through 12-16 of the Criminal Code of 1961 and
18 prosecutions for violations of Sections 10-1, 10-2, 10-3,
19 10-3.1, 10-4, 10-5, 10-6, 10-7, 11-6, 11-9, 11-11, 11-15.1,
20 11-17.1, 11-18.1, 11-19.1, 11-19.2, 11-20.1, 11-21, 12-1,
21 12-2, 12-3, 12-3.2, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-4.7,
22 12-5, 12-6, 12-6.1, 12-7.1, 12-7.3, 12-7.4, 12-10, 12-11,
23 12-21.5, 12-21.6 and 12-32 of the Criminal Code of 1961, the
24 following evidence shall be admitted as an exception to the
25 hearsay rule:
26 (1) testimony by the victim such child or
27 institutionalized severely or profoundly mentally
28 retarded person, of an out of court statement made by the
29 victim such child or institutionalized severely or
30 profoundly mentally retarded person, that he or she
31 complained of such act to another; and
32 (2) testimony of an out of court statement made by
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1 the victim such child or institutionalized severely or
2 profoundly mentally retarded person, describing any
3 complaint of such act or matter or detail pertaining to
4 any act which is an element of an offense which is the
5 subject of a prosecution for a sexual or physical act
6 against that victim perpetrated upon or against a child
7 or institutionalized severely or profoundly mentally
8 retarded person.
9 (b) Such testimony shall only be admitted if:
10 (1) The court finds in a hearing conducted outside
11 the presence of the jury that the time, content, and
12 circumstances of the statement provide sufficient
13 safeguards of reliability; and
14 (2) The child or institutionalized severely or
15 profoundly mentally retarded person either:
16 (A) testifies at the proceeding; or
17 (B) is unavailable as a witness and there is
18 corroborative evidence of the act which is the
19 subject of the statement; and .
20 (3) In a case involving an offense perpetrated
21 against a child under the age of 13, the out of court
22 statement was made before the victim attained 13 years of
23 age, but the statement may be admitted regardless of the
24 age of the victim at the time of the proceeding.
25 (c) If a statement is admitted pursuant to this Section,
26 the court shall instruct the jury that it is for the jury to
27 determine the weight and credibility to be given the
28 statement and that, in making the determination, it shall
29 consider the age and maturity of the child, or the
30 intellectual capabilities of the institutionalized severely
31 or profoundly mentally retarded person, the nature of the
32 statement, the circumstances under which the statement was
33 made, and any other relevant factor.
34 (d) The proponent of the statement shall give the
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1 adverse party reasonable notice of his intention to offer the
2 statement and the particulars of the statement.
3 (Source: P.A. 88-166; 88-479; 88-670, eff. 12-2-94.)