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91_HB1391
LRB9105369RCks
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 the
14 person he knows or reasonably should know to be under the
15 age of 18 or any institutionalized severely or profoundly
16 mentally retarded person where such child or
17 institutionalized severely or profoundly mentally
18 retarded person is:
19 (i) actually or by simulation engaged in any
20 act of sexual intercourse with any person or animal;
21 or
22 (ii) actually or by simulation engaged in any
23 act of sexual contact involving the sex organs of
24 the child or institutionalized severely or
25 profoundly mentally retarded person and the mouth,
26 anus, or sex organs of another person or animal; or
27 which involves the mouth, anus or sex organs of the
28 child or institutionalized severely or profoundly
29 mentally retarded person and the sex organs of
30 another person or animal; or
31 (iii) actually or by simulation engaged in any
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1 act of masturbation; or
2 (iv) actually or by simulation portrayed as
3 being the object of, or otherwise engaged in, any
4 act of lewd fondling, touching, or caressing
5 involving another person or animal; or
6 (v) actually or by simulation engaged in any
7 act of excretion or urination within a sexual
8 context; or
9 (vi) actually or by simulation portrayed or
10 depicted as bound, fettered, or subject to sadistic,
11 masochistic, or sadomasochistic abuse in any sexual
12 context; or
13 (vii) depicted or portrayed in any pose,
14 posture or setting involving a lewd exhibition of
15 the unclothed genitals, pubic area, buttocks, or, if
16 such person is female, a fully or partially
17 developed breast of the child or other person; or
18 (2) with the knowledge of the nature or content
19 thereof, reproduces, disseminates, offers to disseminate,
20 exhibits or possesses with intent to disseminate any
21 film, videotape, photograph or other similar visual
22 reproduction or depiction by computer of any child or
23 institutionalized severely or profoundly mentally
24 retarded person whom the person knows or reasonably
25 should know to be under the age of 18 or to be an
26 institutionalized severely or profoundly mentally
27 retarded person, engaged in any activity described in
28 subparagraphs (i) through (vii) of paragraph (1) of this
29 subsection; or
30 (3) with knowledge of the subject matter or theme
31 thereof, produces any stage play, live performance, film,
32 videotape or other similar visual portrayal or depiction
33 by computer which includes a child whom the person knows
34 or reasonably should know to be under the age of 18 or an
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1 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 (4) solicits, uses, persuades, induces, entices, or
6 coerces any child whom the person he knows or reasonably
7 should know to be under the age of 18 or an
8 institutionalized severely or profoundly mentally
9 retarded person to appear in any stage play, live
10 presentation, film, videotape, photograph or other
11 similar visual reproduction or depiction by computer in
12 which the child or institutionalized severely or
13 profoundly mentally retarded person is or will be
14 depicted, actually or by simulation, in any act, pose or
15 setting described in subparagraphs (i) through (vii) of
16 paragraph (1) of this subsection; or
17 (4.5) solicits, uses, persuades, induces, entices,
18 or coerces any child by way of computer whom the person
19 knows or reasonably should know to be under the age of 18
20 or an institutionalized severely or profoundly mentally
21 retarded person to appear in any stage play, live
22 presentation, film, videotape, photograph or other
23 similar visual reproduction or depiction by computer in
24 which the child or institutionalized severely or
25 profoundly mentally retarded person is or will be
26 depicted, actually or by simulation, in any act, pose or
27 setting described in subparagraphs (i) through (vii) of
28 paragraph (1) of this subsection; or
29 (5) is a parent, step-parent, legal guardian or
30 other person having care or custody of a child whom the
31 person knows or reasonably should know to be under the
32 age of 18 or an institutionalized severely or profoundly
33 mentally retarded person and who knowingly permits,
34 induces, promotes, or arranges for such child or
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1 institutionalized severely or profoundly mentally
2 retarded person to appear in any stage play, live
3 performance, film, videotape, photograph or other similar
4 visual presentation, portrayal or simulation or depiction
5 by computer of any act or activity described in
6 subparagraphs (i) through (vii) of paragraph (1) of this
7 subsection; or
8 (6) with knowledge of the nature or content
9 thereof, possesses any film, videotape, photograph or
10 other similar visual reproduction or depiction by
11 computer of any child or institutionalized severely or
12 profoundly mentally retarded person whom the person knows
13 or reasonably should know to be under the age of 18 or to
14 be an institutionalized severely or profoundly mentally
15 retarded person, engaged in any activity described in
16 subparagraphs (i) through (vii) of paragraph (1) of this
17 subsection; or
18 (7) solicits, uses, persuades, induces, entices, or
19 coerces a person to provide a child under the age of 18
20 or an institutionalized severely or profoundly mentally
21 retarded person to appear in any videotape, photograph,
22 film, stage play, live presentation, or other similar
23 visual reproduction or depiction by computer in which the
24 child or an institutionalized severely or profoundly
25 mentally retarded person will be depicted, actually or by
26 simulation, in any act, pose, or setting described in
27 subparagraphs (i) through (vii) of paragraph (1) of this
28 subsection; or .
29 (7.5) solicits, uses, persuades, induces, entices,
30 or coerces a person by way of computer to provide a child
31 under the age of 18 or an institutionalized severely or
32 profoundly mentally retarded person to appear in any
33 stage play, live presentation, film, videotape,
34 photograph or other similar visual reproduction or
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1 depiction by computer in which the child or
2 institutionalized severely or profoundly mentally
3 retarded person is or will be depicted, actually or by
4 simulation, in any act, pose or setting described in
5 subparagraphs (i) through (vii) of paragraph (1) of this
6 subsection.
7 (b) (1) It is shall be an affirmative defense to a
8 charge of child pornography that the defendant reasonably
9 believed, under all of the circumstances, that the child was
10 18 years of age or older or that the person was not an
11 institutionalized severely or profoundly mentally retarded
12 person but only where, prior to the act or acts giving rise
13 to a prosecution under this Section, the defendant he took
14 some affirmative action or made a bonafide inquiry designed
15 to ascertain whether the child was 18 years of age or older
16 or that the person was not an institutionalized severely or
17 profoundly mentally retarded person and the defendant's his
18 reliance upon the information so obtained was clearly
19 reasonable.
20 (2) (Blank).
21 (3) The charge of child pornography shall not apply to
22 the performance of official duties by law enforcement or
23 prosecuting officers, court personnel or attorneys, nor to
24 bonafide treatment or professional education programs
25 conducted by licensed physicians, psychologists or social
26 workers.
27 (4) Possession by the defendant of more than one of the
28 same film, videotape or visual reproduction or depiction by
29 computer in which child pornography is depicted shall raise a
30 rebuttable presumption that the defendant possessed such
31 materials with the intent to disseminate them.
32 (c) Violation of paragraph (1), (4), (5), or (7) of
33 subsection (a) is a Class 1 felony with a mandatory minimum
34 fine of $2,000 and a maximum fine of $100,000. Violation of
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1 paragraph (3) of subsection (a) is a Class 1 felony with a
2 mandatory minimum fine of $1500 and a maximum fine of
3 $100,000. Violation of paragraph (2) of subsection (a) is a
4 Class 1 felony with a mandatory minimum fine of $1000 and a
5 maximum fine of $100,000. Violation of paragraph (6) of
6 subsection (a) is a Class 3 felony with a mandatory minimum
7 fine of $1000 and a maximum fine of $100,000. A violation of
8 paragraph (4.5) or (7.5) of subsection (a) is a Class X
9 felony with a mandatory minimum fine of $5,000 and a maximum
10 fine of $100,000.
11 (d) If a person is convicted of a second or subsequent
12 violation of this Section within 10 years of a prior
13 conviction, the court shall order a presentence psychiatric
14 examination of the person. The examiner shall report to the
15 court whether treatment of the person is necessary.
16 (e) Any film, videotape, photograph or other similar
17 visual reproduction or depiction by computer which includes a
18 child under the age of 18 or an institutionalized severely or
19 profoundly mentally retarded person engaged in any activity
20 described in subparagraphs (i) through (vii) or paragraph 1
21 of subsection (a), and any material or equipment used or
22 intended for use in photographing, filming, printing,
23 producing, reproducing, manufacturing, projecting,
24 exhibiting, depiction by computer, or disseminating such
25 material shall be seized and forfeited in the manner, method
26 and procedure provided by Section 36-1 of this Code for the
27 seizure and forfeiture of vessels, vehicles and aircraft.
28 (e-5) Upon the conclusion of a case brought under this
29 Section, the court shall seal all evidence depicting a victim
30 or witness that is sexually explicit. The evidence may be
31 unsealed and viewed, on a motion of the party seeking to
32 unseal and view the evidence, only for good cause shown and
33 in the discretion of the court. The motion must expressly
34 set forth the purpose for viewing the material. The State's
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1 attorney and the victim, if possible, shall be provided
2 reasonable notice of the hearing on the motion to unseal the
3 evidence. Any person entitled to notice of a hearing under
4 this subsection (e-5) may object to the motion.
5 (f) Definitions. For the purposes of this Section:
6 (1) "Disseminate" means (i) to sell, distribute,
7 exchange or transfer possession, whether with or without
8 consideration or (ii) to make a depiction by computer
9 available for distribution or downloading through the
10 facilities of any telecommunications network or through
11 any other means of transferring computer programs or data
12 to a computer;
13 (2) "Produce" means to direct, promote, advertise,
14 publish, manufacture, issue, present or show;
15 (3) "Reproduce" means to make a duplication or
16 copy;
17 (4) "Depict by computer" means to generate or
18 create, or cause to be created or generated, a computer
19 program or data that, after being processed by a computer
20 either alone or in conjunction with one or more computer
21 programs, results in a visual depiction on a computer
22 monitor, screen, or display.
23 (5) "Depiction by computer" means a computer
24 program or data that, after being processed by a computer
25 either alone or in conjunction with one or more computer
26 programs, results in a visual depiction on a computer
27 monitor, screen, or display.
28 (6) "Computer", "computer program", and "data" have
29 the meanings ascribed to them in Section 16D-2 of this
30 Code.
31 (Source: P.A. 90-68, eff. 7-8-97; 90-678, eff. 7-31-98;
32 90-786, eff. 1-1-99; revised 9-16-98.)