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91_HB1391eng HB1391 Engrossed 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 personheknows 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 HB1391 Engrossed -2- LRB9105369RCks 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 HB1391 Engrossed -3- LRB9105369RCks 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 personheknows 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 HB1391 Engrossed -4- LRB9105369RCks 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 HB1391 Engrossed -5- LRB9105369RCks 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 isshall bean 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 defendanthetook 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'shis18 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 HB1391 Engrossed -6- LRB9105369RCks 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 HB1391 Engrossed -7- LRB9105369RCks 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.)