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92_HB4081sam002
LRB9212174RCcdam
1 AMENDMENT TO HOUSE BILL 4081
2 AMENDMENT NO. . Amend House Bill 4081 as follows:
3 on page 1, by replacing line 5 with the following:
4 "changing Sections 11-20.1, 12-3.2, 12-7.3, 12-30, and 33D-1
5 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 severely or profoundly mentally retarded person
15 where such child or severely or profoundly mentally
16 retarded person is:
17 (i) actually or by simulation engaged in any
18 act of sexual penetration or sexual conduct
19 intercourse with any person or animal; or
20 (ii) actually or by simulation engaged in any
21 act of sexual penetration or sexual conduct contact
22 involving the sex organs of the child or severely or
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1 profoundly mentally retarded person and the mouth,
2 anus, or sex organs of another person or animal; or
3 which involves the mouth, anus or sex organs of the
4 child or severely or profoundly mentally retarded
5 person and the sex organs of another person or
6 animal; or
7 (iii) actually or by simulation engaged in any
8 act of masturbation; or
9 (iv) actually or by simulation portrayed as
10 being the object of, or otherwise engaged in, any
11 act of lewd fondling, touching, or caressing
12 involving another person or animal; or
13 (v) actually or by simulation engaged in any
14 act of excretion or urination within a sexual
15 context; or
16 (vi) actually or by simulation portrayed or
17 depicted as bound, fettered, or subject to sadistic,
18 masochistic, or sadomasochistic abuse in any sexual
19 context; or
20 (vii) depicted or portrayed in any pose,
21 posture or setting involving a lewd exhibition of
22 the unclothed genitals, pubic area, buttocks, or, if
23 such person is female, a fully or partially
24 developed breast of the child or other person; or
25 (2) with the knowledge of the nature or content
26 thereof, reproduces, disseminates, offers to disseminate,
27 exhibits or possesses with intent to disseminate any
28 film, videotape, photograph or other similar visual
29 reproduction or depiction by computer of any child or
30 severely or profoundly mentally retarded person whom the
31 person knows or reasonably should know to be under the
32 age of 18 or to be a severely or profoundly mentally
33 retarded person, engaged in any activity described in
34 subparagraphs (i) through (vii) of paragraph (1) of this
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1 subsection; or
2 (3) with knowledge of the subject matter or theme
3 thereof, produces any stage play, live performance, film,
4 videotape or other similar visual portrayal or depiction
5 by computer which includes a child whom the person knows
6 or reasonably should know to be under the age of 18 or a
7 severely or profoundly mentally retarded person engaged
8 in any activity described in subparagraphs (i) through
9 (vii) of paragraph (1) of this subsection; or
10 (4) solicits, uses, persuades, induces, entices, or
11 coerces any child whom he knows or reasonably should know
12 to be under the age of 18 or a severely or profoundly
13 mentally retarded person to appear in any stage play,
14 live presentation, film, videotape, photograph or other
15 similar visual reproduction or depiction by computer in
16 which the child or severely or profoundly mentally
17 retarded person is or will be depicted, actually or by
18 simulation, in any act, pose or setting described in
19 subparagraphs (i) through (vii) of paragraph (1) of this
20 subsection; or
21 (5) is a parent, step-parent, legal guardian or
22 other person having care or custody of a child whom the
23 person knows or reasonably should know to be under the
24 age of 18 or a severely or profoundly mentally retarded
25 person and who knowingly permits, induces, promotes, or
26 arranges for such child or severely or profoundly
27 mentally retarded person to appear in any stage play,
28 live performance, film, videotape, photograph or other
29 similar visual presentation, portrayal or simulation or
30 depiction by computer of any act or activity described in
31 subparagraphs (i) through (vii) of paragraph (1) of this
32 subsection; or
33 (6) with knowledge of the nature or content
34 thereof, possesses any film, videotape, photograph or
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1 other similar visual reproduction or depiction by
2 computer of any child or severely or profoundly mentally
3 retarded person whom the person knows or reasonably
4 should know to be under the age of 18 or to be a severely
5 or profoundly mentally retarded person, engaged in any
6 activity described in subparagraphs (i) through (vii) of
7 paragraph (1) of this subsection; or
8 (7) solicits, uses, persuades, induces, entices, or
9 coerces a person to provide a child under the age of 18
10 or a severely or profoundly mentally retarded person to
11 appear in any videotape, photograph, film, stage play,
12 live presentation, or other similar visual reproduction
13 or depiction by computer in which the child or severely
14 or profoundly mentally retarded person will be depicted,
15 actually or by simulation, in any act, pose, or setting
16 described in subparagraphs (i) through (vii) of paragraph
17 (1) of this subsection.
18 (b) (1) It shall be an affirmative defense to a charge
19 of child pornography that the defendant reasonably believed,
20 under all of the circumstances, that the child was 18 years
21 of age or older or that the person was not a severely or
22 profoundly mentally retarded person but only where, prior to
23 the act or acts giving rise to a prosecution under this
24 Section, he took some affirmative action or made a bonafide
25 inquiry designed to ascertain whether the child was 18 years
26 of age or older or that the person was not a severely or
27 profoundly mentally retarded person and his reliance upon the
28 information so obtained was clearly reasonable.
29 (2) (Blank).
30 (3) The charge of child pornography shall not apply
31 to the performance of official duties by law enforcement
32 or prosecuting officers, court personnel or attorneys,
33 nor to bonafide treatment or professional education
34 programs conducted by licensed physicians, psychologists
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1 or social workers.
2 (4) Possession by the defendant of more than one of
3 the same film, videotape or visual reproduction or
4 depiction by computer in which child pornography is
5 depicted shall raise a rebuttable presumption that the
6 defendant possessed such materials with the intent to
7 disseminate them.
8 (5) The charge of child pornography does not apply
9 to a person who does not voluntarily possess a film,
10 videotape, or visual reproduction or depiction by
11 computer in which child pornography is depicted.
12 Possession is voluntary if the defendant knowingly
13 procures or receives a film, videotape, or visual
14 reproduction or depiction for a sufficient time to be
15 able to terminate his or her possession.
16 (c) Violation of paragraph (1), (4), (5), or (7) of
17 subsection (a) is a Class 1 felony with a mandatory minimum
18 fine of $2,000 and a maximum fine of $100,000. Violation of
19 paragraph (3) of subsection (a) is a Class 1 felony with a
20 mandatory minimum fine of $1500 and a maximum fine of
21 $100,000. Violation of paragraph (2) of subsection (a) is a
22 Class 1 felony with a mandatory minimum fine of $1000 and a
23 maximum fine of $100,000. Violation of paragraph (6) of
24 subsection (a) is a Class 3 felony with a mandatory minimum
25 fine of $1000 and a maximum fine of $100,000.
26 (d) If a person is convicted of a second or subsequent
27 violation of this Section within 10 years of a prior
28 conviction, the court shall order a presentence psychiatric
29 examination of the person. The examiner shall report to the
30 court whether treatment of the person is necessary.
31 (e) Any film, videotape, photograph or other similar
32 visual reproduction or depiction by computer which includes a
33 child under the age of 18 or a severely or profoundly
34 mentally retarded person engaged in any activity described in
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1 subparagraphs (i) through (vii) or paragraph 1 of subsection
2 (a), and any material or equipment used or intended for use
3 in photographing, filming, printing, producing, reproducing,
4 manufacturing, projecting, exhibiting, depiction by computer,
5 or disseminating such material shall be seized and forfeited
6 in the manner, method and procedure provided by Section 36-1
7 of this Code for the seizure and forfeiture of vessels,
8 vehicles and aircraft.
9 (e-5) Upon the conclusion of a case brought under this
10 Section, the court shall seal all evidence depicting a victim
11 or witness that is sexually explicit. The evidence may be
12 unsealed and viewed, on a motion of the party seeking to
13 unseal and view the evidence, only for good cause shown and
14 in the discretion of the court. The motion must expressly
15 set forth the purpose for viewing the material. The State's
16 attorney and the victim, if possible, shall be provided
17 reasonable notice of the hearing on the motion to unseal the
18 evidence. Any person entitled to notice of a hearing under
19 this subsection (e-5) may object to the motion.
20 (f) Definitions. For the purposes of this Section:
21 (1) "Disseminate" means (i) to sell, distribute,
22 exchange or transfer possession, whether with or without
23 consideration or (ii) to make a depiction by computer
24 available for distribution or downloading through the
25 facilities of any telecommunications network or through
26 any other means of transferring computer programs or data
27 to a computer;
28 (2) "Produce" means to direct, promote, advertise,
29 publish, manufacture, issue, present or show;
30 (3) "Reproduce" means to make a duplication or
31 copy;
32 (4) "Depict by computer" means to generate or
33 create, or cause to be created or generated, 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 (5) "Depiction by computer" means a computer
5 program or data that, after being processed by a computer
6 either alone or in conjunction with one or more computer
7 programs, results in a visual depiction on a computer
8 monitor, screen, or display.
9 (6) "Computer", "computer program", and "data" have
10 the meanings ascribed to them in Section 16D-2 of this
11 Code.
12 (7) "Child" includes a film, videotape, photograph,
13 or other similar visual medium or reproduction or
14 depiction by computer that is, or appears to be, that of
15 a person, either in part, or in total, under the age of
16 18, regardless of the method by which the film,
17 videotape, photograph, or other similar visual medium or
18 reproduction or depiction by computer is created,
19 adopted, or modified to appear as such. "Child" also
20 includes a film, videotape, photograph, or other similar
21 visual medium or reproduction or depiction by computer
22 that is advertised, promoted, presented, described, or
23 distributed in such a manner that conveys the impression
24 that the film, videotape, photograph, or other similar
25 visual medium or reproduction or depiction by computer is
26 of a person under the age of 18.
27 (8) "Sexual penetration" and "sexual conduct" have
28 the meanings ascribed to them in Section 12-12 of this
29 Code.
30 (g) Re-enactment; findings; purposes.
31 (1) The General Assembly finds and declares that:
32 (i) Section 50-5 of Public Act 88-680,
33 effective January 1, 1995, contained provisions
34 amending the child pornography statute, Section
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1 11-20.1 of the Criminal Code of 1961. Section 50-5
2 also contained other provisions.
3 (ii) In addition, Public Act 88-680 was
4 entitled "AN ACT to create a Safe Neighborhoods
5 Law". (A) Article 5 was entitled JUVENILE JUSTICE
6 and amended the Juvenile Court Act of 1987. (B)
7 Article 15 was entitled GANGS and amended various
8 provisions of the Criminal Code of 1961 and the
9 Unified Code of Corrections. (C) Article 20 was
10 entitled ALCOHOL ABUSE and amended various
11 provisions of the Illinois Vehicle Code. (D)
12 Article 25 was entitled DRUG ABUSE and amended the
13 Cannabis Control Act and the Illinois Controlled
14 Substances Act. (E) Article 30 was entitled FIREARMS
15 and amended the Criminal Code of 1961 and the Code
16 of Criminal Procedure of 1963. (F) Article 35
17 amended the Criminal Code of 1961, the Rights of
18 Crime Victims and Witnesses Act, and the Unified
19 Code of Corrections. (G) Article 40 amended the
20 Criminal Code of 1961 to increase the penalty for
21 compelling organization membership of persons. (H)
22 Article 45 created the Secure Residential Youth Care
23 Facility Licensing Act and amended the State Finance
24 Act, the Juvenile Court Act of 1987, the Unified
25 Code of Corrections, and the Private Correctional
26 Facility Moratorium Act. (I) Article 50 amended the
27 WIC Vendor Management Act, the Firearm Owners
28 Identification Card Act, the Juvenile Court Act of
29 1987, the Criminal Code of 1961, the Wrongs to
30 Children Act, and the Unified Code of Corrections.
31 (iii) On September 22, 1998, the Third
32 District Appellate Court in People v. Dainty, 701
33 N.E. 2d 118, ruled that Public Act 88-680 violates
34 the single subject clause of the Illinois
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1 Constitution (Article IV, Section 8 (d)) and was
2 unconstitutional in its entirety. As of the time
3 this amendatory Act of 1999 was prepared, People v.
4 Dainty was still subject to appeal.
5 (iv) Child pornography is a vital concern to
6 the people of this State and the validity of future
7 prosecutions under the child pornography statute of
8 the Criminal Code of 1961 is in grave doubt.
9 (2) It is the purpose of this amendatory Act of
10 1999 to prevent or minimize any problems relating to
11 prosecutions for child pornography that may result from
12 challenges to the constitutional validity of Public Act
13 88-680 by re-enacting the Section relating to child
14 pornography that was included in Public Act 88-680.
15 (3) This amendatory Act of 1999 re-enacts Section
16 11-20.1 of the Criminal Code of 1961, as it has been
17 amended. This re-enactment is intended to remove any
18 question as to the validity or content of that Section;
19 it is not intended to supersede any other Public Act that
20 amends the text of the Section as set forth in this
21 amendatory Act of 1999. The material is shown as
22 existing text (i.e., without underscoring) because, as
23 of the time this amendatory Act of 1999 was prepared,
24 People v. Dainty was subject to appeal to the Illinois
25 Supreme Court.
26 (4) The re-enactment by this amendatory Act of 1999
27 of Section 11-20.1 of the Criminal Code of 1961 relating
28 to child pornography that was amended by Public Act
29 88-680 is not intended, and shall not be construed, to
30 imply that Public Act 88-680 is invalid or to limit or
31 impair any legal argument concerning whether those
32 provisions were substantially re-enacted by other Public
33 Acts.
34 (Source: P.A. 91-54, eff. 6-30-99; 91-229, eff. 1-1-00;
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1 91-357, eff. 7-29-99; 92-16, eff. 6-28-01; 92-434, eff.
2 1-1-02.)"; and
3 on page 7, by inserting below line 34 the following:
4 "(720 ILCS 5/33D-1) (from Ch. 38, par. 33D-1)
5 Sec. 33D-1. (a) Contributing to the criminal delinquency
6 of a juvenile. Any person of the age of 17 21 years and
7 upwards, who with the intent to promote or facilitate the
8 commission of an offense that is either a felony or
9 misdemeanor, solicits, compels or directs any person under
10 the age of 17 years in the commission of the offense commits
11 the offense of contributing to the criminal delinquency of a
12 juvenile.
13 (b) Sentence. Contributing to the criminal delinquency
14 of a juvenile is a felony one grade higher than the offense
15 committed, if the offense committed is a felony, except when
16 the offense committed is first degree murder or a Class X
17 felony. When the offense committed is first degree murder or
18 a Class X felony, the penalty for contributing to the
19 criminal delinquency of a juvenile is the same as the penalty
20 for first degree murder or a Class X felony, respectively.
21 Contributing to the criminal delinquency of a juvenile is a
22 misdemeanor one grade higher than the offense committed, if
23 the offense committed is a misdemeanor, except when the
24 offense committed is a Class A misdemeanor. If the offense
25 committed is a Class A misdemeanor, the penalty for
26 contributing to the criminal delinquency of a juvenile is a
27 Class 4 felony.
28 (Source: P.A. 91-337, eff. 1-1-00.)
29 Section 10. The Wrongs to Children Act is amended by
30 changing Section 5.1 as follows:
31 (720 ILCS 150/5.1) (from Ch. 23, par. 2355.1)
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1 Sec. 5.1. Permitting sexual abuse of a child.
2 (a) A person responsible for a child's welfare commits
3 the offense of permitting sexual abuse of a child if he or
4 she has actual knowledge of and permits an act of sexual
5 abuse upon the child, or permits the child to engage in
6 prostitution as defined in Section 11-14 of the Criminal Code
7 of 1961.
8 (b) In this Section:
9 "Child" means a minor under the age of 17 years.
10 "Person responsible for the child's welfare" means the
11 child's parent, step-parent, legal guardian, or other person
12 having custody of a child, who is responsible for the child's
13 care at the time of the alleged sexual abuse.
14 "Sexual abuse" includes criminal sexual abuse or criminal
15 sexual assault as defined in Section 12-13, 12-14, 12-14.1,
16 12-15, or 12-16 of the Criminal Code of 1961.
17 "Prostitution" means prostitution as defined in Section
18 11-14 of the Criminal Code of 1961.
19 "Actual knowledge" includes credible allegations made by
20 the child.
21 (c) This Section does not apply to a person responsible
22 for the child's welfare who, having reason to believe that
23 sexual abuse has occurred, makes timely and reasonable
24 efforts to stop the sexual abuse by reporting the sexual
25 abuse in conformance with the Abused and Neglected Child
26 Reporting Act or by reporting the sexual abuse, or causing a
27 report to be made, to medical or law enforcement authorities
28 or anyone who is a mandated reporter under Section 4 of the
29 Abused and Neglected Child Reporting Act.
30 (d) Whenever a law enforcement officer has reason to
31 believe that the child or the person responsible for the
32 child's welfare has been abused by a family or household
33 member as defined by the Illinois Domestic Violence Act of
34 1986, the officer shall immediately use all reasonable means
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1 to prevent further abuse under Section 112A-30 of the Code of
2 Criminal Procedure of 1963.
3 (e) An order of protection under Section 111-8 of the
4 Code of Criminal Procedure of 1963 shall be sought in all
5 cases where there is reason to believe that a child has been
6 sexually abused by a family or household member. In
7 considering appropriate available remedies, it shall be
8 presumed that awarding physical care or custody to the abuser
9 is not in the child's best interest.
10 (f) A person may not be charged with the offense of
11 permitting sexual abuse of a child under this Section until
12 the person who committed the offense is charged with criminal
13 sexual assault, aggravated criminal sexual assault, predatory
14 criminal sexual assault of a child, criminal sexual abuse,
15 aggravated criminal sexual abuse, or prostitution.
16 (g) A person convicted of permitting the sexual abuse of
17 a child is guilty of a Class 4 felony. A second or
18 subsequent offense is a Class 2 felony, except that when the
19 sexual abuse involved sexual penetration causing bodily harm
20 to the child, it is a Class 1 felony. As a condition of any
21 sentence of supervision, probation, conditional discharge, or
22 mandatory supervised release, any person convicted under this
23 Section shall be ordered to undergo child sexual abuse,
24 domestic violence, or other appropriate counseling for a
25 specified duration with a qualified social or mental health
26 worker.
27 (h) It is an affirmative defense to a charge of
28 permitting sexual abuse of a child under this Section that
29 the person responsible for the child's welfare had a
30 reasonable apprehension that timely action to stop the abuse
31 or prostitution would result in the imminent infliction of
32 death, great bodily harm, permanent disfigurement, or
33 permanent disability to that person or another in retaliation
34 for reporting. A. A parent, step-parent, legal guardian, or
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1 other person having custody of a child who knowingly allows
2 or permits an act of criminal sexual abuse or criminal sexual
3 assault as defined in Section 12-13, 12-14, 12-14.1, 12-15 or
4 12-16 of the Criminal Code of 1961, upon his or her child, or
5 knowingly permits, induces, promotes, or arranges for the
6 child to engage in prostitution as defined in Section 11-14
7 of the Criminal Code of 1961, and fails to take reasonable
8 steps to prevent its commission or future occurrences of such
9 acts commits the offense of permitting the sexual abuse of a
10 child. For purposes of this Section, "child" means a minor
11 under the age of 17 years.
12 B. Any person convicted of permitting the sexual abuse
13 of a child is guilty of a Class 1 felony.
14 (Source: P.A. 91-696, eff. 4-13-00.)".