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92_HB5680eng HB5680 Engrossed LRB9212177RCcdA 1 AN ACT in relation to criminal law. 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 Sections 11-20-1 and 33D-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 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 19intercoursewith any person or animal; or 20 (ii) actually or by simulation engaged in any 21 act of sexual penetration or sexual conductcontact22 involving the sex organs of the child or 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 severely or profoundly mentally retarded 27 person and the sex organs of another person or 28 animal; or 29 (iii) actually or by simulation engaged in any 30 act of masturbation; or 31 (iv) actually or by simulation portrayed as HB5680 Engrossed -2- LRB9212177RCcdA 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 severely or profoundly mentally retarded person whom the 22 person knows or reasonably should know to be under the 23 age of 18 or to be a severely or profoundly mentally 24 retarded person, engaged in any activity described in 25 subparagraphs (i) through (vii) of paragraph (1) of this 26 subsection; or 27 (3) with knowledge of the subject matter or theme 28 thereof, produces any stage play, live performance, film, 29 videotape or other similar visual portrayal or depiction 30 by computer which includes a child whom the person knows 31 or reasonably should know to be under the age of 18 or a 32 severely or profoundly mentally retarded person engaged 33 in any activity described in subparagraphs (i) through 34 (vii) of paragraph (1) of this subsection; or HB5680 Engrossed -3- LRB9212177RCcdA 1 (4) solicits, uses, persuades, induces, entices, or 2 coerces any child whom he knows or reasonably should know 3 to be under the age of 18 or a severely or profoundly 4 mentally retarded person to appear in any stage play, 5 live presentation, film, videotape, photograph or other 6 similar visual reproduction or depiction by computer in 7 which the child or severely or profoundly mentally 8 retarded person is or will be depicted, actually or by 9 simulation, in any act, pose or setting described in 10 subparagraphs (i) through (vii) of paragraph (1) of this 11 subsection; or 12 (5) is a parent, step-parent, legal guardian or 13 other person having care or custody of a child whom the 14 person knows or reasonably should know to be under the 15 age of 18 or a severely or profoundly mentally retarded 16 person and who knowingly permits, induces, promotes, or 17 arranges for such child or severely or profoundly 18 mentally retarded person to appear in any stage play, 19 live performance, film, videotape, photograph or other 20 similar visual presentation, portrayal or simulation or 21 depiction by computer of any act or activity described in 22 subparagraphs (i) through (vii) of paragraph (1) of this 23 subsection; or 24 (6) with knowledge of the nature or content 25 thereof, possesses any film, videotape, photograph or 26 other similar visual reproduction or depiction by 27 computer of any child or severely or profoundly mentally 28 retarded person whom the person knows or reasonably 29 should know to be under the age of 18 or to be a severely 30 or profoundly mentally retarded person, engaged in any 31 activity described in subparagraphs (i) through (vii) of 32 paragraph (1) of this subsection; or 33 (7) solicits, uses, persuades, induces, entices, or 34 coerces a person to provide a child under the age of 18 HB5680 Engrossed -4- LRB9212177RCcdA 1 or a severely or profoundly mentally retarded person to 2 appear in any videotape, photograph, film, stage play, 3 live presentation, or other similar visual reproduction 4 or depiction by computer in which the child or severely 5 or profoundly mentally retarded person will be depicted, 6 actually or by simulation, in any act, pose, or setting 7 described in subparagraphs (i) through (vii) of paragraph 8 (1) of this subsection. 9 (b) (1) It shall be an affirmative defense to a charge 10 of child pornography that the defendant reasonably believed, 11 under all of the circumstances, that the child was 18 years 12 of age or older or that the person was not a severely or 13 profoundly mentally retarded person but only where, prior to 14 the act or acts giving rise to a prosecution under this 15 Section, he took some affirmative action or made a bonafide 16 inquiry designed to ascertain whether the child was 18 years 17 of age or older or that the person was not a severely or 18 profoundly mentally retarded person and his reliance upon the 19 information so obtained was clearly reasonable. 20 (2) (Blank). 21 (3) The charge of child pornography shall not apply 22 to the performance of official duties by law enforcement 23 or prosecuting officers, court personnel or attorneys, 24 nor to bonafide treatment or professional education 25 programs conducted by licensed physicians, psychologists 26 or social workers. 27 (4) Possession by the defendant of more than one of 28 the same film, videotape or visual reproduction or 29 depiction by computer in which child pornography is 30 depicted shall raise a rebuttable presumption that the 31 defendant possessed such materials with the intent to 32 disseminate them. 33 (5) The charge of child pornography does not apply 34 to a person who does not voluntarily possess a film, HB5680 Engrossed -5- LRB9212177RCcdA 1 videotape, or visual reproduction or depiction by 2 computer in which child pornography is depicted. 3 Possession is voluntary if the defendant knowingly 4 procures or receives a film, videotape, or visual 5 reproduction or depiction for a sufficient time to be 6 able to terminate his or her possession. 7 (c) Violation of paragraph (1), (4), (5), or (7) of 8 subsection (a) is a Class 1 felony with a mandatory minimum 9 fine of $2,000 and a maximum fine of $100,000. Violation of 10 paragraph (3) of subsection (a) is a Class 1 felony with a 11 mandatory minimum fine of $1500 and a maximum fine of 12 $100,000. Violation of paragraph (2) of subsection (a) is a 13 Class 1 felony with a mandatory minimum fine of $1000 and a 14 maximum fine of $100,000. Violation of paragraph (6) of 15 subsection (a) is a Class 3 felony with a mandatory minimum 16 fine of $1000 and a maximum fine of $100,000. 17 (d) If a person is convicted of a second or subsequent 18 violation of this Section within 10 years of a prior 19 conviction, the court shall order a presentence psychiatric 20 examination of the person. The examiner shall report to the 21 court whether treatment of the person is necessary. 22 (e) Any film, videotape, photograph or other similar 23 visual reproduction or depiction by computer which includes a 24 child under the age of 18 or a severely or profoundly 25 mentally retarded person engaged in any activity described in 26 subparagraphs (i) through (vii) or paragraph 1 of subsection 27 (a), and any material or equipment used or intended for use 28 in photographing, filming, printing, producing, reproducing, 29 manufacturing, projecting, exhibiting, depiction by computer, 30 or disseminating such material shall be seized and forfeited 31 in the manner, method and procedure provided by Section 36-1 32 of this Code for the seizure and forfeiture of vessels, 33 vehicles and aircraft. 34 (e-5) Upon the conclusion of a case brought under this HB5680 Engrossed -6- LRB9212177RCcdA 1 Section, the court shall seal all evidence depicting a victim 2 or witness that is sexually explicit. The evidence may be 3 unsealed and viewed, on a motion of the party seeking to 4 unseal and view the evidence, only for good cause shown and 5 in the discretion of the court. The motion must expressly 6 set forth the purpose for viewing the material. The State's 7 attorney and the victim, if possible, shall be provided 8 reasonable notice of the hearing on the motion to unseal the 9 evidence. Any person entitled to notice of a hearing under 10 this subsection (e-5) may object to the motion. 11 (f) Definitions. For the purposes of this Section: 12 (1) "Disseminate" means (i) to sell, distribute, 13 exchange or transfer possession, whether with or without 14 consideration or (ii) to make a depiction by computer 15 available for distribution or downloading through the 16 facilities of any telecommunications network or through 17 any other means of transferring computer programs or data 18 to a computer; 19 (2) "Produce" means to direct, promote, advertise, 20 publish, manufacture, issue, present or show; 21 (3) "Reproduce" means to make a duplication or 22 copy; 23 (4) "Depict by computer" means to generate or 24 create, or cause to be created or generated, a computer 25 program or data that, after being processed by a computer 26 either alone or in conjunction with one or more computer 27 programs, results in a visual depiction on a computer 28 monitor, screen, or display. 29 (5) "Depiction by computer" means a computer 30 program or data that, after being processed by a computer 31 either alone or in conjunction with one or more computer 32 programs, results in a visual depiction on a computer 33 monitor, screen, or display. 34 (6) "Computer", "computer program", and "data" have HB5680 Engrossed -7- LRB9212177RCcdA 1 the meanings ascribed to them in Section 16D-2 of this 2 Code. 3 (7) "Child" includes a film, videotape, photograph, 4 or other similar visual medium or reproduction or 5 depiction by computer that is, or appears to be, that of 6 a person, either in part, or in total, under the age of 7 18, regardless of the method by which the film, 8 videotape, photograph, or other similar visual medium or 9 reproduction or depiction by computer is created, 10 adopted, or modified to appear as such. "Child" also 11 includes a film, videotape, photograph, or other similar 12 visual medium or reproduction or depiction by computer 13 that is advertised, promoted, presented, described, or 14 distributed in such a manner that conveys the impression 15 that the film, videotape, photograph, or other similar 16 visual medium or reproduction or depiction by computer is 17 of a person under the age of 18. 18 (8) "Sexual penetration" and "sexual conduct" have 19 the meanings ascribed to them in Section 12-12 of this 20 Code. 21 (g) Re-enactment; findings; purposes. 22 (1) The General Assembly finds and declares that: 23 (i) Section 50-5 of Public Act 88-680, 24 effective January 1, 1995, contained provisions 25 amending the child pornography statute, Section 26 11-20.1 of the Criminal Code of 1961. Section 50-5 27 also contained other provisions. 28 (ii) In addition, Public Act 88-680 was 29 entitled "AN ACT to create a Safe Neighborhoods 30 Law". (A) Article 5 was entitled JUVENILE JUSTICE 31 and amended the Juvenile Court Act of 1987. (B) 32 Article 15 was entitled GANGS and amended various 33 provisions of the Criminal Code of 1961 and the 34 Unified Code of Corrections. (C) Article 20 was HB5680 Engrossed -8- LRB9212177RCcdA 1 entitled ALCOHOL ABUSE and amended various 2 provisions of the Illinois Vehicle Code. (D) 3 Article 25 was entitled DRUG ABUSE and amended the 4 Cannabis Control Act and the Illinois Controlled 5 Substances Act. (E) Article 30 was entitled FIREARMS 6 and amended the Criminal Code of 1961 and the Code 7 of Criminal Procedure of 1963. (F) Article 35 8 amended the Criminal Code of 1961, the Rights of 9 Crime Victims and Witnesses Act, and the Unified 10 Code of Corrections. (G) Article 40 amended the 11 Criminal Code of 1961 to increase the penalty for 12 compelling organization membership of persons. (H) 13 Article 45 created the Secure Residential Youth Care 14 Facility Licensing Act and amended the State Finance 15 Act, the Juvenile Court Act of 1987, the Unified 16 Code of Corrections, and the Private Correctional 17 Facility Moratorium Act. (I) Article 50 amended the 18 WIC Vendor Management Act, the Firearm Owners 19 Identification Card Act, the Juvenile Court Act of 20 1987, the Criminal Code of 1961, the Wrongs to 21 Children Act, and the Unified Code of Corrections. 22 (iii) On September 22, 1998, the Third 23 District Appellate Court in People v. Dainty, 701 24 N.E. 2d 118, ruled that Public Act 88-680 violates 25 the single subject clause of the Illinois 26 Constitution (Article IV, Section 8 (d)) and was 27 unconstitutional in its entirety. As of the time 28 this amendatory Act of 1999 was prepared, People v. 29 Dainty was still subject to appeal. 30 (iv) Child pornography is a vital concern to 31 the people of this State and the validity of future 32 prosecutions under the child pornography statute of 33 the Criminal Code of 1961 is in grave doubt. 34 (2) It is the purpose of this amendatory Act of HB5680 Engrossed -9- LRB9212177RCcdA 1 1999 to prevent or minimize any problems relating to 2 prosecutions for child pornography that may result from 3 challenges to the constitutional validity of Public Act 4 88-680 by re-enacting the Section relating to child 5 pornography that was included in Public Act 88-680. 6 (3) This amendatory Act of 1999 re-enacts Section 7 11-20.1 of the Criminal Code of 1961, as it has been 8 amended. This re-enactment is intended to remove any 9 question as to the validity or content of that Section; 10 it is not intended to supersede any other Public Act that 11 amends the text of the Section as set forth in this 12 amendatory Act of 1999. The material is shown as 13 existing text (i.e., without underscoring) because, as 14 of the time this amendatory Act of 1999 was prepared, 15 People v. Dainty was subject to appeal to the Illinois 16 Supreme Court. 17 (4) The re-enactment by this amendatory Act of 1999 18 of Section 11-20.1 of the Criminal Code of 1961 relating 19 to child pornography that was amended by Public Act 20 88-680 is not intended, and shall not be construed, to 21 imply that Public Act 88-680 is invalid or to limit or 22 impair any legal argument concerning whether those 23 provisions were substantially re-enacted by other Public 24 Acts. 25 (Source: P.A. 91-54, eff. 6-30-99; 91-229, eff. 1-1-00; 26 91-357, eff. 7-29-99; 92-16, eff. 6-28-01; 92-434, eff. 27 1-1-02.) 28 (720 ILCS 5/33D-1) (from Ch. 38, par. 33D-1) 29 Sec. 33D-1. (a) Contributing to the criminal delinquency 30 of a juvenile. Any person of the age of 1721years and 31 upwards, who with the intent to promote or facilitate the 32 commission of an offense that is either a felony or 33 misdemeanor, solicits, compels or directs any person under HB5680 Engrossed -10- LRB9212177RCcdA 1 the age of 17 years in the commission of the offense commits 2 the offense of contributing to the criminal delinquency of a 3 juvenile. 4 (b) Sentence. Contributing to the criminal delinquency 5 of a juvenile is a felony one grade higher than the offense 6 committed, if the offense committed is a felony, except when 7 the offense committed is first degree murder or a Class X 8 felony. When the offense committed is first degree murder or 9 a Class X felony, the penalty for contributing to the 10 criminal delinquency of a juvenile is the same as the penalty 11 for first degree murder or a Class X felony, respectively. 12 Contributing to the criminal delinquency of a juvenile is a 13 misdemeanor one grade higher than the offense committed, if 14 the offense committed is a misdemeanor, except when the 15 offense committed is a Class A misdemeanor. If the offense 16 committed is a Class A misdemeanor, the penalty for 17 contributing to the criminal delinquency of a juvenile is a 18 Class 4 felony. 19 (Source: P.A. 91-337, eff. 1-1-00.) 20 Section 10. The Wrongs to Children Act is amended by 21 changing Section 5.1 as follows: 22 (720 ILCS 150/5.1) (from Ch. 23, par. 2355.1) 23 Sec. 5.1. Permitting sexual abuse of a child. 24 (a) A person responsible for a child's welfare commits 25 the offense of permitting sexual abuse of a child if he or 26 she knowingly permits or allows an act of sexual abuse upon 27 the child, or knowingly permits or allows the child to engage 28 in prostitution as defined in Section 11-14 of the Criminal 29 Code of 1961. 30 (b) In this Section: 31 "Child" means a minor under the age of 17 years. 32 "Person responsible for the child's welfare" means the HB5680 Engrossed -11- LRB9212177RCcdA 1 child's parent, step-parent, guardian, foster parent, or a 2 person over 17 years of age who is responsible for the 3 child's care at the time of the alleged sexual abuse. 4 "Sexual abuse" includes criminal sexual abuse or criminal 5 sexual assault as defined in Section 12-13, 12-14, 12-14.1, 6 12-15, or 12-16 of the Criminal Code of 1961. 7 (c) This Section does not apply to a person responsible 8 for the child's welfare who, having reason to believe that 9 sexual abuse has occurred, makes timely and reasonable 10 efforts to stop the sexual abuse by reporting the sexual 11 abuse in conformance with the Abused and Neglected Child 12 Reporting Act or by reporting the sexual abuse, or causing a 13 report to be made, to medical or law enforcement authorities. 14 (d) A person convicted of permitting the sexual abuse of 15 a child is guilty of a Class 4 felony. A second or 16 subsequent offense is a Class 2 felony, except that when the 17 sexual abuse involved sexual penetration causing bodily harm 18 to the child, it is a Class 1 felony. As a condition of any 19 sentence of supervision, probation, conditional discharge, or 20 mandatory supervised release, any person convicted under this 21 Section shall be ordered to undergo child sexual abuse, 22 domestic violence, or other appropriate training or 23 counseling for a specified duration, with a qualified social 24 or mental health worker.A. A parent, step-parent, legal25guardian, or other person having custody of a child who26knowingly allows or permits an act of criminal sexual abuse27or criminal sexual assault as defined in Section 12-13,2812-14, 12-14.1, 12-15 or 12-16 of the Criminal Code of 1961,29upon his or her child, or knowingly permits, induces,30promotes, or arranges for the child to engage in prostitution31as defined in Section 11-14 of the Criminal Code of 1961, and32fails to take reasonable steps to prevent its commission or33future occurrences of such acts commits the offense of34permitting the sexual abuse of a child. For purposes of thisHB5680 Engrossed -12- LRB9212177RCcdA 1Section, "child" means a minor under the age of 17 years.2B. Any person convicted of permitting the sexual abuse3of a child is guilty of a Class 1 felony.4 (Source: P.A. 91-696, eff. 4-13-00.) 5 Section 99. Effective date. This Act takes effect upon 6 becoming law.