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Public Act 094-0366 |
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Criminal Code of 1961 is amended by changing | ||||
Section 11-20.1 as follows:
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(720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
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Sec. 11-20.1. Child pornography.
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(a) A person commits the offense of child pornography who:
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(1) films, videotapes, photographs, or otherwise | ||||
depicts or portrays by
means of any similar visual medium | ||||
or reproduction or depicts by computer any
child whom he | ||||
knows or reasonably should know to be under the age of 18 | ||||
or any
severely or profoundly mentally retarded person | ||||
where such child or severely
or profoundly mentally | ||||
retarded person is:
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(i) actually or by simulation engaged in any act of | ||||
sexual
penetration or sexual conduct
with any person or | ||||
animal; or
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(ii) actually or by simulation engaged in any act | ||||
of sexual
penetration or sexual conduct
involving the | ||||
sex organs of the child or severely or
profoundly | ||||
mentally retarded person and the mouth, anus, or sex | ||||
organs of
another person or animal; or which involves | ||||
the mouth, anus or sex organs
of the child or severely | ||||
or profoundly mentally retarded
person and the sex | ||||
organs of another person or animal; or
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(iii) actually or by simulation engaged in any act | ||||
of masturbation; or
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(iv) actually or by simulation portrayed as being | ||||
the object of, or
otherwise engaged in, any act of lewd | ||||
fondling, touching, or caressing
involving another | ||||
person or animal; or
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(v) actually or by simulation engaged in any act of | ||
excretion or
urination within a sexual context; or
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(vi) actually or by simulation portrayed or | ||
depicted as bound, fettered,
or subject to sadistic, | ||
masochistic, or sadomasochistic abuse in any sexual
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context; or
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(vii) depicted or portrayed in any pose, posture or | ||
setting involving
a lewd exhibition of the unclothed or | ||
transparently clothed genitals, pubic area, buttocks, | ||
or, if
such person is female, a fully or partially | ||
developed breast of the child
or other person; or
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(2) with the knowledge of the nature or content | ||
thereof, reproduces,
disseminates, offers to disseminate, | ||
exhibits or possesses with intent to
disseminate any film, | ||
videotape, photograph or other similar visual
reproduction | ||
or depiction by computer of any child or severely or | ||
profoundly
mentally retarded person whom the person knows | ||
or reasonably should know to be
under the age of 18 or to | ||
be a severely or profoundly mentally retarded person,
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engaged in any activity described in subparagraphs (i) | ||
through (vii) of
paragraph (1) of this subsection; or
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(3) with knowledge of the subject matter or theme | ||
thereof, produces any
stage play, live performance, film, | ||
videotape or other similar visual
portrayal or depiction by | ||
computer which
includes a child whom the person knows or | ||
reasonably should
know to be under the age of 18 or a | ||
severely or
profoundly mentally retarded person engaged in | ||
any activity described in
subparagraphs (i) through (vii) | ||
of paragraph (1) of this subsection; or
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(4) solicits, uses, persuades, induces, entices, or | ||
coerces any child
whom he knows or reasonably should know | ||
to be under
the age of 18 or a severely or profoundly | ||
mentally
retarded person to appear in any stage play, live | ||
presentation, film,
videotape, photograph or other similar | ||
visual reproduction or depiction
by computer in which the
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child or severely or profoundly mentally retarded person
is |
or will be depicted, actually or by simulation, in any act, | ||
pose or
setting described in subparagraphs (i) through | ||
(vii) of paragraph (1) of
this subsection; or
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(5) is a parent, step-parent, legal guardian or other | ||
person having
care or custody
of a child whom the person | ||
knows or reasonably should know to be under
the age of 18 | ||
or a severely or profoundly mentally
retarded person and | ||
who knowingly permits, induces, promotes, or arranges
for | ||
such child or severely or profoundly mentally retarded
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person to appear in any stage play, live performance, film, | ||
videotape,
photograph or other similar visual | ||
presentation, portrayal or simulation or
depiction by | ||
computer of any act or activity described in subparagraphs | ||
(i)
through (vii) of paragraph (1) of this subsection; or
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(6) with knowledge of the nature or content thereof, | ||
possesses any film,
videotape, photograph or other similar | ||
visual reproduction or depiction by
computer of any child | ||
or severely or profoundly mentally retarded person
whom the | ||
person knows or reasonably should know to be under the age | ||
of 18
or to be a severely or profoundly mentally retarded
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person, engaged in any activity described in subparagraphs | ||
(i) through
(vii) of paragraph (1) of this subsection; or
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(7) solicits, uses, persuades, induces, entices, or | ||
coerces a person
to provide a child under the age of 18 or | ||
a severely or profoundly mentally
retarded person to appear | ||
in any videotape, photograph, film, stage play, live
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presentation, or other similar visual reproduction or | ||
depiction by computer
in which the child or severely or | ||
profoundly mentally retarded person will be
depicted, | ||
actually or by simulation, in any act, pose, or setting | ||
described in
subparagraphs (i) through (vii) of paragraph | ||
(1) of this subsection.
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(b) (1) It shall be an affirmative defense to a charge of | ||
child
pornography that the defendant reasonably believed, | ||
under all of the
circumstances, that the child was 18 years | ||
of age or older or that the
person was not a severely or |
profoundly mentally
retarded person but only where, prior | ||
to the act or acts giving rise to a
prosecution under this | ||
Section, he took some affirmative action or made a
bonafide | ||
inquiry designed to ascertain whether the child was 18 | ||
years of
age or older or that the person was not a severely | ||
or
profoundly mentally retarded person and his reliance | ||
upon the information
so obtained was clearly reasonable.
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(2) (Blank).
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(3) The charge of child pornography shall not apply to | ||
the performance
of official duties by law enforcement or | ||
prosecuting officers or persons employed by law | ||
enforcement or prosecuting agencies , court personnel
or | ||
attorneys, nor to bonafide treatment or professional | ||
education programs
conducted by licensed physicians, | ||
psychologists or social workers.
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(4) Possession by the defendant of more than one of the | ||
same film,
videotape or visual reproduction or depiction by | ||
computer in which child
pornography is depicted
shall raise | ||
a rebuttable presumption that the defendant possessed such
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materials with the intent to disseminate them.
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(5) The charge of child pornography does not apply to a | ||
person who does
not voluntarily possess a film, videotape, | ||
or visual reproduction or depiction
by computer in which | ||
child pornography is depicted. Possession is voluntary if
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the defendant knowingly procures or receives a film, | ||
videotape, or visual
reproduction or depiction for a | ||
sufficient time to be able to terminate his
or her | ||
possession.
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(c) Violation of paragraph (1), (4), (5), or (7) of | ||
subsection (a) is a
Class 1 felony with a mandatory minimum | ||
fine of $2,000 and a maximum fine of
$100,000. Violation of | ||
paragraph (3) of subsection (a) is a Class 1 felony
with a | ||
mandatory minimum fine of $1500 and a maximum fine of $100,000.
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Violation of paragraph (2) of subsection (a) is a Class 1 | ||
felony with a
mandatory minimum fine of $1000 and a maximum | ||
fine of $100,000. Violation of
paragraph (6) of subsection (a) |
is a Class 3 felony with a mandatory
minimum fine of $1000 and | ||
a maximum fine of $100,000.
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(d) If a person is convicted of a second or subsequent | ||
violation of
this Section within 10 years of a prior | ||
conviction, the court shall order a
presentence psychiatric | ||
examination of the person. The examiner shall report
to the | ||
court whether treatment of the person is necessary.
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(e) Any film, videotape, photograph or other similar visual | ||
reproduction
or depiction by computer which includes a child | ||
under the age of 18 or a
severely or profoundly mentally | ||
retarded person engaged in any activity
described in | ||
subparagraphs (i) through (vii) or paragraph 1 of subsection
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(a), and any material or equipment used or intended for use in | ||
photographing,
filming, printing, producing, reproducing, | ||
manufacturing, projecting,
exhibiting, depiction by computer, | ||
or disseminating such material shall be
seized and forfeited in | ||
the manner, method and procedure provided by Section
36-1 of | ||
this Code for the seizure and forfeiture of vessels, vehicles | ||
and
aircraft.
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(e-5) Upon the conclusion of a case brought under this | ||
Section, the court
shall seal all evidence depicting a victim | ||
or witness that is sexually
explicit. The evidence may be | ||
unsealed and viewed, on a motion of the party
seeking to unseal | ||
and view the evidence, only for good cause shown and in the
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discretion of the court. The motion must expressly set forth | ||
the purpose for
viewing the material. The State's attorney and | ||
the victim, if possible, shall
be provided reasonable notice of | ||
the hearing on the motion to unseal the
evidence. Any person | ||
entitled to notice of a hearing under this subsection
(e-5) may | ||
object to the motion.
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(f) Definitions. For the purposes of this Section:
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(1) "Disseminate" means (i) to sell, distribute, | ||
exchange or transfer
possession, whether with or without | ||
consideration or (ii) to make a depiction
by computer | ||
available for distribution or downloading through the | ||
facilities
of any telecommunications network or through |
any other means of transferring
computer programs or data | ||
to a computer.
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(2) "Produce" means to direct, promote, advertise, | ||
publish, manufacture,
issue, present or show.
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(3) "Reproduce" means to make a duplication or copy.
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(4) "Depict by computer" means to generate or create, | ||
or cause to be
created or generated, a computer program or | ||
data that, after being processed by
a computer either alone | ||
or in conjunction with one or more computer programs,
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results in a visual depiction on a computer monitor, | ||
screen, or display.
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(5) "Depiction by computer" means a computer program or | ||
data that, after
being processed by a computer either alone | ||
or in conjunction with one or more
computer programs, | ||
results in a visual depiction on a computer monitor, | ||
screen,
or display.
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(6) "Computer", "computer program", and "data" have | ||
the meanings
ascribed to them in Section 16D-2 of this | ||
Code.
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(7) "Child" includes a film, videotape, photograph, or | ||
other similar
visual medium or reproduction or depiction by | ||
computer that is, or appears to
be, that of a person, | ||
either in part, or in total, under the age of 18,
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regardless of the method by which the film, videotape, | ||
photograph, or other
similar visual medium or reproduction | ||
or depiction by computer is created,
adopted, or modified | ||
to appear as such. "Child" also includes a film,
videotape, | ||
photograph, or other similar visual medium or reproduction | ||
or
depiction by computer that is advertised, promoted, | ||
presented, described, or
distributed in such a manner that | ||
conveys the impression that the film,
videotape, | ||
photograph, or other similar visual medium or reproduction | ||
or
depiction by computer is of a person under the age of | ||
18.
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(8) "Sexual penetration" and "sexual conduct" have the | ||
meanings ascribed
to them in Section 12-12 of this Code.
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(g) Re-enactment; findings; purposes.
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(1) The General Assembly finds and declares that:
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(i) Section 50-5 of Public Act 88-680, effective | ||
January 1, 1995,
contained provisions amending the | ||
child pornography statute, Section 11-20.1
of the | ||
Criminal Code of 1961. Section 50-5 also contained | ||
other provisions.
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(ii) In addition, Public Act 88-680 was entitled | ||
"AN ACT to create a
Safe Neighborhoods Law". (A) | ||
Article 5 was entitled JUVENILE JUSTICE and
amended the | ||
Juvenile Court Act of 1987. (B) Article 15 was entitled | ||
GANGS and
amended various provisions of the Criminal | ||
Code of 1961 and the Unified Code
of Corrections. (C) | ||
Article 20 was entitled ALCOHOL ABUSE and amended | ||
various
provisions of the Illinois Vehicle Code. (D) | ||
Article 25 was entitled DRUG
ABUSE and amended the | ||
Cannabis Control Act and the Illinois Controlled
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Substances Act. (E) Article 30 was entitled FIREARMS | ||
and amended the Criminal
Code of 1961 and the Code of | ||
Criminal Procedure of 1963. (F) Article 35
amended the | ||
Criminal Code of 1961, the Rights of Crime Victims and | ||
Witnesses
Act, and the Unified Code of Corrections. (G) | ||
Article 40 amended the Criminal
Code of 1961 to | ||
increase the penalty for compelling organization | ||
membership of
persons. (H) Article 45 created the | ||
Secure Residential Youth Care Facility
Licensing Act | ||
and amended the State Finance Act, the Juvenile Court | ||
Act of
1987, the Unified Code of Corrections, and the | ||
Private Correctional Facility
Moratorium Act. (I) | ||
Article 50 amended the WIC Vendor Management Act, the
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Firearm Owners Identification Card Act, the Juvenile | ||
Court Act of 1987, the
Criminal Code of 1961, the | ||
Wrongs to Children Act, and the Unified Code of
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Corrections.
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(iii) On September 22, 1998, the Third District | ||
Appellate Court in
People v. Dainty, 701 N.E. 2d 118, |
ruled that Public Act 88-680 violates the
single | ||
subject clause of the Illinois Constitution (Article | ||
IV, Section 8 (d))
and was unconstitutional in its | ||
entirety. As of the time this amendatory Act
of 1999 | ||
was prepared, People v. Dainty was still subject to | ||
appeal.
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(iv) Child pornography is a vital concern to the | ||
people of this State
and the validity of future | ||
prosecutions under the child pornography statute of
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the Criminal Code of 1961 is in grave doubt.
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(2) It is the purpose of this amendatory Act of 1999 to | ||
prevent or
minimize any problems relating to prosecutions | ||
for child pornography that may
result from challenges to | ||
the constitutional validity of Public Act 88-680 by
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re-enacting the Section relating to child pornography that | ||
was included in
Public Act 88-680.
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(3) This amendatory Act of 1999 re-enacts Section | ||
11-20.1 of the
Criminal Code of 1961, as it has been | ||
amended. This re-enactment is intended
to remove any | ||
question as to the validity or content of that Section; it | ||
is not
intended to supersede any other Public Act that | ||
amends the text of the Section
as set forth in this | ||
amendatory Act of 1999. The material is shown as existing
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text (i.e., without underscoring) because, as of the time | ||
this amendatory Act
of 1999 was prepared, People v. Dainty | ||
was subject to appeal to the Illinois
Supreme Court.
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(4) The re-enactment by this amendatory Act of 1999 of | ||
Section 11-20.1 of
the Criminal Code of 1961 relating to | ||
child pornography that was amended by
Public Act 88-680 is | ||
not intended, and shall not be construed, to imply that
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Public Act 88-680 is invalid or to limit or impair any | ||
legal argument
concerning whether those provisions were | ||
substantially re-enacted by other
Public Acts.
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(Source: P.A. 91-54, eff. 6-30-99; 91-229, eff. 1-1-00; 91-357, | ||
eff.
7-29-99; 92-16, eff. 6-28-01; 92-434, eff. 1-1-02; 92-827, | ||
eff. 8-22-02.)
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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