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Public Act 097-0160 | ||||
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois, | ||||
represented in the General Assembly:
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Section 5. The Criminal Code of 1961 is amended by changing | ||||
Section 10-5 as follows:
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(720 ILCS 5/10-5) (from Ch. 38, par. 10-5)
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Sec. 10-5. Child abduction.
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(a) For purposes of this Section, the following terms have
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the following meanings:
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(1) "Child" means a person who, at the time the alleged | ||||
violation occurred, was under the age of 18 or
severely or | ||||
profoundly mentally retarded.
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(2) "Detains" means taking or retaining physical | ||||
custody of a child,
whether or not the child resists or | ||||
objects.
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(2.1) "Express consent" means oral or written | ||||
permission that is positive, direct, and unequivocal, | ||||
requiring no inference or implication to supply its | ||||
meaning. | ||||
(2.2) "Luring" means any knowing act to solicit, | ||||
entice, tempt, or attempt to attract the minor.
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(3) "Lawful custodian" means a person or persons | ||||
granted legal custody
of a child or entitled to physical |
possession of a child pursuant to a
court order. It is | ||
presumed that, when the parties have never been
married to | ||
each other, the mother has legal custody of the child | ||
unless a
valid court order states otherwise. If an | ||
adjudication of paternity has
been completed and the father | ||
has been assigned support obligations or
visitation | ||
rights, such a paternity order should, for the purposes of | ||
this
Section, be considered a valid court order granting | ||
custody to the mother.
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(4) "Putative father" means a man who has a reasonable | ||
belief that he is the father of a child born of a woman who | ||
is not his wife. | ||
(5) "Unlawful purpose" means any misdemeanor or felony | ||
violation of State law or a similar federal or sister state | ||
law or local ordinance. | ||
(b) A person commits the offense of child abduction when he | ||
or she does any one of the following:
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(1) Intentionally violates any terms of a valid court | ||
order granting
sole or joint custody, care, or possession | ||
to another by concealing or
detaining the child or removing | ||
the child from the jurisdiction of the
court.
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(2) Intentionally violates a court order prohibiting | ||
the person from
concealing or detaining the child or | ||
removing the child
from the jurisdiction of the court.
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(3) Intentionally conceals, detains, or removes the | ||
child without the
consent of the mother or lawful custodian |
of the child if the person is a
putative father and either: | ||
(A) the paternity of the child has not been
legally | ||
established or (B) the paternity of the child has been | ||
legally
established but no orders relating to custody have | ||
been entered. Notwithstanding the presumption created by | ||
paragraph (3) of subsection (a),
however, a mother commits | ||
child abduction when she intentionally conceals or removes
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a child, whom she has abandoned or relinquished custody of, | ||
from an
unadjudicated father who has provided sole ongoing | ||
care and custody of the
child in her absence.
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(4) Intentionally conceals or removes the child from a | ||
parent after
filing a petition or being served with process | ||
in an action affecting
marriage or paternity but prior to | ||
the issuance of a temporary or final
order determining | ||
custody.
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(5) At the expiration of visitation rights outside the | ||
State,
intentionally fails or refuses to return or impedes | ||
the return of the child
to the lawful custodian in | ||
Illinois.
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(6) Being a parent of the child, and if the parents of | ||
that child
are or have been married and there has been no | ||
court order of custody,
knowingly conceals the child for 15 | ||
days, and fails to make reasonable attempts
within the | ||
15-day period to notify the other parent as to the specific
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whereabouts of the child, including a means by which to | ||
contact the child,
or to arrange reasonable visitation or |
contact with the child. It is not a
violation of this | ||
Section for a person fleeing domestic violence to take
the | ||
child with him or her to housing provided by a domestic | ||
violence program.
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(7) Being a parent of the child, and if the parents of | ||
the child
are or have been married and there has been no | ||
court order of
custody, knowingly conceals, detains, or | ||
removes the child with physical force or
threat of physical | ||
force.
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(8) Knowingly conceals, detains, or removes the child | ||
for payment or promise of
payment at the instruction of a | ||
person who has no legal right to custody.
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(9) Knowingly retains in this State for 30 days a child | ||
removed from another state
without the consent of the | ||
lawful custodian or in violation of a valid
court order of | ||
custody.
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(10) Intentionally lures or attempts to lure a child | ||
under the age of 16
into a motor vehicle, building, | ||
housetrailer, or dwelling place without the
consent of the | ||
child's parent or lawful custodian for other than a lawful | ||
purpose. For the purposes of this item (10), the trier of | ||
fact may infer that luring
or attempted luring of a child | ||
under the age of 16 into a motor vehicle,
building, | ||
housetrailer, or dwelling place without the express | ||
consent of the child's parent
or lawful custodian or with | ||
the intent to avoid the express consent of the child's |
parent or lawful custodian was for is prima facie evidence | ||
of other
than a lawful purpose.
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(11) With the intent to obstruct or prevent efforts to | ||
locate the child victim of a child abduction, knowingly | ||
destroys, alters, conceals, or disguises physical evidence | ||
or furnishes false information. | ||
(c) It is an affirmative defense to subsections (b)(1) | ||
through (b)(10) of this Section that:
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(1) the person had custody of the child pursuant to a | ||
court order
granting legal custody or visitation rights | ||
that existed at the time of
the alleged violation;
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(2) the person had physical custody of the child | ||
pursuant to a court
order granting legal custody or | ||
visitation rights and failed to return the
child as a | ||
result of circumstances beyond his or her control, and the
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person notified and disclosed to the other parent or legal | ||
custodian the
specific whereabouts of the child and a means | ||
by which the child could be
contacted or made a reasonable | ||
attempt to notify the other parent or lawful
custodian of | ||
the child of those circumstances and made the disclosure
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within 24 hours after the visitation period had expired and | ||
returned the
child as soon as possible;
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(3) the person was fleeing an incidence or pattern of | ||
domestic violence; or
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(4) the person lured or attempted to lure a child under | ||
the age of 16
into a motor vehicle, building, housetrailer, |
or dwelling place for a
lawful purpose in prosecutions | ||
under paragraph (10) of subsection (b).
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(d) A person convicted of child abduction under this | ||
Section is guilty of
a Class 4 felony. A person convicted of | ||
child abduction under subsection (b)(10) shall undergo a sex | ||
offender evaluation prior to a sentence being imposed. A person | ||
convicted of a second or subsequent violation of
paragraph (10) | ||
of subsection (b) of this Section is guilty of a Class 3
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felony. A person convicted of child abduction under subsection | ||
(b)(10) when the person has a prior conviction of a sex offense | ||
as defined in the Sex Offender Registration Act or any | ||
substantially similar federal, Uniform Code of Military | ||
Justice, sister state, or foreign government offense is guilty | ||
of a Class 2 felony. It is a factor in aggravation under | ||
subsections (b)(1) through (b)(10) of this Section for which a | ||
court
may impose a more severe sentence under Section 5-8-1 | ||
(730 ILCS 5/5-8-1) or Article 4.5 of Chapter V of the Unified | ||
Code
of Corrections if, upon sentencing, the court finds | ||
evidence of any of the
following aggravating factors:
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(1) that the defendant abused or neglected the child | ||
following the
concealment, detention, or removal of the | ||
child;
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(2) that the defendant inflicted or threatened to | ||
inflict physical harm
on a parent or lawful custodian of | ||
the child or on the child with intent to
cause that parent | ||
or lawful custodian to discontinue criminal prosecution
of |
the defendant under this Section;
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(3) that the defendant demanded payment in exchange for | ||
return of the
child or demanded that he or she be relieved | ||
of the financial or legal
obligation to support the child | ||
in exchange for return of the child;
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(4) that the defendant has previously been convicted of | ||
child abduction;
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(5) that the defendant committed the abduction while | ||
armed with a deadly
weapon or the taking of the child | ||
resulted in serious bodily injury to
another; or
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(6) that the defendant committed the abduction while in | ||
a school,
regardless of the time of day or time of year; in | ||
a playground; on any
conveyance owned,
leased, or | ||
contracted by a school to transport students to or from | ||
school or a
school related activity; on the real property | ||
of a school;
or on a
public way within 1,000 feet of the | ||
real property comprising any school or
playground. For | ||
purposes of this paragraph (6), "playground" means a piece
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of land owned or controlled by a unit of local government | ||
that is designated by
the unit of local government for use | ||
solely or primarily for children's
recreation;
and | ||
"school" means a public or private
elementary or secondary | ||
school, community college, college, or university.
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(e) The court may order the child to be returned to the | ||
parent or lawful
custodian from whom the child was concealed, | ||
detained, or removed. In
addition to any sentence imposed, the |
court may assess any reasonable
expense incurred in searching | ||
for or returning the child against any
person convicted of | ||
violating this Section.
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(f) Nothing contained in this Section shall be construed to | ||
limit the
court's contempt power.
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(g) Every law enforcement officer investigating an alleged | ||
incident of
child abduction shall make a written police report | ||
of any bona fide
allegation and the disposition of that | ||
investigation. Every police report
completed pursuant to this | ||
Section shall be compiled and recorded within
the meaning of | ||
Section 5.1 of the Criminal Identification Act.
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(h) Whenever a law enforcement officer has reasons to | ||
believe a child
abduction has occurred, she or he shall provide | ||
the lawful custodian a summary of
her or his rights under this | ||
Code, including the procedures and relief
available to her or | ||
him.
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(i) If during the course of an investigation under this
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Section the child is found in the physical custody of the | ||
defendant or
another, the law enforcement officer shall return | ||
the child to the parent
or lawful custodian from whom the child | ||
was concealed, detained, or removed,
unless there is good cause | ||
for the law enforcement officer or the
Department of Children | ||
and Family Services to retain temporary protective
custody of | ||
the child pursuant to the Abused and Neglected Child Reporting
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Act.
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(Source: P.A. 95-1052, eff. 7-1-09; 96-710, eff. 1-1-10; |
96-1000, eff. 7-2-10.)
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