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Public Act 094-0366
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| HB1173 Enrolled |
LRB094 05102 RLC 35141 b |
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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 |
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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 |
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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) |
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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 |
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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, |
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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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