HB0701 Enrolled LRB094 05298 RLC 37185 b

1     AN ACT concerning 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 changing
5 Section 12-18 as follows:
 
6     (720 ILCS 5/12-18)  (from Ch. 38, par. 12-18)
7     Sec. 12-18. General Provisions.
8     (a) No person accused of violating Sections 12-13, 12-14,
9 12-15 or 12-16 of this Code shall be presumed to be incapable
10 of committing an offense prohibited by Sections 12-13, 12-14,
11 12-14.1, 12-15 or 12-16 of this Code because of age, physical
12 condition or relationship to the victim, except as otherwise
13 provided in subsection (c) of this Section. Nothing in this
14 Section shall be construed to modify or abrogate the
15 affirmative defense of infancy under Section 6-1 of this Code
16 or the provisions of Section 5-805 of the Juvenile Court Act of
17 1987.
18     (b) Any medical examination or procedure which is conducted
19 by a physician, nurse, medical or hospital personnel, parent,
20 or caretaker for purposes and in a manner consistent with
21 reasonable medical standards is not an offense under Sections
22 12-13, 12-14, 12-14.1, 12-15 and 12-16 of this Code.
23     (c) (Blank).
24     (d) (Blank). In addition to the sentences provided for in
25 Sections 12-13, 12-14, 12-14.1, 12-15 and 12-16 of the Criminal
26 Code of 1961 the Court may order any person who is convicted of
27 violating any of those Sections to meet all or any portion of
28 the financial obligations of treatment, including but not
29 limited to medical, psychiatric, rehabilitative or
30 psychological treatment, prescribed for the victim or victims
31 of the offense.
32     (e) After a finding at a preliminary hearing that there is

 

 

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1 probable cause to believe that an accused has committed a
2 violation of Section 12-13, 12-14, or 12-14.1 of this Code, or
3 after an indictment is returned charging an accused with a
4 violation of Section 12-13, 12-14, or 12-14.1 of this Code, or
5 after a finding that a defendant charged with a violation of
6 Section 12-13, 12-14, or 12-14.1 of this Code is unfit to stand
7 trial pursuant to Section 104-16 of the Code of Criminal
8 Procedure of 1963 where the finding is made prior to
9 preliminary hearing, at the request of the person who was the
10 victim of the violation of Section 12-13, 12-14, or 12-14.1,
11 the prosecuting State's attorney shall seek an order from the
12 court to compel the accused to be tested for any sexually
13 transmissible disease, including a test for infection with
14 human immunodeficiency virus (HIV). The medical tests shall be
15 performed only by appropriately licensed medical
16 practitioners. The test for infection with human
17 immunodeficiency virus (HIV) shall consist of an enzyme-linked
18 immunosorbent assay (ELISA) test, or such other test as may be
19 approved by the Illinois Department of Public Health; in the
20 event of a positive result, the Western Blot Assay or a more
21 reliable confirmatory test shall be administered. The results
22 of the tests shall be kept strictly confidential by all medical
23 personnel involved in the testing and must be personally
24 delivered in a sealed envelope to the victim and to the judge
25 who entered the order, for the judge's inspection in camera.
26 Acting in accordance with the best interests of the victim and
27 the public, the judge shall have the discretion to determine to
28 whom, if anyone, the result of the testing may be revealed;
29 however, in no case shall the identity of the victim be
30 disclosed. The court shall order that the cost of the tests
31 shall be paid by the county, and may be taxed as costs against
32 the accused if convicted.
33     (f) Whenever any law enforcement officer has reasonable
34 cause to believe that a person has been delivered a controlled
35 substance without his or her consent, the law enforcement
36 officer shall advise the victim about seeking medical treatment

 

 

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1 and preserving evidence.
2     (g) Every hospital providing emergency hospital services
3 to an alleged sexual assault survivor, when there is reasonable
4 cause to believe that a person has been delivered a controlled
5 substance without his or her consent, shall designate personnel
6 to provide:
7         (1) An explanation to the victim about the nature and
8     effects of commonly used controlled substances and how such
9     controlled substances are administered.
10         (2) An offer to the victim of testing for the presence
11     of such controlled substances.
12         (3) A disclosure to the victim that all controlled
13     substances or alcohol ingested by the victim will be
14     disclosed by the test.
15         (4) A statement that the test is completely voluntary.
16         (5) A form for written authorization for sample
17     analysis of all controlled substances and alcohol ingested
18     by the victim.
19     A physician licensed to practice medicine in all its
20 branches may agree to be a designated person under this
21 subsection.
22     No sample analysis may be performed unless the victim
23 returns a signed written authorization within 30 days after the
24 sample was collected.
25     Any medical treatment or care under this subsection shall
26 be only in accordance with the order of a physician licensed to
27 practice medicine in all of its branches. Any testing under
28 this subsection shall be only in accordance with the order of a
29 licensed individual authorized to order the testing.
30 (Source: P.A. 92-81, eff. 7-12-01; 93-958, eff. 8-20-04.)
 
31     Section 10. The Unified Code of Corrections is amended by
32 changing Section 5-5-6 as follows:
 
33     (730 ILCS 5/5-5-6)  (from Ch. 38, par. 1005-5-6)
34     Sec. 5-5-6. In all convictions for offenses in violation of

 

 

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1 the Criminal Code of 1961 in which the person received any
2 injury to their person or damage to their real or personal
3 property as a result of the criminal act of the defendant, the
4 court shall order restitution as provided in this Section. In
5 all other cases, except cases in which restitution is required
6 under this Section, the court must at the sentence hearing
7 determine whether restitution is an appropriate sentence to be
8 imposed on each defendant convicted of an offense. If the court
9 determines that an order directing the offender to make
10 restitution is appropriate, the offender may be sentenced to
11 make restitution. The court may consider restitution an
12 appropriate sentence to be imposed on each defendant convicted
13 of an offense in addition to a sentence of imprisonment. The
14 sentence of the defendant to a term of imprisonment is not a
15 mitigating factor that prevents the court from ordering the
16 defendant to pay restitution. If the offender is sentenced to
17 make restitution the Court shall determine the restitution as
18 hereinafter set forth:
19         (a) At the sentence hearing, the court shall determine
20     whether the property may be restored in kind to the
21     possession of the owner or the person entitled to
22     possession thereof; or whether the defendant is possessed
23     of sufficient skill to repair and restore property damaged;
24     or whether the defendant should be required to make
25     restitution in cash, for out-of-pocket expenses, damages,
26     losses, or injuries found to have been proximately caused
27     by the conduct of the defendant or another for whom the
28     defendant is legally accountable under the provisions of
29     Article V of the Criminal Code of 1961.
30         (b) In fixing the amount of restitution to be paid in
31     cash, the court shall allow credit for property returned in
32     kind, for property damages ordered to be repaired by the
33     defendant, and for property ordered to be restored by the
34     defendant; and after granting the credit, the court shall
35     assess the actual out-of-pocket expenses, losses, damages,
36     and injuries suffered by the victim named in the charge and

 

 

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1     any other victims who may also have suffered out-of-pocket
2     expenses, losses, damages, and injuries proximately caused
3     by the same criminal conduct of the defendant, and
4     insurance carriers who have indemnified the named victim or
5     other victims for the out-of-pocket expenses, losses,
6     damages, or injuries, provided that in no event shall
7     restitution be ordered to be paid on account of pain and
8     suffering. If a defendant is placed on supervision for, or
9     convicted of, domestic battery, the defendant shall be
10     required to pay restitution to any domestic violence
11     shelter in which the victim and any other family or
12     household members lived because of the domestic battery.
13     The amount of the restitution shall equal the actual
14     expenses of the domestic violence shelter in providing
15     housing and any other services for the victim and any other
16     family or household members living at the shelter. If a
17     defendant fails to pay restitution in the manner or within
18     the time period specified by the court, the court may enter
19     an order directing the sheriff to seize any real or
20     personal property of a defendant to the extent necessary to
21     satisfy the order of restitution and dispose of the
22     property by public sale. All proceeds from such sale in
23     excess of the amount of restitution plus court costs and
24     the costs of the sheriff in conducting the sale shall be
25     paid to the defendant. The defendant convicted of domestic
26     battery, if a person under 18 years of age who is the child
27     of the offender or of the victim was present and witnessed
28     the domestic battery of the victim, is liable to pay
29     restitution for the cost of any counseling required for the
30     child at the discretion of the court.
31         (c) In cases where more than one defendant is
32     accountable for the same criminal conduct that results in
33     out-of-pocket expenses, losses, damages, or injuries, each
34     defendant shall be ordered to pay restitution in the amount
35     of the total actual out-of-pocket expenses, losses,
36     damages, or injuries to the victim proximately caused by

 

 

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1     the conduct of all of the defendants who are legally
2     accountable for the offense.
3             (1) In no event shall the victim be entitled to
4         recover restitution in excess of the actual
5         out-of-pocket expenses, losses, damages, or injuries,
6         proximately caused by the conduct of all of the
7         defendants.
8             (2) As between the defendants, the court may
9         apportion the restitution that is payable in
10         proportion to each co-defendant's culpability in the
11         commission of the offense.
12             (3) In the absence of a specific order apportioning
13         the restitution, each defendant shall bear his pro rata
14         share of the restitution.
15             (4) As between the defendants, each defendant
16         shall be entitled to a pro rata reduction in the total
17         restitution required to be paid to the victim for
18         amounts of restitution actually paid by co-defendants,
19         and defendants who shall have paid more than their pro
20         rata share shall be entitled to refunds to be computed
21         by the court as additional amounts are paid by
22         co-defendants.
23         (d) In instances where a defendant has more than one
24     criminal charge pending against him in a single case, or
25     more than one case, and the defendant stands convicted of
26     one or more charges, a plea agreement negotiated by the
27     State's Attorney and the defendants may require the
28     defendant to make restitution to victims of charges that
29     have been dismissed or which it is contemplated will be
30     dismissed under the terms of the plea agreement, and under
31     the agreement, the court may impose a sentence of
32     restitution on the charge or charges of which the defendant
33     has been convicted that would require the defendant to make
34     restitution to victims of other offenses as provided in the
35     plea agreement.
36         (e) The court may require the defendant to apply the

 

 

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1     balance of the cash bond, after payment of court costs, and
2     any fine that may be imposed to the payment of restitution.
3         (f) Taking into consideration the ability of the
4     defendant to pay, including any real or personal property
5     or any other assets of the defendant, the court shall
6     determine whether restitution shall be paid in a single
7     payment or in installments, and shall fix a period of time
8     not in excess of 5 years or the period of time specified in
9     subsection (f-1), not including periods of incarceration,
10     within which payment of restitution is to be paid in full.
11     Complete restitution shall be paid in as short a time
12     period as possible. However, if the court deems it
13     necessary and in the best interest of the victim, the court
14     may extend beyond 5 years the period of time within which
15     the payment of restitution is to be paid. If the defendant
16     is ordered to pay restitution and the court orders that
17     restitution is to be paid over a period greater than 6
18     months, the court shall order that the defendant make
19     monthly payments; the court may waive this requirement of
20     monthly payments only if there is a specific finding of
21     good cause for waiver.
22         (f-1)(1) In addition to any other penalty prescribed by
23     law and any restitution ordered under this Section that did
24     not include long-term physical health care costs, the court
25     may, upon conviction of any misdemeanor or felony, order a
26     defendant to pay restitution to a victim in accordance with
27     the provisions of this subsection (f-1) if the victim has
28     suffered physical injury as a result of the offense that is
29     reasonably probable to require or has required long-term
30     physical health care for more than 3 months. As used in
31     this subsection (f-1) "long-term physical health care"
32     includes mental health care.
33         (2) The victim's estimate of long-term physical health
34     care costs may be made as part of a victim impact statement
35     under Section 6 of the Rights of Crime Victims and
36     Witnesses Act or made separately. The court shall enter the

 

 

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1     long-term physical health care restitution order at the
2     time of sentencing. An order of restitution made under this
3     subsection (f-1) shall fix a monthly amount to be paid by
4     the defendant for as long as long-term physical health care
5     of the victim is required as a result of the offense. The
6     order may exceed the length of any sentence imposed upon
7     the defendant for the criminal activity. The court shall
8     include as a special finding in the judgment of conviction
9     its determination of the monthly cost of long-term physical
10     health care.
11         (3) After a sentencing order has been entered, the
12     court may from time to time, on the petition of either the
13     defendant or the victim, or upon its own motion, enter an
14     order for restitution for long-term physical care or modify
15     the existing order for restitution for long-term physical
16     care as to the amount of monthly payments. Any modification
17     of the order shall be based only upon a substantial change
18     of circumstances relating to the cost of long-term physical
19     health care or the financial condition of either the
20     defendant or the victim. The petition shall be filed as
21     part of the original criminal docket.
22         (g) In addition to the sentences provided for in
23     Sections 11-19.2, 11-20.1, 12-13, 12-14, 12-14.1, 12-15,
24     and 12-16 of the Criminal Code of 1961, the court may order
25     any person who is convicted of violating any of those
26     Sections or who was charged with any of those offenses and
27     which charge was reduced to another charge as a result of a
28     plea agreement under subsection (d) of this Section to meet
29     all or any portion of the financial obligations of
30     treatment, including but not limited to medical,
31     psychiatric, or rehabilitative treatment or psychological
32     counseling, prescribed for the victim or victims of the
33     offense. The court shall, after determining that the
34     defendant has the ability to pay, require the defendant to
35     pay for the victim's counseling services if:
36             (1) the defendant was convicted of an offense under

 

 

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1         Sections 11-19.2, 11-20.1, 12-13, 12-14, 12-14.1,
2         12-15 or 12-16 of the Criminal Code of 1961, or was
3         charged with such an offense and the charge was reduced
4         to another charge as a result of a plea agreement under
5         subsection (d) of this Section, and
6             (2) the victim was under 18 years of age at the
7         time the offense was committed and requires counseling
8         as a result of the offense.
9         The payments shall be made by the defendant to the
10     clerk of the circuit court and transmitted by the clerk to
11     the appropriate person or agency as directed by the court.
12     Except as otherwise provided in subsection (f-1), the The
13     order may require such payments to be made for a period not
14     to exceed 5 years after sentencing, not including periods
15     of incarceration.
16         (h) The judge may enter an order of withholding to
17     collect the amount of restitution owed in accordance with
18     Part 8 of Article XII of the Code of Civil Procedure.
19         (i) A sentence of restitution may be modified or
20     revoked by the court if the offender commits another
21     offense, or the offender fails to make restitution as
22     ordered by the court, but no sentence to make restitution
23     shall be revoked unless the court shall find that the
24     offender has had the financial ability to make restitution,
25     and he has wilfully refused to do so. When the offender's
26     ability to pay restitution was established at the time an
27     order of restitution was entered or modified, or when the
28     offender's ability to pay was based on the offender's
29     willingness to make restitution as part of a plea agreement
30     made at the time the order of restitution was entered or
31     modified, there is a rebuttable presumption that the facts
32     and circumstances considered by the court at the hearing at
33     which the order of restitution was entered or modified
34     regarding the offender's ability or willingness to pay
35     restitution have not materially changed. If the court shall
36     find that the defendant has failed to make restitution and

 

 

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1     that the failure is not wilful, the court may impose an
2     additional period of time within which to make restitution.
3     The length of the additional period shall not be more than
4     2 years. The court shall retain all of the incidents of the
5     original sentence, including the authority to modify or
6     enlarge the conditions, and to revoke or further modify the
7     sentence if the conditions of payment are violated during
8     the additional period.
9         (j) The procedure upon the filing of a Petition to
10     Revoke a sentence to make restitution shall be the same as
11     the procedures set forth in Section 5-6-4 of this Code
12     governing violation, modification, or revocation of
13     Probation, of Conditional Discharge, or of Supervision.
14         (k) Nothing contained in this Section shall preclude
15     the right of any party to proceed in a civil action to
16     recover for any damages incurred due to the criminal
17     misconduct of the defendant.
18         (l) Restitution ordered under this Section shall not be
19     subject to disbursement by the circuit clerk under Section
20     27.5 of the Clerks of Courts Act.
21         (m) A restitution order under this Section is a
22     judgment lien in favor of the victim that:
23             (1) Attaches to the property of the person subject
24         to the order;
25             (2) May be perfected in the same manner as provided
26         in Part 3 of Article 9 of the Uniform Commercial Code;
27             (3) May be enforced to satisfy any payment that is
28         delinquent under the restitution order by the person in
29         whose favor the order is issued or the person's
30         assignee; and
31             (4) Expires in the same manner as a judgment lien
32         created in a civil proceeding.
33         When a restitution order is issued under this Section,
34     the issuing court shall send a certified copy of the order
35     to the clerk of the circuit court in the county where the
36     charge was filed. Upon receiving the order, the clerk shall

 

 

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1     enter and index the order in the circuit court judgment
2     docket.
3         (n) An order of restitution under this Section does not
4     bar a civil action for:
5             (1) Damages that the court did not require the
6         person to pay to the victim under the restitution order
7         but arise from an injury or property damages that is
8         the basis of restitution ordered by the court; and
9             (2) Other damages suffered by the victim.
10     The restitution order is not discharged by the completion
11 of the sentence imposed for the offense.
12     A restitution order under this Section is not discharged by
13 the liquidation of a person's estate by a receiver. A
14 restitution order under this Section may be enforced in the
15 same manner as judgment liens are enforced under Article XII of
16 the Code of Civil Procedure.
17     The provisions of Section 2-1303 of the Code of Civil
18 Procedure, providing for interest on judgments, apply to
19 judgments for restitution entered under this Section.
20 (Source: P.A. 91-153, eff. 1-1-00; 91-262, eff. 1-1-00; 91-420,
21 eff. 1-1-00; 92-16, eff. 6-28-01.)