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Full Text of HB2585  97th General Assembly

HB2585eng 97TH GENERAL ASSEMBLY



 


 
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1    AN ACT concerning corrections.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 1961 is amended by changing
5Section 11-20.1 as follows:
 
6    (720 ILCS 5/11-20.1)  (from Ch. 38, par. 11-20.1)
7    (Text of Section after amendment by P.A. 96-1551)
8    Sec. 11-20.1. Child pornography.
9    (a) A person commits child pornography 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 or
13    she knows or reasonably should know to be under the age of
14    18 and at least 13 years of age or any severely or
15    profoundly mentally retarded person where such child or
16    severely or profoundly mentally retarded person is:
17            (i) actually or by simulation engaged in any act of
18        sexual penetration or sexual conduct with any person or
19        animal; or
20            (ii) actually or by simulation engaged in any act
21        of sexual penetration or sexual conduct involving the
22        sex organs of the child or severely or profoundly
23        mentally retarded person and the mouth, anus, or sex

 

 

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1        organs of another person or animal; or which involves
2        the mouth, anus or sex organs of the child or severely
3        or profoundly mentally retarded person and the sex
4        organs of another person or animal; or
5            (iii) actually or by simulation engaged in any act
6        of masturbation; or
7            (iv) actually or by simulation portrayed as being
8        the object of, or otherwise engaged in, any act of lewd
9        fondling, touching, or caressing involving another
10        person or animal; or
11            (v) actually or by simulation engaged in any act of
12        excretion or urination within a sexual context; or
13            (vi) actually or by simulation portrayed or
14        depicted as bound, fettered, or subject to sadistic,
15        masochistic, or sadomasochistic abuse in any sexual
16        context; or
17            (vii) depicted or portrayed in any pose, posture or
18        setting involving a lewd exhibition of the unclothed or
19        transparently clothed genitals, pubic area, buttocks,
20        or, if such person is female, a fully or partially
21        developed breast of the child or other person; or
22        (2) with the knowledge of the nature or content
23    thereof, reproduces, disseminates, offers to disseminate,
24    exhibits or possesses with intent to disseminate any film,
25    videotape, photograph or other similar visual reproduction
26    or depiction by computer of any child or severely or

 

 

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1    profoundly mentally retarded person whom the person knows
2    or reasonably should know to be under the age of 18 and at
3    least 13 years of age or to be a severely or profoundly
4    mentally retarded person, engaged in any activity
5    described in subparagraphs (i) through (vii) of paragraph
6    (1) of this subsection; or
7        (3) with knowledge of the subject matter or theme
8    thereof, produces any stage play, live performance, film,
9    videotape or other similar visual portrayal or depiction by
10    computer which includes a child whom the person knows or
11    reasonably should know to be under the age of 18 and at
12    least 13 years of age or a severely or profoundly mentally
13    retarded person engaged in any activity described in
14    subparagraphs (i) through (vii) of paragraph (1) of this
15    subsection; or
16        (4) solicits, uses, persuades, induces, entices, or
17    coerces any child whom he or she knows or reasonably should
18    know to be under the age of 18 and at least 13 years of age
19    or a severely or profoundly mentally retarded person to
20    appear in any stage play, live presentation, film,
21    videotape, photograph or other similar visual reproduction
22    or depiction by computer in which the child or severely or
23    profoundly mentally retarded person is or will be depicted,
24    actually or by simulation, in any act, pose or setting
25    described in subparagraphs (i) through (vii) of paragraph
26    (1) of this subsection; or

 

 

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1        (5) is a parent, step-parent, legal guardian or other
2    person having care or custody of a child whom the person
3    knows or reasonably should know to be under the age of 18
4    and at least 13 years of age or a severely or profoundly
5    mentally retarded person and who knowingly permits,
6    induces, promotes, or arranges for such child or severely
7    or profoundly mentally retarded person to appear in any
8    stage play, live performance, film, videotape, photograph
9    or other similar visual presentation, portrayal or
10    simulation or depiction by computer of any act or activity
11    described in subparagraphs (i) through (vii) of paragraph
12    (1) of this subsection; or
13        (6) with knowledge of the nature or content thereof,
14    possesses any film, videotape, photograph or other similar
15    visual reproduction or depiction by computer of any child
16    or severely or profoundly mentally retarded person whom the
17    person knows or reasonably should know to be under the age
18    of 18 and at least 13 years of age or to be a severely or
19    profoundly mentally retarded person, engaged in any
20    activity described in subparagraphs (i) through (vii) of
21    paragraph (1) of this subsection; or
22        (7) solicits, or knowingly uses, persuades, induces,
23    entices, or coerces, a person to provide a child under the
24    age of 18 and at least 13 years of age or a severely or
25    profoundly mentally retarded person to appear in any
26    videotape, photograph, film, stage play, live

 

 

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1    presentation, or other similar visual reproduction or
2    depiction by computer in which the child or severely or
3    profoundly mentally retarded person will be depicted,
4    actually or by simulation, in any act, pose, or setting
5    described in subparagraphs (i) through (vii) of paragraph
6    (1) of this subsection.
7    (b) (1) It shall be an affirmative defense to a charge of
8    child pornography that the defendant reasonably believed,
9    under all of the circumstances, that the child was 18 years
10    of age or older or that the person was not a severely or
11    profoundly mentally retarded person but only where, prior
12    to the act or acts giving rise to a prosecution under this
13    Section, he or she took some affirmative action or made a
14    bonafide inquiry designed to ascertain whether the child
15    was 18 years of age or older or that the person was not a
16    severely or profoundly mentally retarded person and his or
17    her reliance upon the information so obtained was clearly
18    reasonable.
19        (2) (Blank).
20        (3) The charge of child pornography shall not apply to
21    the performance of official duties by law enforcement or
22    prosecuting officers or persons employed by law
23    enforcement or prosecuting agencies, court personnel or
24    attorneys, nor to bonafide treatment or professional
25    education programs conducted by licensed physicians,
26    psychologists or social workers.

 

 

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1        (4) (Blank). If the defendant possessed more than one
2    of the same film, videotape or visual reproduction or
3    depiction by computer in which child pornography is
4    depicted, then the trier of fact may infer that the
5    defendant possessed such materials with the intent to
6    disseminate them.
7        (5) The charge of child pornography does not apply to a
8    person who does not voluntarily possess a film, videotape,
9    or visual reproduction or depiction by computer in which
10    child pornography is depicted. Possession is voluntary if
11    the defendant knowingly procures or receives a film,
12    videotape, or visual reproduction or depiction for a
13    sufficient time to be able to terminate his or her
14    possession.
15        (6) Any violation of paragraph (1), (2), (3), (4), (5),
16    or (7) of subsection (a) that includes a child engaged in,
17    solicited for, depicted in, or posed in any act of sexual
18    penetration or bound, fettered, or subject to sadistic,
19    masochistic, or sadomasochistic abuse in a sexual context
20    shall be deemed a crime of violence.
21    (c) Violation of paragraph (1), (4), (5), or (7) of
22subsection (a) is a Class 1 felony with a mandatory minimum
23fine of $2,000 and a maximum fine of $100,000. Violation of
24paragraph (3) of subsection (a) is a Class 1 felony with a
25mandatory minimum fine of $1500 and a maximum fine of $100,000.
26Violation of paragraph (2) of subsection (a) is a Class 1

 

 

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1felony with a mandatory minimum fine of $1000 and a maximum
2fine of $100,000. Violation of paragraph (6) of subsection (a)
3is a Class 3 felony with a mandatory minimum fine of $1000 and
4a maximum fine of $100,000. Violation of paragraph (6) of
5subsection (a) is a Class X felony for which the defendant
6shall be sentenced to a term of imprisonment of not less than 9
7years and not more than 40 years if the defendant possessed
8more than one of the same film, videotape, or visual
9reproduction or depiction by computer in which child
10pornography is depicted.
11    (d) If a person is convicted of a second or subsequent
12violation of this Section within 10 years of a prior
13conviction, the court shall order a presentence psychiatric
14examination of the person. The examiner shall report to the
15court whether treatment of the person is necessary.
16    (e) Any film, videotape, photograph or other similar visual
17reproduction or depiction by computer which includes a child
18under the age of 18 and at least 13 years of age or a severely
19or profoundly mentally retarded person engaged in any activity
20described in subparagraphs (i) through (vii) or paragraph 1 of
21subsection (a), and any material or equipment used or intended
22for use in photographing, filming, printing, producing,
23reproducing, manufacturing, projecting, exhibiting, depiction
24by computer, or disseminating such material shall be seized and
25forfeited in the manner, method and procedure provided by
26Section 36-1 of this Code for the seizure and forfeiture of

 

 

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1vessels, vehicles and aircraft.
2    In addition, any person convicted under this Section is
3subject to the property forfeiture provisions set forth in
4Article 124B of the Code of Criminal Procedure of 1963.
5    (e-5) Upon the conclusion of a case brought under this
6Section, the court shall seal all evidence depicting a victim
7or witness that is sexually explicit. The evidence may be
8unsealed and viewed, on a motion of the party seeking to unseal
9and view the evidence, only for good cause shown and in the
10discretion of the court. The motion must expressly set forth
11the purpose for viewing the material. The State's attorney and
12the victim, if possible, shall be provided reasonable notice of
13the hearing on the motion to unseal the evidence. Any person
14entitled to notice of a hearing under this subsection (e-5) may
15object to the motion.
16    (f) Definitions. For the purposes of this Section:
17        (1) "Disseminate" means (i) to sell, distribute,
18    exchange or transfer possession, whether with or without
19    consideration or (ii) to make a depiction by computer
20    available for distribution or downloading through the
21    facilities of any telecommunications network or through
22    any other means of transferring computer programs or data
23    to a computer.
24        (2) "Produce" means to direct, promote, advertise,
25    publish, manufacture, issue, present or show.
26        (3) "Reproduce" means to make a duplication or copy.

 

 

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1        (4) "Depict by computer" means to generate or create,
2    or cause to be created or generated, a computer program or
3    data that, after being processed by a computer either alone
4    or in conjunction with one or more computer programs,
5    results in a visual depiction on a computer monitor,
6    screen, or display.
7        (5) "Depiction by computer" means a computer program or
8    data that, after being processed by a computer either alone
9    or in conjunction with one or more computer programs,
10    results in a visual depiction on a computer monitor,
11    screen, or display.
12        (6) "Computer", "computer program", and "data" have
13    the meanings ascribed to them in Section 16D-2 of this
14    Code.
15        (7) For the purposes of this Section, "child
16    pornography" includes a film, videotape, photograph, or
17    other similar visual medium or reproduction or depiction by
18    computer that is, or appears to be, that of a person,
19    either in part, or in total, under the age of 18 and at
20    least 13 years of age or a severely or profoundly mentally
21    retarded person, regardless of the method by which the
22    film, videotape, photograph, or other similar visual
23    medium or reproduction or depiction by computer is created,
24    adopted, or modified to appear as such. "Child pornography"
25    also includes a film, videotape, photograph, or other
26    similar visual medium or reproduction or depiction by

 

 

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1    computer that is advertised, promoted, presented,
2    described, or distributed in such a manner that conveys the
3    impression that the film, videotape, photograph, or other
4    similar visual medium or reproduction or depiction by
5    computer is of a person under the age of 18 and at least 13
6    years of age or a severely or profoundly mentally retarded
7    person.
8    (g) Re-enactment; findings; purposes.
9        (1) The General Assembly finds and declares that:
10            (i) Section 50-5 of Public Act 88-680, effective
11        January 1, 1995, contained provisions amending the
12        child pornography statute, Section 11-20.1 of the
13        Criminal Code of 1961. Section 50-5 also contained
14        other provisions.
15            (ii) In addition, Public Act 88-680 was entitled
16        "AN ACT to create a Safe Neighborhoods Law". (A)
17        Article 5 was entitled JUVENILE JUSTICE and amended the
18        Juvenile Court Act of 1987. (B) Article 15 was entitled
19        GANGS and amended various provisions of the Criminal
20        Code of 1961 and the Unified Code of Corrections. (C)
21        Article 20 was entitled ALCOHOL ABUSE and amended
22        various provisions of the Illinois Vehicle Code. (D)
23        Article 25 was entitled DRUG ABUSE and amended the
24        Cannabis Control Act and the Illinois Controlled
25        Substances Act. (E) Article 30 was entitled FIREARMS
26        and amended the Criminal Code of 1961 and the Code of

 

 

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1        Criminal Procedure of 1963. (F) Article 35 amended the
2        Criminal Code of 1961, the Rights of Crime Victims and
3        Witnesses Act, and the Unified Code of Corrections. (G)
4        Article 40 amended the Criminal Code of 1961 to
5        increase the penalty for compelling organization
6        membership of persons. (H) Article 45 created the
7        Secure Residential Youth Care Facility Licensing Act
8        and amended the State Finance Act, the Juvenile Court
9        Act of 1987, the Unified Code of Corrections, and the
10        Private Correctional Facility Moratorium Act. (I)
11        Article 50 amended the WIC Vendor Management Act, the
12        Firearm Owners Identification Card Act, the Juvenile
13        Court Act of 1987, the Criminal Code of 1961, the
14        Wrongs to Children Act, and the Unified Code of
15        Corrections.
16            (iii) On September 22, 1998, the Third District
17        Appellate Court in People v. Dainty, 701 N.E. 2d 118,
18        ruled that Public Act 88-680 violates the single
19        subject clause of the Illinois Constitution (Article
20        IV, Section 8 (d)) and was unconstitutional in its
21        entirety. As of the time this amendatory Act of 1999
22        was prepared, People v. Dainty was still subject to
23        appeal.
24            (iv) Child pornography is a vital concern to the
25        people of this State and the validity of future
26        prosecutions under the child pornography statute of

 

 

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1        the Criminal Code of 1961 is in grave doubt.
2        (2) It is the purpose of this amendatory Act of 1999 to
3    prevent or minimize any problems relating to prosecutions
4    for child pornography that may result from challenges to
5    the constitutional validity of Public Act 88-680 by
6    re-enacting the Section relating to child pornography that
7    was included in Public Act 88-680.
8        (3) This amendatory Act of 1999 re-enacts Section
9    11-20.1 of the Criminal Code of 1961, as it has been
10    amended. This re-enactment is intended to remove any
11    question as to the validity or content of that Section; it
12    is not intended to supersede any other Public Act that
13    amends the text of the Section as set forth in this
14    amendatory Act of 1999. The material is shown as existing
15    text (i.e., without underscoring) because, as of the time
16    this amendatory Act of 1999 was prepared, People v. Dainty
17    was subject to appeal to the Illinois Supreme Court.
18        (4) The re-enactment by this amendatory Act of 1999 of
19    Section 11-20.1 of the Criminal Code of 1961 relating to
20    child pornography that was amended by Public Act 88-680 is
21    not intended, and shall not be construed, to imply that
22    Public Act 88-680 is invalid or to limit or impair any
23    legal argument concerning whether those provisions were
24    substantially re-enacted by other Public Acts.
25(Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10;
2696-1000, eff. 7-2-10; 96-1551, eff. 7-1-11.)