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Full Text of HB3283  97th General Assembly

HB3283enr 97TH GENERAL ASSEMBLY



 


 
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1    AN ACT concerning criminal law.
 
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    Sec. 11-20.1. Child pornography.
8    (a) A person commits the offense of child pornography who:
9        (1) films, videotapes, photographs, or otherwise
10    depicts or portrays by means of any similar visual medium
11    or reproduction or depicts by computer any child whom he
12    knows or reasonably should know to be under the age of 18
13    or any severely or profoundly mentally retarded person
14    where such child or severely or profoundly mentally
15    retarded person is:
16            (i) actually or by simulation engaged in any act of
17        sexual penetration or sexual conduct with any person or
18        animal; or
19            (ii) actually or by simulation engaged in any act
20        of sexual penetration or sexual conduct involving the
21        sex organs of the child or severely or profoundly
22        mentally retarded person and the mouth, anus, or sex
23        organs of another person or animal; or which involves

 

 

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

 

 

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

 

 

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1    who knowingly permits, induces, promotes, or arranges for
2    such child or severely or profoundly mentally retarded
3    person to appear in any stage play, live performance, film,
4    videotape, photograph or other similar visual
5    presentation, portrayal or simulation or depiction by
6    computer of any act or activity described in subparagraphs
7    (i) through (vii) of paragraph (1) of this subsection; or
8        (6) with knowledge of the nature or content thereof,
9    possesses any film, videotape, photograph or other similar
10    visual reproduction or depiction by computer of any child
11    or severely or profoundly mentally retarded person whom the
12    person knows or reasonably should know to be under the age
13    of 18 or to be a severely or profoundly mentally retarded
14    person, engaged in any activity described in subparagraphs
15    (i) through (vii) of paragraph (1) of this subsection; or
16        (7) solicits, uses, persuades, induces, entices, or
17    coerces a person to provide a child under the age of 18 or
18    a severely or profoundly mentally retarded person to appear
19    in any videotape, photograph, film, stage play, live
20    presentation, or other similar visual reproduction or
21    depiction by computer in which the child or severely or
22    profoundly mentally retarded person will be depicted,
23    actually or by simulation, in any act, pose, or setting
24    described in subparagraphs (i) through (vii) of paragraph
25    (1) of this subsection.
26    (b) (1) It shall be an affirmative defense to a charge of

 

 

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1    child pornography that the defendant reasonably believed,
2    under all of the circumstances, that the child was 18 years
3    of age or older or that the person was not a severely or
4    profoundly mentally retarded person but only where, prior
5    to the act or acts giving rise to a prosecution under this
6    Section, he took some affirmative action or made a bonafide
7    inquiry designed to ascertain whether the child was 18
8    years of age or older or that the person was not a severely
9    or profoundly mentally retarded person and his reliance
10    upon the information so obtained was clearly reasonable.
11        (1.5) Telecommunications carriers, commercial mobile
12    service providers, and providers of information services,
13    including, but not limited to, Internet service providers
14    and hosting service providers, are not liable under this
15    Section by virtue of the transmission, storage, or caching
16    of electronic communications or messages of others or by
17    virtue of the provision of other related
18    telecommunications, commercial mobile services, or
19    information services used by others in violation of this
20    Section.
21        (2) (Blank).
22        (3) The charge of child pornography shall not apply to
23    the performance of official duties by law enforcement or
24    prosecuting officers or persons employed by law
25    enforcement or prosecuting agencies, court personnel or
26    attorneys, nor to bonafide treatment or professional

 

 

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

 

 

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1moving depiction, a violation of paragraph (1), (4), (5), or
2(7) of subsection (a) is a Class X felony with a mandatory
3minimum fine of $2,000 and a maximum fine of $100,000. If the
4violation does not involve a film, videotape, or other moving
5depiction, a violation Violation of paragraph (3) of subsection
6(a) is a Class 1 felony with a mandatory minimum fine of $1500
7and a maximum fine of $100,000. If the violation involves a
8film, videotape, or other moving depiction, a violation of
9paragraph (3) of subsection (a) is a Class X felony with a
10mandatory minimum fine of $1500 and a maximum fine of $100,000.
11If the violation does not involve a film, videotape, or other
12moving depiction, a violation Violation of paragraph (2) of
13subsection (a) is a Class 1 felony with a mandatory minimum
14fine of $1000 and a maximum fine of $100,000. If the violation
15involves a film, videotape, or other moving depiction, a
16violation of paragraph (2) of subsection (a) is a Class X
17felony with a mandatory minimum fine of $1000 and a maximum
18fine of $100,000. If the violation does not involve a film,
19videotape, or other moving depiction, a violation Violation of
20paragraph (6) of subsection (a) is a Class 3 felony with a
21mandatory minimum fine of $1000 and a maximum fine of $100,000.
22If the violation involves a film, videotape, or other moving
23depiction, a violation of paragraph (6) of subsection (a) is a
24Class 2 felony with a mandatory minimum fine of $1000 and a
25maximum fine of $100,000.
26    (d) If a person is convicted of a second or subsequent

 

 

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1violation of this Section within 10 years of a prior
2conviction, the court shall order a presentence psychiatric
3examination of the person. The examiner shall report to the
4court whether treatment of the person is necessary.
5    (e) Any film, videotape, photograph or other similar visual
6reproduction or depiction by computer which includes a child
7under the age of 18 or a severely or profoundly mentally
8retarded person engaged in any activity described in
9subparagraphs (i) through (vii) or paragraph 1 of subsection
10(a), and any material or equipment used or intended for use in
11photographing, filming, printing, producing, reproducing,
12manufacturing, projecting, exhibiting, depiction by computer,
13or disseminating such material shall be seized and forfeited in
14the manner, method and procedure provided by Section 36-1 of
15this Code for the seizure and forfeiture of vessels, vehicles
16and aircraft.
17    In addition, any person convicted under this Section is
18subject to the property forfeiture provisions set forth in
19Article 124B of the Code of Criminal Procedure of 1963.
20    (e-5) Upon the conclusion of a case brought under this
21Section, the court shall seal all evidence depicting a victim
22or witness that is sexually explicit. The evidence may be
23unsealed and viewed, on a motion of the party seeking to unseal
24and view the evidence, only for good cause shown and in the
25discretion of the court. The motion must expressly set forth
26the purpose for viewing the material. The State's attorney and

 

 

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1the victim, if possible, shall be provided reasonable notice of
2the hearing on the motion to unseal the evidence. Any person
3entitled to notice of a hearing under this subsection (e-5) may
4object to the motion.
5    (f) Definitions. For the purposes of this Section:
6        (1) "Disseminate" means (i) to sell, distribute,
7    exchange or transfer possession, whether with or without
8    consideration or (ii) to make a depiction by computer
9    available for distribution or downloading through the
10    facilities of any telecommunications network or through
11    any other means of transferring computer programs or data
12    to a computer.
13        (2) "Produce" means to direct, promote, advertise,
14    publish, manufacture, issue, present or show.
15        (3) "Reproduce" means to make a duplication or copy.
16        (4) "Depict by computer" means to generate or create,
17    or cause to be created or generated, a computer program or
18    data that, after being processed by a computer either alone
19    or in conjunction with one or more computer programs,
20    results in a visual depiction on a computer monitor,
21    screen, or display.
22        (5) "Depiction by computer" means a computer program or
23    data that, after being processed by a computer either alone
24    or in conjunction with one or more computer programs,
25    results in a visual depiction on a computer monitor,
26    screen, or display.

 

 

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1        (6) "Computer", "computer program", and "data" have
2    the meanings ascribed to them in Section 16D-2 of this
3    Code.
4        (7) "Child" includes a film, videotape, photograph, or
5    other similar visual medium or reproduction or depiction by
6    computer that is, or appears to be, that of a person,
7    either in part, or in total, under the age of 18,
8    regardless of the method by which the film, videotape,
9    photograph, or other similar visual medium or reproduction
10    or depiction by computer is created, adopted, or modified
11    to appear as such. "Child" also includes a film, videotape,
12    photograph, or other similar visual medium or reproduction
13    or depiction by computer that is advertised, promoted,
14    presented, described, or distributed in such a manner that
15    conveys the impression that the film, videotape,
16    photograph, or other similar visual medium or reproduction
17    or depiction by computer is of a person under the age of
18    18.
19        (8) "Sexual penetration" and "sexual conduct" have the
20    meanings ascribed to them in Section 12-12 of this Code.
21    (g) Re-enactment; findings; purposes.
22        (1) The General Assembly finds and declares that:
23            (i) Section 50-5 of Public Act 88-680, effective
24        January 1, 1995, contained provisions amending the
25        child pornography statute, Section 11-20.1 of the
26        Criminal Code of 1961. Section 50-5 also contained

 

 

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1        other provisions.
2            (ii) In addition, Public Act 88-680 was entitled
3        "AN ACT to create a Safe Neighborhoods Law". (A)
4        Article 5 was entitled JUVENILE JUSTICE and amended the
5        Juvenile Court Act of 1987. (B) Article 15 was entitled
6        GANGS and amended various provisions of the Criminal
7        Code of 1961 and the Unified Code of Corrections. (C)
8        Article 20 was entitled ALCOHOL ABUSE and amended
9        various provisions of the Illinois Vehicle Code. (D)
10        Article 25 was entitled DRUG ABUSE and amended the
11        Cannabis Control Act and the Illinois Controlled
12        Substances Act. (E) Article 30 was entitled FIREARMS
13        and amended the Criminal Code of 1961 and the Code of
14        Criminal Procedure of 1963. (F) Article 35 amended the
15        Criminal Code of 1961, the Rights of Crime Victims and
16        Witnesses Act, and the Unified Code of Corrections. (G)
17        Article 40 amended the Criminal Code of 1961 to
18        increase the penalty for compelling organization
19        membership of persons. (H) Article 45 created the
20        Secure Residential Youth Care Facility Licensing Act
21        and amended the State Finance Act, the Juvenile Court
22        Act of 1987, the Unified Code of Corrections, and the
23        Private Correctional Facility Moratorium Act. (I)
24        Article 50 amended the WIC Vendor Management Act, the
25        Firearm Owners Identification Card Act, the Juvenile
26        Court Act of 1987, the Criminal Code of 1961, the

 

 

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1        Wrongs to Children Act, and the Unified Code of
2        Corrections.
3            (iii) On September 22, 1998, the Third District
4        Appellate Court in People v. Dainty, 701 N.E. 2d 118,
5        ruled that Public Act 88-680 violates the single
6        subject clause of the Illinois Constitution (Article
7        IV, Section 8 (d)) and was unconstitutional in its
8        entirety. As of the time this amendatory Act of 1999
9        was prepared, People v. Dainty was still subject to
10        appeal.
11            (iv) Child pornography is a vital concern to the
12        people of this State and the validity of future
13        prosecutions under the child pornography statute of
14        the Criminal Code of 1961 is in grave doubt.
15        (2) It is the purpose of this amendatory Act of 1999 to
16    prevent or minimize any problems relating to prosecutions
17    for child pornography that may result from challenges to
18    the constitutional validity of Public Act 88-680 by
19    re-enacting the Section relating to child pornography that
20    was included in Public Act 88-680.
21        (3) This amendatory Act of 1999 re-enacts Section
22    11-20.1 of the Criminal Code of 1961, as it has been
23    amended. This re-enactment is intended to remove any
24    question as to the validity or content of that Section; it
25    is not intended to supersede any other Public Act that
26    amends the text of the Section as set forth in this

 

 

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1    amendatory Act of 1999. The material is shown as existing
2    text (i.e., without underscoring) because, as of the time
3    this amendatory Act of 1999 was prepared, People v. Dainty
4    was subject to appeal to the Illinois Supreme Court.
5        (4) The re-enactment by this amendatory Act of 1999 of
6    Section 11-20.1 of the Criminal Code of 1961 relating to
7    child pornography that was amended by Public Act 88-680 is
8    not intended, and shall not be construed, to imply that
9    Public Act 88-680 is invalid or to limit or impair any
10    legal argument concerning whether those provisions were
11    substantially re-enacted by other Public Acts.
12(Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10;
1396-1000, eff. 7-2-10.)