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90_SB0098 720 ILCS 5/11-20 from Ch. 38, par. 11-20 Amends the Criminal Code of 1961. Provides that the contemporary adult community standard to be applied in determining whether material is obscene is the contemporary adult community standard of the county in which the material is sold, delivered, or advertised or in which it is performed. Effective immediately. LRB9001273RCks LRB9001273RCks 1 AN ACT to amend the Criminal Code of 1961 by changing 2 Section 11-20. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Criminal Code of 1961 is amended by 6 changing Section 11-20 as follows: 7 (720 ILCS 5/11-20) (from Ch. 38, par. 11-20) 8 Sec. 11-20. Obscenity. 9 (a) Elements of the Offense. A person commits obscenity 10 when, with knowledge of the nature or content thereof, or 11 recklessly failing to exercise reasonable inspection which 12 would have disclosed the nature or content thereof, he: 13 (1) Sells, delivers or provides, or offers or 14 agrees to sell, deliver or provide any obscene writing, 15 picture, record or other representation or embodiment of 16 the obscene; or 17 (2) Presents or directs an obscene play, dance or 18 other performance or participates directly in that 19 portion thereof which makes it obscene; or 20 (3) Publishes, exhibits or otherwise makes 21 available anything obscene; or 22 (4) Performs an obscene act or otherwise presents 23 an obscene exhibition of his body for gain; or 24 (5) Creates, buys, procures or possesses obscene 25 matter or material with intent to disseminate it in 26 violation of this Section, or of the penal laws or 27 regulations of any other jurisdiction; or 28 (6) Advertises or otherwise promotes the sale of 29 material represented or held out by him to be obscene, 30 whether or not it is obscene. 31 (b) Obscene Defined. -2- LRB9001273RCks 1 Any material or performance is obscene if: (1) the 2 average person, applying contemporary adult community 3 standards in the county in which the material is sold, 4 delivered, or advertised or in which the performance occurs, 5 would find that, taken as a whole, it appeals to the prurient 6 interest; and (2) the average person, applying contemporary 7 adult community standards in the county in which the material 8 is sold, delivered, or advertised or in which the performance 9 occurs, would find that it depicts or describes, in a 10 patently offensive way, ultimate sexual acts or 11 sadomasochistic sexual acts, whether normal or perverted, 12 actual or simulated, or masturbation, excretory functions or 13 lewd exhibition of the genitals; and (3) taken as a whole, it 14 lacks serious literary, artistic, political or scientific 15 value. 16 (c) Interpretation of Evidence. 17 Obscenity shall be judged with reference to ordinary 18 adults, except that it shall be judged with reference to 19 children or other specially susceptible audiences if it 20 appears from the character of the material or the 21 circumstances of its dissemination to be specially designed 22 for or directed to such an audience. 23 Where circumstances of production, presentation, sale, 24 dissemination, distribution, or publicity indicate that 25 material is being commercially exploited for the sake of its 26 prurient appeal, such evidence is probative with respect to 27 the nature of the matter and can justify the conclusion that 28 the matter is lacking in serious literary, artistic, 29 political or scientific value. 30 In any prosecution for an offense under this Section 31 evidence shall be admissible to show: 32 (1) The character of the audience for which the 33 material was designed or to which it was directed; 34 (2) What the predominant appeal of the material -3- LRB9001273RCks 1 would be for ordinary adults or a special audience, and 2 what effect, if any, it would probably have on the 3 behavior of such people; 4 (3) The artistic, literary, scientific, educational 5 or other merits of the material, or absence thereof; 6 (4) The degree, if any, of public acceptance of the 7 material in the county of this State in which the 8 material is sold, delivered, advertised, or performed; 9 (5) Appeal to prurient interest, or absence 10 thereof, in advertising or other promotion of the 11 material; 12 (6) Purpose of the author, creator, publisher or 13 disseminator. 14 (d) Sentence. 15 Obscenity is a Class A misdemeanor. A second or 16 subsequent offense is a Class 4 felony. 17 (e) Prima Facie Evidence. 18 The creation, purchase, procurement or possession of a 19 mold, engraved plate or other embodiment of obscenity 20 specially adapted for reproducing multiple copies, or the 21 possession of more than 3 copies of obscene material shall be 22 prima facie evidence of an intent to disseminate. 23 (f) Affirmative Defenses. 24 It shall be an affirmative defense to obscenity that the 25 dissemination: 26 (1) Was not for gain and was made to personal 27 associates other than children under 18 years of age; 28 (2) Was to institutions or individuals having 29 scientific or other special justification for possession 30 of such material. 31 (g) Forfeiture of property: 32 (1) Legislative Declaration. Obscenity is a 33 far-reaching and extremely profitable crime. This crime 34 persists despite the threat of prosecution and successful -4- LRB9001273RCks 1 prosecution because existing sanctions do not effectively 2 reach the money and other assets generated by it. It is 3 therefore necessary to supplement existing sanctions by 4 mandating forfeiture of money and other assets generated 5 by this crime. Forfeiture diminishes the financial 6 incentives which encourage and sustain obscenity and 7 secures for the State, local government and prosecutors a 8 resource for prosecuting these crimes. 9 (2) Definitions. 10 (i) "Person" means an individual, partnership, 11 private corporation, public, municipal, governmental 12 or quasi-municipal corporation, unincorporated 13 association, trustee or receiver. 14 (ii) "Property" means: 15 (a) real estate, including things growing 16 on, affixed to and found in land, and any kind 17 of interest therein; and 18 (b) tangible and intangible personal 19 property, including rights, privileges, 20 interests, claims and securities. 21 (3) Forfeiture of Property. Any person who has 22 been convicted previously of the offense of obscenity and 23 who shall be convicted of a second or subsequent offense 24 of obscenity shall forfeit to the State of Illinois: 25 (i) Any property constituting or derived from 26 any proceeds such person obtained, directly or 27 indirectly, as a result of such offense; and 28 (ii) Any of the person's property used in any 29 manner, wholly or in part, to commit such offense. 30 (4) Forfeiture Hearing. At any time following a 31 second or subsequent conviction for obscenity, the court 32 shall, upon petition by the Attorney General or the 33 State's Attorney, conduct a hearing to determine whether 34 there is any property that is subject to forfeiture as -5- LRB9001273RCks 1 provided hereunder. At the forfeiture hearing the People 2 shall have the burden of establishing by preponderance of 3 the evidence that such property is subject to forfeiture. 4 (5) Prior Restraint. 5 Nothing in this subsection shall be construed as 6 authorizing the prior restraint of any showing, 7 performance or exhibition of allegedly obscene films, 8 plays or other presentations or of any sale or 9 distribution of allegedly obscene materials. 10 (6) Seizure, Sale and Distribution of the Property. 11 (i) Upon a determination under subparagraph 12 (4) that there is property subject to forfeiture, 13 the court shall authorize the Attorney General or 14 the State's Attorney, except as provided in this 15 Section, to seize all property declared forfeited 16 upon terms and conditions as the court shall deem 17 proper. 18 (ii) The Attorney General or State's Attorney 19 is authorized to sell all property forfeited and 20 seized pursuant to this Article, and, after the 21 deduction of all requisite expenses of 22 administration and sale, shall distribute the 23 proceeds of such sale, along with any moneys 24 forfeited or seized, in accordance with subparagraph 25 (iii) hereof. If the Attorney General or State's 26 Attorney believes any such property describes, 27 depicts or portrays any of the acts or activities 28 described in subsection (b) of this Section, he 29 shall apply to the court for an order to destroy 30 such property, and if the court determines the 31 property describes, depicts or portrays such acts it 32 shall order the Attorney General or State's Attorney 33 to destroy such property. 34 (iii) All monies and the sale proceeds of all -6- LRB9001273RCks 1 other property forfeited and seized pursuant hereto 2 shall be distributed as follows: 3 (a) Fifty percent shall be distributed to 4 the unit of local government whose officers or 5 employees conducted the investigation into and 6 caused the arrest or arrests and prosecution 7 leading to the forfeiture, or, if the 8 investigations, arrest or arrests and 9 prosecution leading to the forfeiture were 10 undertaken by the sheriff, this portion shall 11 be distributed to the county for deposit in a 12 special fund in the county treasury 13 appropriated to the sheriff. Amounts 14 distributed to the county for the sheriff or to 15 the units of local government hereunder shall 16 be used for enforcement of laws or ordinances 17 governing obscenity and child pornography. In 18 the event, however, that the investigation, 19 arrest or arrests and prosecution leading to 20 the forfeiture were undertaken solely by a 21 State agency, the portion provided hereunder 22 shall be paid into the State treasury to be 23 used for enforcement of laws governing 24 obscenity and child pornography. 25 (b) Twenty-five percent shall be 26 distributed to the county in which the 27 prosecution resulting in the forfeiture was 28 instituted, deposited in a special fund in the 29 county treasury and appropriated to the State's 30 Attorney for use in the enforcement of laws 31 governing obscenity and child pornography. 32 (c) Twenty-five percent shall be 33 distributed to the Office of the State's 34 Attorneys Appellate Prosecutor and deposited in -7- LRB9001273RCks 1 the Obscenity Profits Forfeiture Fund, which is 2 hereby created in the State Treasury, to be 3 used by the Office of the State's Attorneys 4 Appellate Prosecutor for additional expenses 5 incurred in prosecuting appeals arising under 6 Sections 11-20 and 11-20.1 of the Criminal Code 7 of 1961. Any amounts remaining in the Fund 8 after all additional expenses have been paid 9 shall be used by the Office to reduce the 10 participating county contributions to the 11 Office on a pro-rated basis as determined by 12 the board of governors of the Office of the 13 State's Attorneys Appellate Prosecutor based on 14 the populations of the participating counties. 15 (7) Construction of subsection (g). 16 It shall be the intent of the General Assembly that this 17 subsection be liberally construed so as to effect its 18 purposes. The forfeiture of property and other remedies 19 hereunder shall be considered to be in addition, and not 20 exclusive of any sentence or other remedy provided by law. 21 Subsection (g) of this Section shall not apply to any 22 property of a public library or any property of a library 23 operated by an institution accredited by a generally 24 recognized accrediting agency. 25 (Source: P.A. 85-1014.) 26 Section 99. Effective date. This Act takes effect upon 27 becoming law.
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