State of Illinois
91st General Assembly

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 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.
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 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-                LRB9102851RCks
 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-                LRB9102851RCks
 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-                LRB9102851RCks
 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-                LRB9102851RCks
 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-                LRB9102851RCks
 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.)

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