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91_SB1585
LRB9112291RCmg
1 AN ACT to amend the Criminal Code of 1961 by changing
2 Sections 11-20.1 and 11-20.2.
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 Sections 11-20.1 and 11-20.2 as follows:
7 (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
8 Sec. 11-20.1. Child pornography.
9 (a) A person commits the offense of child pornography
10 who:
11 (1) films, videotapes, photographs, or otherwise
12 depicts or portrays by means of any similar visual medium
13 or reproduction or depicts by computer any child whom he
14 knows or reasonably should know to be under the age of 18
15 or any institutionalized severely or profoundly mentally
16 retarded person where such child or institutionalized
17 severely or profoundly mentally retarded person is:
18 (i) actually or by simulation engaged in any
19 act of sexual intercourse with any person or animal;
20 or
21 (ii) actually or by simulation engaged in any
22 act of sexual contact involving the sex organs of
23 the child or institutionalized severely or
24 profoundly mentally retarded person and the mouth,
25 anus, or sex organs of another person or animal; or
26 which involves the mouth, anus or sex organs of the
27 child or institutionalized severely or profoundly
28 mentally retarded person and the sex organs of
29 another person or animal; or
30 (iii) actually or by simulation engaged in any
31 act of masturbation; or
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1 (iv) actually or by simulation portrayed as
2 being the object of, or otherwise engaged in, any
3 act of lewd fondling, touching, or caressing
4 involving another person or animal; or
5 (v) actually or by simulation engaged in any
6 act of excretion or urination within a sexual
7 context; or
8 (vi) actually or by simulation portrayed or
9 depicted as bound, fettered, or subject to sadistic,
10 masochistic, or sadomasochistic abuse in any sexual
11 context; or
12 (vii) depicted or portrayed in any pose,
13 posture or setting involving a lewd exhibition of
14 the unclothed genitals, pubic area, buttocks, or, if
15 such person is female, a fully or partially
16 developed breast of the child or other person; or
17 (2) with the knowledge of the nature or content
18 thereof, reproduces, disseminates, offers to disseminate,
19 exhibits or possesses with intent to disseminate any
20 film, videotape, photograph or other similar visual
21 reproduction or depiction by computer of any child or
22 institutionalized severely or profoundly mentally
23 retarded person whom the person knows or reasonably
24 should know to be under the age of 18 or to be an
25 institutionalized severely or profoundly mentally
26 retarded person, engaged in any activity described in
27 subparagraphs (i) through (vii) of paragraph (1) of this
28 subsection; or
29 (3) with knowledge of the subject matter or theme
30 thereof, produces any stage play, live performance, film,
31 videotape or other similar visual portrayal or depiction
32 by computer which includes a child whom the person knows
33 or reasonably should know to be under the age of 18 or an
34 institutionalized severely or profoundly mentally
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1 retarded person engaged in any activity described in
2 subparagraphs (i) through (vii) of paragraph (1) of this
3 subsection; or
4 (4) solicits, uses, persuades, induces, entices, or
5 coerces any child whom he knows or reasonably should know
6 to be under the age of 18 or an institutionalized
7 severely or profoundly mentally retarded person to appear
8 in any stage play, live presentation, film, videotape,
9 photograph or other similar visual reproduction or
10 depiction by computer in which the child or
11 institutionalized severely or profoundly mentally
12 retarded person is or will be depicted, actually or by
13 simulation, in any act, pose or setting described in
14 subparagraphs (i) through (vii) of paragraph (1) of this
15 subsection; or
16 (5) is a parent, step-parent, legal guardian or
17 other person having care or custody of a child whom the
18 person knows or reasonably should know to be under the
19 age of 18 or an institutionalized severely or profoundly
20 mentally retarded person and who knowingly permits,
21 induces, promotes, or arranges for such child or
22 institutionalized severely or profoundly mentally
23 retarded person to appear in any stage play, live
24 performance, film, videotape, photograph or other similar
25 visual presentation, portrayal or simulation or depiction
26 by computer of any act or activity described in
27 subparagraphs (i) through (vii) of paragraph (1) of this
28 subsection; or
29 (6) with knowledge of the nature or content
30 thereof, possesses any film, videotape, photograph or
31 other similar visual reproduction or depiction by
32 computer of any child or institutionalized severely or
33 profoundly mentally retarded person whom the person knows
34 or reasonably should know to be under the age of 18 or to
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1 be an institutionalized severely or profoundly mentally
2 retarded person, engaged in any activity described in
3 subparagraphs (i) through (vii) of paragraph (1) of this
4 subsection; or
5 (7) solicits, uses, persuades, induces, entices, or
6 coerces a person to provide a child under the age of 18
7 or an institutionalized severely or profoundly mentally
8 retarded person to appear in any videotape, photograph,
9 film, stage play, live presentation, or other similar
10 visual reproduction or depiction by computer in which the
11 child or an institutionalized severely or profoundly
12 mentally retarded person will be depicted, actually or by
13 simulation, in any act, pose, or setting described in
14 subparagraphs (i) through (vii) of paragraph (1) of this
15 subsection.
16 (b) (1) It shall be an affirmative defense to a charge
17 of child pornography that the defendant reasonably believed,
18 under all of the circumstances, that the child was 18 years
19 of age or older or that the person was not an
20 institutionalized severely or profoundly mentally retarded
21 person but only where, prior to the act or acts giving rise
22 to a prosecution under this Section, he took some affirmative
23 action or made a bonafide inquiry designed to ascertain
24 whether the child was 18 years of age or older or that the
25 person was not an institutionalized severely or profoundly
26 mentally retarded person and his reliance upon the
27 information so obtained was clearly reasonable.
28 (2) (Blank).
29 (3) The charge of child pornography shall not apply
30 to the performance of official duties by law enforcement
31 or prosecuting officers, court personnel or attorneys,
32 nor to bonafide treatment or professional education
33 programs conducted by licensed physicians, psychologists
34 or social workers.
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1 (4) Possession by the defendant of more than one of
2 the same film, videotape or visual reproduction or
3 depiction by computer in which child pornography is
4 depicted shall raise a rebuttable presumption that the
5 defendant possessed such materials with the intent to
6 disseminate them.
7 (5) The charge of child pornography does not apply
8 to a person who does not voluntarily possess a film,
9 videotape, or visual reproduction or depiction by
10 computer in which child pornography is depicted.
11 Possession is voluntary if the defendant knowingly
12 procures or receives a film, videotape, or visual
13 reproduction or depiction for a sufficient time to be
14 able to terminate his or her possession.
15 (c) Violation of paragraph (1), (4), (5), or (7) of
16 subsection (a) is a Class 1 felony with a mandatory minimum
17 fine of $2,000 and a maximum fine of $100,000. Violation of
18 paragraph (3) of subsection (a) is a Class 1 felony with a
19 mandatory minimum fine of $1500 and a maximum fine of
20 $100,000. Violation of paragraph (2) of subsection (a) is a
21 Class 1 felony with a mandatory minimum fine of $1000 and a
22 maximum fine of $100,000. Violation of paragraph (6) of
23 subsection (a) is a Class 3 felony with a mandatory minimum
24 fine of $1000 and a maximum fine of $100,000.
25 (d) If a person is convicted of a second or subsequent
26 violation of this Section within 10 years of a prior
27 conviction, the court shall order a presentence psychiatric
28 examination of the person. The examiner shall report to the
29 court whether treatment of the person is necessary.
30 (e) Any film, videotape, photograph or other similar
31 visual reproduction or depiction by computer which includes a
32 child under the age of 18 or an institutionalized severely or
33 profoundly mentally retarded person engaged in any activity
34 described in subparagraphs (i) through (vii) or paragraph 1
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1 of subsection (a), and any material or equipment used or
2 intended for use in photographing, filming, printing,
3 producing, reproducing, manufacturing, projecting,
4 exhibiting, depiction by computer, or disseminating such
5 material shall be seized and forfeited in the manner, method
6 and procedure provided by Section 11-20.1A 36-1 of this Code
7 for the seizure and forfeiture of vessels, vehicles and
8 aircraft.
9 (e-5) Upon the conclusion of a case brought under this
10 Section, the court shall seal all evidence depicting a victim
11 or witness that is sexually explicit. The evidence may be
12 unsealed and viewed, on a motion of the party seeking to
13 unseal and view the evidence, only for good cause shown and
14 in the discretion of the court. The motion must expressly
15 set forth the purpose for viewing the material. The State's
16 attorney and the victim, if possible, shall be provided
17 reasonable notice of the hearing on the motion to unseal the
18 evidence. Any person entitled to notice of a hearing under
19 this subsection (e-5) may object to the motion.
20 (f) Definitions. For the purposes of this Section:
21 (1) "Disseminate" means (i) to sell, distribute,
22 exchange or transfer possession, whether with or without
23 consideration or (ii) to make a depiction by computer
24 available for distribution or downloading through the
25 facilities of any telecommunications network or through
26 any other means of transferring computer programs or data
27 to a computer;
28 (2) "Produce" means to direct, promote, advertise,
29 publish, manufacture, issue, present or show;
30 (3) "Reproduce" means to make a duplication or
31 copy;
32 (4) "Depict by computer" means to generate or
33 create, or cause to be created or generated, a computer
34 program or data that, after being processed by a computer
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1 either alone or in conjunction with one or more computer
2 programs, results in a visual depiction on a computer
3 monitor, screen, or display.
4 (5) "Depiction by computer" means a computer
5 program or data that, after being processed by a computer
6 either alone or in conjunction with one or more computer
7 programs, results in a visual depiction on a computer
8 monitor, screen, or display.
9 (6) "Computer", "computer program", and "data" have
10 the meanings ascribed to them in Section 16D-2 of this
11 Code.
12 (7) "Child" includes a film, videotape, photograph,
13 or other similar visual medium or reproduction or
14 depiction by computer that is, or appears to be, that of
15 a person, either in part, or in total, under the age of
16 18, regardless of the method by which the film,
17 videotape, photograph, or other similar visual medium or
18 reproduction or depiction by computer is created,
19 adopted, or modified to appear as such. "Child" also
20 includes a film, videotape, photograph, or other similar
21 visual medium or reproduction or depiction by computer
22 that is advertised, promoted, presented, described, or
23 distributed in such a manner that conveys the impression
24 that the film, videotape, photograph, or other similar
25 visual medium or reproduction or depiction by computer is
26 of a person under the age of 18.
27 (g) Re-enactment; findings; purposes.
28 (1) The General Assembly finds and declares that:
29 (i) Section 50-5 of Public Act 88-680,
30 effective January 1, 1995, contained provisions
31 amending the child pornography statute, Section
32 11-20.1 of the Criminal Code of 1961. Section 50-5
33 also contained other provisions.
34 (ii) In addition, Public Act 88-680 was
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1 entitled "AN ACT to create a Safe Neighborhoods
2 Law". (A) Article 5 was entitled JUVENILE JUSTICE
3 and amended the Juvenile Court Act of 1987. (B)
4 Article 15 was entitled GANGS and amended various
5 provisions of the Criminal Code of 1961 and the
6 Unified Code of Corrections. (C) Article 20 was
7 entitled ALCOHOL ABUSE and amended various
8 provisions of the Illinois Vehicle Code. (D)
9 Article 25 was entitled DRUG ABUSE and amended the
10 Cannabis Control Act and the Illinois Controlled
11 Substances Act. (E) Article 30 was entitled FIREARMS
12 and amended the Criminal Code of 1961 and the Code
13 of Criminal Procedure of 1963. (F) Article 35
14 amended the Criminal Code of 1961, the Rights of
15 Crime Victims and Witnesses Act, and the Unified
16 Code of Corrections. (G) Article 40 amended the
17 Criminal Code of 1961 to increase the penalty for
18 compelling organization membership of persons. (H)
19 Article 45 created the Secure Residential Youth Care
20 Facility Licensing Act and amended the State Finance
21 Act, the Juvenile Court Act of 1987, the Unified
22 Code of Corrections, and the Private Correctional
23 Facility Moratorium Act. (I) Article 50 amended the
24 WIC Vendor Management Act, the Firearm Owners
25 Identification Card Act, the Juvenile Court Act of
26 1987, the Criminal Code of 1961, the Wrongs to
27 Children Act, and the Unified Code of Corrections.
28 (iii) On September 22, 1998, the Third
29 District Appellate Court in People v. Dainty, 701
30 N.E. 2d 118, ruled that Public Act 88-680 violates
31 the single subject clause of the Illinois
32 Constitution (Article IV, Section 8 (d)) and was
33 unconstitutional in its entirety. As of the time
34 this amendatory Act of 1999 was prepared, People v.
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1 Dainty was still subject to appeal.
2 (iv) Child pornography is a vital concern to
3 the people of this State and the validity of future
4 prosecutions under the child pornography statute of
5 the Criminal Code of 1961 is in grave doubt.
6 (2) It is the purpose of this amendatory Act of
7 1999 to prevent or minimize any problems relating to
8 prosecutions for child pornography that may result from
9 challenges to the constitutional validity of Public Act
10 88-680 by re-enacting the Section relating to child
11 pornography that was included in Public Act 88-680.
12 (3) This amendatory Act of 1999 re-enacts Section
13 11-20.1 of the Criminal Code of 1961, as it has been
14 amended. This re-enactment is intended to remove any
15 question as to the validity or content of that Section;
16 it is not intended to supersede any other Public Act that
17 amends the text of the Section as set forth in this
18 amendatory Act of 1999. The material is shown as
19 existing text (i.e., without underscoring) because, as
20 of the time this amendatory Act of 1999 was prepared,
21 People v. Dainty was subject to appeal to the Illinois
22 Supreme Court.
23 (4) The re-enactment by this amendatory Act of 1999
24 of Section 11-20.1 of the Criminal Code of 1961 relating
25 to child pornography that was amended by Public Act
26 88-680 is not intended, and shall not be construed, to
27 imply that Public Act 88-680 is invalid or to limit or
28 impair any legal argument concerning whether those
29 provisions were substantially re-enacted by other Public
30 Acts.
31 (Source: P.A. 90-68, eff. 7-8-97; 90-678, eff. 7-31-98;
32 90-786, eff. 1-1-99; 91-54, eff. 6-30-99; 91-229, eff.
33 1-1-00; 91-357, eff. 7-29-99; revised 8-30-99.)
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1 (720 ILCS 5/11-20.2) (from Ch. 38, par. 11-20.2)
2 Sec. 11-20.2. Any commercial film processor, and
3 photographic print processor, or computer maintenance or
4 repair person who has knowledge of or observes, within the
5 scope of his professional capacity or employment, any film,
6 photograph, videotape, negative, or slide, or depiction by
7 means of any similar visual medium which depicts a child whom
8 the processor knows or reasonably should know to be under the
9 age of 18 where such child is:
10 (i) actually or by simulation engaged in any act of
11 sexual intercourse with any person or animal; or
12 (ii) actually or by simulation engaged in any act of
13 sexual contact involving the sex organs of the child and the
14 mouth, anus, or sex organs of another person or animal; or
15 which involves the mouth, anus or sex organs of the child and
16 the sex organs of another person or animal; or
17 (iii) actually or by simulation engaged in any act of
18 masturbation; or
19 (iv) actually or by simulation portrayed as being the
20 object of, or otherwise engaged in, any act of lewd fondling,
21 touching, or caressing involving another person or animal; or
22 (v) actually or by simulation engaged in any act of
23 excretion or urination within a sexual context; or
24 (vi) actually or by simulation portrayed or depicted as
25 bound, fettered, or subject to sadistic, masochistic, or
26 sadomasochistic abuse in any sexual context; shall report
27 such instance to a peace officer immediately or as soon as
28 possible. Failure to make such report shall be a business
29 offense with a fine of $1,000.
30 (Source: P.A. 84-1280.)
31 Section 99. Effective date. This Act takes effect upon
32 becoming law.