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Public Act 094-0315


 

Public Act 0315 94TH GENERAL ASSEMBLY

 


 
Public Act 094-0315
 
HB4023 Enrolled LRB094 11300 RLC 42106 b

    AN ACT concerning criminal law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Criminal Code of 1961 is amended by changing
Section 11-21 and by adding Articles 12A and 12B as follows:
 
    (720 ILCS 5/11-21)  (from Ch. 38, par. 11-21)
    Sec. 11-21. Harmful material.
    (a) As used in this Section:
        "Distribute" means transfer possession of, whether
    with or without consideration.
        "Harmful to minors" means that quality of any
    description or representation, in whatever form, of
    nudity, sexual conduct, sexual excitement, or
    sado-masochistic abuse, when, taken as a whole, it (i)
    predominately appeals to the prurient interest in sex of
    minors, (ii) is patently offensive to prevailing standards
    in the adult community in the State as a whole with respect
    to what is suitable material for minors, and (iii) lacks
    serious literary, artistic, political, or scientific value
    for minors.
        "Knowingly" means having knowledge of the contents of
    the subject matter, or recklessly failing to exercise
    reasonable inspection which would have disclosed the
    contents.
        "Material" means (i) any picture, photograph, drawing,
    sculpture, film, video game, computer game, video or
    similar visual depiction, including any such
    representation or image which is stored electronically, or
    (ii) any book, magazine, printed matter however
    reproduced, or recorded audio of any sort.
        "Minor" means any person under the age of 18.
        "Nudity" means the showing of the human male or female
    genitals, pubic area or buttocks with less than a full
    opaque covering, or the showing of the female breast with
    less than a fully opaque covering of any portion below the
    top of the nipple, or the depiction of covered male
    genitals in a discernably turgid state.
        "Sado-masochistic abuse" means flagellation or torture
    by or upon a person clad in undergarments, a mask or
    bizarre costume, or the condition of being fettered, bound
    or otherwise physically restrained on the part of one
    clothed for sexual gratification or stimulation.
        "Sexual conduct" means acts of masturbation, sexual
    intercourse, or physical contact with a person's clothed or
    unclothed genitals, pubic area, buttocks or, if such person
    be a female, breast.
        "Sexual excitement" means the condition of human male
    or female genitals when in a state of sexual stimulation or
    arousal.
    (b) A person is guilty of distributing harmful material to
a minor when he or she:
        (1) knowingly sells, lends, distributes, or gives away
    to a minor, knowing that the minor is under the age of 18
    or failing to exercise reasonable care in ascertaining the
    person's true age:
            (A) any material which depicts nudity, sexual
        conduct or sado-masochistic abuse, or which contains
        explicit and detailed verbal descriptions or narrative
        accounts of sexual excitement, sexual conduct or
        sado-masochistic abuse, and which taken as a whole is
        harmful to minors;
            (B) a motion picture, show, or other presentation
        which depicts nudity, sexual conduct or
        sado-masochistic abuse and is harmful to minors; or
            (C) an admission ticket or pass to premises where
        there is exhibited or to be exhibited such a motion
        picture, show, or other presentation; or
        (2) admits a minor to premises where there is exhibited
    or to be exhibited such a motion picture, show, or other
    presentation, knowing that the minor is a person under the
    age of 18 or failing to exercise reasonable care in
    ascertaining the person's true age.
    (c) In any prosecution arising under this Section, it is an
affirmative defense:
        (1) that the minor as to whom the offense is alleged to
    have been committed exhibited to the accused a draft card,
    driver's license, birth certificate or other official or
    apparently official document purporting to establish that
    the minor was 18 years of age or older, which was relied
    upon by the accused;
        (2) that the defendant was in a parental or
    guardianship relationship with the minor or that the minor
    was accompanied by a parent or legal guardian;
        (3) that the defendant was a bona fide school, museum,
    or public library, or was a person acting in the course of
    his or her employment as an employee or official of such
    organization or retail outlet affiliated with and serving
    the educational purpose of such organization;
        (4) that the act charged was committed in aid of
    legitimate scientific or educational purposes; or
        (5) that an advertisement of harmful material as
    defined in this Section culminated in the sale or
    distribution of such harmful material to a child under
    circumstances where there was no personal confrontation of
    the child by the defendant, his employees, or agents, as
    where the order or request for such harmful material was
    transmitted by mail, telephone, Internet or similar means
    of communication, and delivery of such harmful material to
    the child was by mail, freight, Internet or similar means
    of transport, which advertisement contained the following
    statement, or a substantially similar statement, and that
    the defendant required the purchaser to certify that he or
    she was not under the age of 18 and that the purchaser
    falsely stated that he or she was not under the age of 18:
    "NOTICE: It is unlawful for any person under the age of 18
    to purchase the matter advertised. Any person under the age
    of 18 that falsely states that he or she is not under the
    age of 18 for the purpose of obtaining the material
    advertised is guilty of a Class B misdemeanor under the
    laws of the State."
    (d) The predominant appeal to prurient interest of the
material shall be judged with reference to average children of
the same general age of the child to whom such material was
sold, lent, distributed or given, unless it appears from the
nature of the matter or the circumstances of its dissemination
or distribution that it is designed for specially susceptible
groups, in which case the predominant appeal of the material
shall be judged with reference to its intended or probable
recipient group.
    (e) Distribution of harmful material in violation of this
Section is a Class A misdemeanor. A second or subsequent
offense is a Class 4 felony.
    (f) Any person under the age of 18 that falsely states,
either orally or in writing, that he or she is not under the
age of 18, or that presents or offers to any person any
evidence of age and identity that is false or not actually his
or her own for the purpose of ordering, obtaining, viewing, or
otherwise procuring or attempting to procure or view any
harmful material is guilty of a Class B misdemeanor.
    (a) Elements of the Offense.
    A person who, with knowledge that a person is a child, that
is a person under 18 years of age, or who fails to exercise
reasonable care in ascertaining the true age of a child,
knowingly distributes to or sends or causes to be sent to, or
exhibits to, or offers to distribute or exhibit any harmful
material to a child, is guilty of a misdemeanor.
    (b) Definitions.
    (1) Material is harmful if, to the average person, applying
contemporary standards, its predominant appeal, taken as a
whole, is to prurient interest, that is a shameful or morbid
interest in nudity, sex, or excretion, which goes substantially
beyond customary limits of candor in description or
representation of such matters, and is material the redeeming
social importance of which is substantially less than its
prurient appeal.
    (2) Material, as used in this Section means any writing,
picture, record or other representation or embodiment.
    (3) Distribute means to transfer possession of, whether
with or without consideration.
    (4) Knowingly, as used in this section means having
knowledge of the contents of the subject matter, or recklessly
failing to exercise reasonable inspection which would have
disclosed the contents thereof.
    (c) Interpretation of Evidence.
    The predominant appeal to prurient interest of the material
shall be judged with reference to average children of the same
general age of the child to whom such material was offered,
distributed, sent or exhibited, unless it appears from the
nature of the matter or the circumstances of its dissemination,
distribution or exhibition that it is designed for specially
susceptible groups, in which case the predominant appeal of the
material shall be judged with reference to its intended or
probable recipient group.
    In prosecutions under this section, where circumstances of
production, presentation, sale, dissemination, distribution,
or publicity indicate the material is being commercially
exploited for the sake of its prurient appeal, such evidence is
probative with respect to the nature of the material and can
justify the conclusion that the redeeming social importance of
the material is in fact substantially less than its prurient
appeal.
    (d) Sentence.
    Distribution of harmful material in violation of this
Section is a Class A misdemeanor. A second or subsequent
offense is a Class 4 felony.
    (e) Affirmative Defenses.
    (1) Nothing in this section shall prohibit any public
library or any library operated by an accredited institution of
higher education from circulating harmful material to any
person under 18 years of age, provided such circulation is in
aid of a legitimate scientific or educational purpose, and it
shall be an affirmative defense in any prosecution for a
violation of this section that the act charged was committed in
aid of legitimate scientific or educational purposes.
    (2) Nothing in this section shall prohibit any parent from
distributing to his child any harmful material.
    (3) Proof that the defendant demanded, was shown and acted
in reliance upon any of the following documents as proof of the
age of a child, shall be a defense to any criminal prosecution
under this section: A document issued by the federal government
or any state, county or municipal government or subdivision or
agency thereof, including, but not limited to, a motor vehicle
operator's license, a registration certificate issued under
the Federal Selective Service Act or an identification card
issued to a member of the armed forces.
    (4) In the event an advertisement of harmful material as
defined in this section culminates in the sale or distribution
of such harmful material to a child, under circumstances where
there was no personal confrontation of the child by the
defendant, his employees or agents, as where the order or
request for such harmful material was transmitted by mail,
telephone, or similar means of communication, and delivery of
such harmful material to the child was by mail, freight, or
similar means of transport, it shall be a defense in any
prosecution for a violation of this section that the
advertisement contained the following statement, or a
statement substantially similar thereto, and that the
defendant required the purchaser to certify that he was not
under 18 years of age and that the purchaser falsely stated
that he was not under 18 years of age: "NOTICE: It is unlawful
for any person under 18 years of age to purchase the matter
herein advertised. Any person under 18 years of age who falsely
states that he is not under 18 years of age for the purpose of
obtaining the material advertised herein, is guilty of a Class
B misdemeanor under the laws of the State of Illinois."
    (f) Child Falsifying Age.
    Any person under 18 years of age who falsely states, either
orally or in writing, that he is not under the age of 18 years,
or who presents or offers to any person any evidence of age and
identity which is false or not actually his own for the purpose
of ordering, obtaining, viewing, or otherwise procuring or
attempting to procure or view any harmful material, is guilty
of a Class B misdemeanor.
(Source: P.A. 77-2638.)
 
    (720 ILCS 5/Art. 12A heading new)
ARTICLE 12A. VIOLENT VIDEO GAMES

 
    (720 ILCS 5/12A-1 new)
    Sec. 12A-1. Short title. This Article may be cited as the
Violent Video Games Law.
 
    (720 ILCS 5/12A-5 new)
    Sec. 12A-5. Findings.
    (a) The General Assembly finds that minors who play violent
video games are more likely to:
        (1) Exhibit violent, asocial, or aggressive behavior.
        (2) Experience feelings of aggression.
        (3) Experience a reduction of activity in the frontal
    lobes of the brain which is responsible for controlling
    behavior.
    (b) While the video game industry has adopted its own
voluntary standards describing which games are appropriate for
minors, those standards are not adequately enforced.
    (c) Minors are capable of purchasing and do purchase
violent video games.
    (d) The State has a compelling interest in assisting
parents in protecting their minor children from violent video
games.
    (e) The State has a compelling interest in preventing
violent, aggressive, and asocial behavior.
    (f) The State has a compelling interest in preventing
psychological harm to minors who play violent video games.
    (g) The State has a compelling interest in eliminating any
societal factors that may inhibit the physiological and
neurological development of its youth.
    (h) The State has a compelling interest in facilitating the
maturation of Illinois' children into law-abiding, productive
adults.
 
    (720 ILCS 5/12A-10 new)
    Sec. 12A-10. Definitions. For the purposes of this Article,
the following terms have the following meanings:
    (a) "Video game retailer" means a person who sells or rents
video games to the public.
    (b) "Video game" means an object or device that stores
recorded data or instructions, receives data or instructions
generated by a person who uses it, and, by processing the data
or instructions, creates an interactive game capable of being
played, viewed, or experienced on or through a computer, gaming
system, console, or other technology.
    (c) "Minor" means a person under 18 years of age.
    (d) "Person" includes but is not limited to an individual,
corporation, partnership, and association.
    (e) "Violent" video games include depictions of or
simulations of human-on-human violence in which the player
kills or otherwise causes serious physical harm to another
human. "Serious physical harm" includes depictions of death,
dismemberment, amputation, decapitation, maiming,
disfigurement, mutilation of body parts, or rape.
 
    (720 ILCS 5/12A-15 new)
    Sec. 12A-15. Restricted sale or rental of violent video
games.
    (a) A person who sells, rents, or permits to be sold or
rented, any violent video game to any minor, commits a petty
offense for which a fine of $1,000 may be imposed.
    (b) A person who sells, rents, or permits to be sold or
rented any violent video game via electronic scanner must
program the electronic scanner to prompt sales clerks to check
identification before the sale or rental transaction is
completed. A person who violates this subsection (b) commits a
petty offense for which a fine of $1,000 may be imposed.
    (c) A person may not sell or rent, or permit to be sold or
rented, any violent video game through a self-scanning checkout
mechanism. A person who violates this subsection (c) commits a
petty offense for which a fine of $1,000 may be imposed.
    (d) A retail sales clerk shall not be found in violation of
this Section unless he or she has complete knowledge that the
party to whom he or she sold or rented a violent video game was
a minor and the clerk sold or rented the video game to the
minor with the specific intent to do so.
 
    (720 ILCS 5/12A-20 new)
    Sec. 12A-20. Affirmative defenses. In any prosecution
arising under this Article, it is an affirmative defense:
    (1) that the defendant was a family member of the minor for
whom the video game was purchased. "Family member" for the
purpose of this Section, includes a parent, sibling,
grandparent, aunt, uncle, or first cousin;
    (2) that the minor who purchased the video game exhibited a
draft card, driver's license, birth certificate or other
official or apparently official document purporting to
establish that the minor was 18 years of age or older, which
the defendant reasonably relied on and reasonably believed to
be authentic;
    (3) for the video game retailer, if the retail sales clerk
had complete knowledge that the party to whom he or she sold or
rented a violent video game was a minor and the clerk sold or
rented the video game to the minor with the specific intent to
do so; or
    (4) that the video game sold or rented was pre-packaged and
rated EC, E10+, E, or T by the Entertainment Software Ratings
Board.
 
    (720 ILCS 5/12A-25 new)
    Sec. 12A-25. Labeling of violent video games.
    (a) Video game retailers shall label all violent video
games as defined in this Article, with a solid white "18"
outlined in black. The "18" shall have dimensions of no less
than 2 inches by 2 inches. The "18" shall be displayed on the
front face of the video game package.
    (b) A retailer's failure to comply with this Section is a
petty offense punishable by a fine of $500 for the first 3
violations, and $1,000 for every subsequent violation.
 
    (720 ILCS 5/Art. 12B heading new)
ARTICLE 12B. SEXUALLY EXPLICIT VIDEO GAMES

 
    (720 ILCS 5/12B-1 new)
    Sec. 12B-1. Short title. This Article may be cited as the
Sexually Explicit Video Games Law.
 
    (720 ILCS 5/12B-5 new)
    Sec. 12B-5. Findings. The General Assembly finds sexually
explicit video games inappropriate for minors and that the
State has a compelling interest in assisting parents in
protecting their minor children from sexually explicit video
games.
 
    (720 ILCS 5/12B-10 new)
    Sec. 12B-10. Definitions. For the purposes of this Article,
the following terms have the following meanings:
    (a) "Video game retailer" means a person who sells or rents
video games to the public.
    (b) "Video game" means an object or device that stores
recorded data or instructions, receives data or instructions
generated by a person who uses it, and, by processing the data
or instructions, creates an interactive game capable of being
played, viewed, or experienced on or through a computer, gaming
system, console, or other technology.
    (c) "Minor" means a person under 18 years of age.
    (d) "Person" includes but is not limited to an individual,
corporation, partnership, and association.
    (e) "Sexually explicit" video games include those that the
average person, applying contemporary community standards
would find, with respect to minors, is designed to appeal or
pander to the prurient interest and depict or represent in a
manner patently offensive with respect to minors, an actual or
simulated sexual act or sexual contact, an actual or simulated
normal or perverted sexual act or a lewd exhibition of the
genitals or post-pubescent female breast.
 
    (720 ILCS 5/12B-15 new)
    Sec. 12B-15. Restricted sale or rental of sexually explicit
video games.
    (a) A person who sells, rents, or permits to be sold or
rented, any sexually explicit video game to any minor, commits
a petty offense for which a fine of $1,000 may be imposed.
    (b) A person who sells, rents, or permits to be sold or
rented any sexually explicit video game via electronic scanner
must program the electronic scanner to prompt sales clerks to
check identification before the sale or rental transaction is
completed. A person who violates this subsection (b) commits a
petty offense for which a fine of $1,000 may be imposed.
    (c) A person may not sell or rent, or permit to be sold or
rented, any sexually explicit video game through a
self-scanning checkout mechanism. A person who violates this
subsection (c) commits a petty offense for which a fine of
$1,000 may be imposed.
    (d) A retail sales clerk shall not be found in violation of
this Section unless he or she has complete knowledge that the
party to whom he or she sold or rented a sexually explicit
video game was a minor and the clerk sold or rented the video
game to the minor with the specific intent to do so.
 
    (720 ILCS 5/12B-20 new)
    Sec. 12B-20. Affirmative defenses. In any prosecution
arising under this Article, it is an affirmative defense:
    (1) that the defendant was a family member of the minor for
whom the video game was purchased. "Family member" for the
purpose of this Section, includes a parent, sibling,
grandparent, aunt, uncle, or first cousin;
    (2) that the minor who purchased the video game exhibited a
draft card, driver's license, birth certificate or other
official or apparently official document purporting to
establish that the minor was 18 years of age or older, which
the defendant reasonably relied on and reasonably believed to
be authentic;
    (3) for the video game retailer, if the retail sales clerk
had complete knowledge that the party to whom he or she sold or
rented a violent video game was a minor and the clerk sold or
rented the video game to the minor with the specific intent to
do so; or
    (4) that the video game sold or rented was pre-packaged and
rated EC, E10+, E, or T by the Entertainment Software Ratings
Board.
 
    (720 ILCS 5/12B-25 new)
    Sec. 12B-25. Labeling of sexually explicit video games.
    (a) Video game retailers shall label all sexually explicit
video games as defined in this Act, with a solid white "18"
outlined in black. The "18" shall have dimensions of no less
than 2 inches by 2 inches. The "18" shall be displayed on the
front face of the video game package.
    (b) A retailer who fails to comply with this Section is
guilty of a petty offense punishable by a fine of $500 for the
first 3 violations, and $1,000 for every subsequent violation.
 
    (720 ILCS 5/12B-30 new)
    Sec. 12B-30. Posting notification of video games rating
system.
    (a) A retailer who sells or rents video games shall post a
sign that notifies customers that a video game rating system,
created by the Entertainment Software Ratings Board, is
available to aid in the selection of a game. The sign shall be
prominently posted in, or within 5 feet of, the area in which
games are displayed for sale or rental, at the information desk
if one exists, and at the point of purchase.
    (b) The lettering of each sign shall be printed, at a
minimum, in 36-point type and shall be in black ink against a
light colored background, with dimensions of no less than 18 by
24 inches.
    (c) A retailer's failure to comply with this Section is a
petty offense punishable by a fine of $500 for the first 3
violations, and $1,000 for every subsequent violation.
 
    (720 ILCS 5/12B-35 new)
    Sec. 12B-35. Availability of brochure describing rating
system.
    (a) A video game retailer shall make available upon request
a brochure to customers that explains the Entertainment
Software Ratings Board ratings system.
    (b) A retailer who fails to comply with this Section shall
receive the punishment described in subsection (b) of Section
12B-25.
 
    Section 98. Severability. If any provision of this Act or
the application thereof to any person or circumstance is held
invalid, the remainder of this Act and the application of such
provision to other persons or circumstances shall not be
affected thereby.
 
    Section 99. Effective Date. This Act takes effect January
1, 2006.

Effective Date: 1/1/2006