Public Act 90-0786 of the 90th General Assembly
Public Act 90-0786
SB1505 Enrolled LRB9007343RCsbA
AN ACT concerning evidence.
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 11-20.1 as follows:
(720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
Sec. 11-20.1. Child pornography.
(a) A person commits the offense of child pornography
who:
(1) films, videotapes, photographs, or otherwise
depicts or portrays by means of any similar visual medium
or reproduction or depicts by computer any child whom he
knows or reasonably should know to be under the age of 18
or any institutionalized severely or profoundly mentally
retarded person where such child or institutionalized
severely or profoundly mentally retarded person is:
(i) actually or by simulation engaged in any
act of sexual intercourse with any person or animal;
or
(ii) actually or by simulation engaged in any
act of sexual contact involving the sex organs of
the child or institutionalized severely or
profoundly mentally retarded person and the mouth,
anus, or sex organs of another person or animal; or
which involves the mouth, anus or sex organs of the
child or institutionalized severely or profoundly
mentally retarded person and the sex organs of
another person or animal; or
(iii) actually or by simulation engaged in any
act of masturbation; or
(iv) actually or by simulation portrayed as
being the object of, or otherwise engaged in, any
act of lewd fondling, touching, or caressing
involving another person or animal; or
(v) actually or by simulation engaged in any
act of excretion or urination within a sexual
context; or
(vi) actually or by simulation portrayed or
depicted as bound, fettered, or subject to sadistic,
masochistic, or sadomasochistic abuse in any sexual
context; or
(vii) depicted or portrayed in any pose,
posture or setting involving a lewd exhibition of
the unclothed genitals, pubic area, buttocks, or, if
such person is female, a fully or partially
developed breast of the child or other person; or
(2) with the knowledge of the nature or content
thereof, reproduces, disseminates, offers to disseminate,
exhibits or possesses with intent to disseminate any
film, videotape, photograph or other similar visual
reproduction or depiction by computer of any child or
institutionalized severely or profoundly mentally
retarded person whom the person knows or reasonably
should know to be under the age of 18 or to be an
institutionalized severely or profoundly mentally
retarded person, engaged in any activity described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection; or
(3) with knowledge of the subject matter or theme
thereof, produces any stage play, live performance, film,
videotape or other similar visual portrayal or depiction
by computer which includes a child whom the person knows
or reasonably should know to be under the age of 18 or an
institutionalized severely or profoundly mentally
retarded person engaged in any activity described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection; or
(4) solicits, uses, persuades, induces, entices, or
coerces any child whom he knows or reasonably should know
to be under the age of 18 or an institutionalized
severely or profoundly mentally retarded person to appear
in any stage play, live presentation, film, videotape,
photograph or other similar visual reproduction or
depiction by computer in which the child or
institutionalized severely or profoundly mentally
retarded person is or will be depicted, actually or by
simulation, in any act, pose or setting described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection; or
(5) is a parent, step-parent, legal guardian or
other person having care or custody of a child whom the
person knows or reasonably should know to be under the
age of 18 or an institutionalized severely or profoundly
mentally retarded person and who knowingly permits,
induces, promotes, or arranges for such child or
institutionalized severely or profoundly mentally
retarded person to appear in any stage play, live
performance, film, videotape, photograph or other similar
visual presentation, portrayal or simulation or depiction
by computer of any act or activity described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection; or
(6) with knowledge of the nature or content
thereof, possesses any film, videotape, photograph or
other similar visual reproduction or depiction by
computer of any child or institutionalized severely or
profoundly mentally retarded person whom the person knows
or reasonably should know to be under the age of 18 or to
be an institutionalized severely or profoundly mentally
retarded person, engaged in any activity described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection; or
(7) solicits, uses, persuades, induces, entices, or
coerces a person to provide a child under the age of 18
or an institutionalized severely or profoundly mentally
retarded person to appear in any videotape, photograph,
film, stage play, live presentation, or other similar
visual reproduction or depiction by computer in which the
child or an institutionalized severely or profoundly
mentally retarded person will be depicted, actually or by
simulation, in any act, pose, or setting described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection.
(b) (1) It shall be an affirmative defense to a charge
of child pornography that the defendant reasonably believed,
under all of the circumstances, that the child was 18 years
of age or older or that the person was not an
institutionalized severely or profoundly mentally retarded
person but only where, prior to the act or acts giving rise
to a prosecution under this Section, he took some affirmative
action or made a bonafide inquiry designed to ascertain
whether the child was 18 years of age or older or that the
person was not an institutionalized severely or profoundly
mentally retarded person and his reliance upon the
information so obtained was clearly reasonable.
(2) It shall be an affirmative defense to a charge of
child pornography that the defendant was employed by a public
library or any library operated by an institution accredited
by a generally recognized accrediting agency, at the time the
act leading to the charge of child pornography took place and
such act was committed during the course of employment.
(3) The charge of child pornography shall not apply to
the performance of official duties by law enforcement or
prosecuting officers, court personnel or attorneys, nor to
bonafide treatment or professional education programs
conducted by licensed physicians, psychologists or social
workers.
(4) Possession by the defendant of more than one of the
same film, videotape or visual reproduction or depiction by
computer in which child pornography is depicted shall raise a
rebuttable presumption that the defendant possessed such
materials with the intent to disseminate them.
(c) Violation of paragraph (1), (4), (5), or (7) of
subsection (a) is a Class 1 felony with a mandatory minimum
fine of $2,000 and a maximum fine of $100,000. Violation of
paragraph (3) of subsection (a) is a Class 1 felony with a
mandatory minimum fine of $1500 and a maximum fine of
$100,000. Violation of paragraph (2) of subsection (a) is a
Class 1 felony with a mandatory minimum fine of $1000 and a
maximum fine of $100,000. Violation of paragraph (6) of
subsection (a) is a Class 3 felony with a mandatory minimum
fine of $1000 and a maximum fine of $100,000.
(d) If a person is convicted of a second or subsequent
violation of this Section within 10 years of a prior
conviction, the court shall order a presentence psychiatric
examination of the person. The examiner shall report to the
court whether treatment of the person is necessary.
(e) Any film, videotape, photograph or other similar
visual reproduction or depiction by computer which includes a
child under the age of 18 or an institutionalized severely or
profoundly mentally retarded person engaged in any activity
described in subparagraphs (i) through (vii) or paragraph 1
of subsection (a), and any material or equipment used or
intended for use in photographing, filming, printing,
producing, reproducing, manufacturing, projecting,
exhibiting, depiction by computer, or disseminating such
material shall be seized and forfeited in the manner, method
and procedure provided by Section 36-1 of this Code for the
seizure and forfeiture of vessels, vehicles and aircraft.
(e-5) Upon the conclusion of a case brought under this
Section, the court shall seal all evidence depicting a victim
or witness that is sexually explicit. The evidence may be
unsealed and viewed, on a motion of the party seeking to
unseal and view the evidence, only for good cause shown and
in the discretion of the court. The motion must expressly
set forth the purpose for viewing the material. The State's
attorney and the victim, if possible, shall be provided
reasonable notice of the hearing on the motion to unseal the
evidence. Any person entitled to notice of a hearing under
this subsection (e-5) may object to the motion.
(f) Definitions. For the purposes of this Section:
(1) "Disseminate" means (i) to sell, distribute,
exchange or transfer possession, whether with or without
consideration or (ii) to make a depiction by computer
available for distribution or downloading through the
facilities of any telecommunications network or through
any other means of transferring computer programs or data
to a computer;
(2) "Produce" means to direct, promote, advertise,
publish, manufacture, issue, present or show;
(3) "Reproduce" means to make a duplication or
copy;
(4) "Depict by computer" means to generate or
create, or cause to be created or generated, a computer
program or data that, after being processed by a computer
either alone or in conjunction with one or more computer
programs, results in a visual depiction on a computer
monitor, screen, or display.
(5) "Depiction by computer" means a computer
program or data that, after being processed by a computer
either alone or in conjunction with one or more computer
programs, results in a visual depiction on a computer
monitor, screen, or display.
(6) "Computer", "computer program", and "data" have
the meanings ascribed to them in Section 16D-2 of this
Code.
(Source: P.A. 90-68, eff. 7-8-97.)
Section 10. The Code of Criminal Procedure of 1963 is
amended by changing Section 115-10 as follows:
(725 ILCS 5/115-10) (from Ch. 38, par. 115-10)
Sec. 115-10. Certain hearsay exceptions.
(a) In a prosecution for a physical or sexual act
perpetrated upon or against a child under the age of 13, or a
person who was an institutionalized severely or profoundly
mentally retarded person as defined in Section 2-10.1 of the
Criminal Code of 1961 at the time the act was committed,
including but not limited to prosecutions for violations of
Sections 12-13 through 12-16 of the Criminal Code of 1961 and
prosecutions for violations of Sections 10-1, 10-2, 10-3,
10-3.1, 10-4, 10-5, 10-6, 10-7, 11-6, 11-9, 11-11, 11-15.1,
11-17.1, 11-18.1, 11-19.1, 11-19.2, 11-20.1, 11-21, 12-1,
12-2, 12-3, 12-3.2, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-4.7,
12-5, 12-6, 12-6.1, 12-7.1, 12-7.3, 12-7.4, 12-10, 12-11,
12-21.5, 12-21.6 and 12-32 of the Criminal Code of 1961, the
following evidence shall be admitted as an exception to the
hearsay rule:
(1) testimony by the victim such child or
institutionalized severely or profoundly mentally
retarded person, of an out of court statement made by the
victim such child or institutionalized severely or
profoundly mentally retarded person, that he or she
complained of such act to another; and
(2) testimony of an out of court statement made by
the victim such child or institutionalized severely or
profoundly mentally retarded person, describing any
complaint of such act or matter or detail pertaining to
any act which is an element of an offense which is the
subject of a prosecution for a sexual or physical act
against that victim perpetrated upon or against a child
or institutionalized severely or profoundly mentally
retarded person.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside
the presence of the jury that the time, content, and
circumstances of the statement provide sufficient
safeguards of reliability; and
(2) The child or institutionalized severely or
profoundly mentally retarded person either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is the
subject of the statement; and .
(3) In a case involving an offense perpetrated
against a child under the age of 13, the out of court
statement was made before the victim attained 13 years of
age or within 3 months after the commission of the
offense, whichever occurs later, but the statement may be
admitted regardless of the age of the victim at the time
of the proceeding.
(c) If a statement is admitted pursuant to this Section,
the court shall instruct the jury that it is for the jury to
determine the weight and credibility to be given the
statement and that, in making the determination, it shall
consider the age and maturity of the child, or the
intellectual capabilities of the institutionalized severely
or profoundly mentally retarded person, the nature of the
statement, the circumstances under which the statement was
made, and any other relevant factor.
(d) The proponent of the statement shall give the
adverse party reasonable notice of his intention to offer the
statement and the particulars of the statement.
(Source: P.A. 88-166; 88-479; 88-670, eff. 12-2-94.)