[ Home ] [ ILCS ] [ Search ] [ Bottom ]
[ Other General Assemblies ]
Public Act 91-0229
HB1100 Enrolled LRB9101204RCpk
AN ACT to amend the Criminal Code of 1961 by changing
Sections 11-20.1 and 11-20.1A.
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 Sections 11-20.1 and 11-20.1A 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) (Blank).
(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.
(5) The charge of child pornography does not apply
to a person who does not voluntarily possess a film,
videotape, or visual reproduction or depiction by
computer in which child pornography is depicted.
Possession is voluntary if the defendant knowingly
procures or receives a film, videotape, or visual
reproduction or depiction for a sufficient time to be
able to terminate his or her possession.
(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.
(7) "Child" includes a film, videotape, photograph,
or other similar visual medium or reproduction or
depiction by computer that is, or appears to be, that of
a person, either in part, or in total, under the age of
18, regardless of the method by which the film,
videotape, photograph, or other similar visual medium or
reproduction or depiction by computer is created,
adopted, or modified to appear as such. "Child" also
includes a film, videotape, photograph, or other similar
visual medium or reproduction or depiction by computer
that is advertised, promoted, presented, described, or
distributed in such a manner that conveys the impression
that the film, videotape, photograph, or other similar
visual medium or reproduction or depiction by computer is
of a person under the age of 18.
(Source: P.A. 90-68, eff. 7-8-97; 90-678, eff. 7-31-98;
90-786, eff. 1-1-99; revised 9-16-98.)
(720 ILCS 5/11-20.1A) (from Ch. 38, par. 11-20.1A)
Sec. 11-20.1A. (a) A person who commits the offense of
keeping a place of juvenile prostitution, exploitation of a
child or child pornography under Sections 11-17.1, 11-19.2 or
11-20.1 of this Code, shall forfeit to the State of Illinois:
(1) any profits or proceeds and any interest or property
he has acquired or maintained in violation of Sections
11-17.1, 11-19.2 or 11-20.1 of this Code that the sentencing
court determines, after a forfeiture hearing, to have been
acquired or maintained as a result of keeping a place of
juvenile prostitution, exploitation of a child or child
pornography; and
(2) any interest in, security of, claim against, or
property or contractual right of any kind affording a source
of influence over, any enterprise which he has established,
operated, controlled or conducted in violation of Sections
11-17.1, 11-19.2 or 11-20.1 of this Code that the sentencing
court determines, after a forfeiture hearing, to have been
acquired or maintained as a result of keeping a place of
juvenile prostitution, exploitation of a child or child
pornography.
(b) (1) The court shall, upon petition by the Attorney
General or State's Attorney at any time following sentencing,
conduct a hearing to determine whether any property or
property interest is subject to forfeiture under this
Section. At the forfeiture hearing the people shall have the
burden of establishing, by a preponderance of the evidence,
that property or property interests are subject to forfeiture
under this Section.
(2) In any action brought by the People of the State of
Illinois under this Section, wherein any restraining order,
injunction or prohibition or any other action in connection
with any property or interest subject to forfeiture under
this Section is sought, the circuit court presiding over the
trial of the person or persons charged with keeping a place
of juvenile prostitution, exploitation of a child or child
pornography shall first determine whether there is probable
cause to believe that the person or persons so charged have
committed the offense of keeping a place of juvenile
prostitution, exploitation of a child or child pornography
and whether the property or interest is subject to forfeiture
pursuant to this Section. In order to make such a
determination, prior to entering any such order, the court
shall conduct a hearing without a jury, wherein the People
shall establish that there is: (i) probable cause that the
person or persons so charged have committed the offense of
keeping a place of juvenile prostitution, exploitation of a
child or child pornography and (ii) probable cause that any
property or interest may be subject to forfeiture pursuant to
this Section. Such hearing may be conducted simultaneously
with a preliminary hearing, if the prosecution is commenced
by information or complaint, or by motion of the People, at
any stage in the proceedings. The court may accept a finding
of probable cause at a preliminary hearing following the
filing of an information charging the offense of keeping a
place of juvenile prostitution, exploitation of a child or
child pornography or the return of an indictment by a grand
jury charging the offense of keeping a place of juvenile
prostitution, exploitation of a child or child pornography as
sufficient evidence of probable cause as provided in item (i)
above. Upon such a finding, the circuit court shall enter
such restraining order, injunction or prohibition, or shall
take such other action in connection with any such property
or other interest subject to forfeiture, as is necessary to
insure that such property is not removed from the
jurisdiction of the court, concealed, destroyed or otherwise
disposed of by the owner of that property or interest prior
to a forfeiture hearing under this Section. The Attorney
General or State's Attorney shall file a certified copy of
such restraining order, injunction or other prohibition with
the recorder of deeds or registrar of titles of each county
where any such property of the defendant may be located. No
such injunction, restraining order or other prohibition shall
affect the rights of any bona fide purchaser, mortgagee,
judgment creditor or other lienholder arising prior to the
date of such filing. The court may, at any time, upon
verified petition by the defendant or an innocent owner or
innocent bona fide third party lienholder who neither had
knowledge of, nor consented to, the illegal act or omission,
conduct a hearing to release all or portions of any such
property or interest which the court previously determined to
be subject to forfeiture or subject to any restraining order,
injunction, or prohibition or other action. The court may
release such property to the defendant or innocent owner or
innocent bona fide third party lienholder who neither had
knowledge of, nor consented to, the illegal act or omission
for good cause shown and within the sound discretion of the
court.
A forfeiture under this Section may be commenced by the
Attorney General or a State's Attorney.
(3) Upon conviction of a person of keeping a place of
juvenile prostitution, exploitation of a child or child
pornography, the court shall authorize the Attorney General
to seize all property or other interest declared forfeited
under this Section upon such terms and conditions as the
court shall deem proper.
(4) The Attorney General is authorized to sell all
property forfeited and seized pursuant to this Section,
unless such property is required by law to be destroyed or is
harmful to the public, and, after the deduction of all
requisite expenses of administration and sale, shall
distribute the proceeds of such sale, along with any moneys
forfeited or seized, in accordance with subsection (c) of
this Section.
(c) All monies forfeited and the sale proceeds of all
other property forfeited and seized under this Section shall
be distributed as follows:
(1) One-half shall be divided equally among all State
agencies and units of local government whose officers or
employees conducted the investigation which resulted in the
forfeiture; and
(2) One-half shall be deposited in the Violent Crime
Victims Assistance Fund.
(Source: P.A. 85-1194.)
[ Top ]