102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB4657

 

Introduced 1/21/2022, by Rep. Tony McCombie

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/11-9.1  from Ch. 38, par. 11-9.1
720 ILCS 5/11-21  from Ch. 38, par. 11-21

    Amends the Criminal Code of 2012. Provides that a person also commits sexual exploitation of a child when he or she knowingly entices, coerces, or persuades a child to participate in the production of the recording or memorializing a sexual act. Provides that a violation is a Class 4 felony for a first offense and a Class 3 felony for a second or subsequent offense or if the person has been previously convicted of a sex offense. Provides that a person also commits distributing harmful material when he or she knowingly entices, coerces, or persuades a minor to participate in the production of the recording or memorializing a sexual act. Provides that a violation is a Class 4 felony if the person has been previously convicted of a sex offense. Provides that a second or subsequent violation is a Class 3 felony.


LRB102 22863 RLC 33318 b

 

 

A BILL FOR

 

HB4657LRB102 22863 RLC 33318 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 2012 is amended by
5changing Sections 11-9.1 and 11-21 as follows:
 
6    (720 ILCS 5/11-9.1)  (from Ch. 38, par. 11-9.1)
7    Sec. 11-9.1. Sexual exploitation of a child.
8    (a) A person commits sexual exploitation of a child if in
9the presence or virtual presence, or both, of a child and with
10knowledge that a child or one whom he or she believes to be a
11child would view his or her acts, that person:
12        (1) engages in a sexual act; or
13        (2) exposes his or her sex organs, anus or breast for
14    the purpose of sexual arousal or gratification of such
15    person or the child or one whom he or she believes to be a
16    child; or .
17        (3) knowingly entices, coerces, or persuades a child
18    to participate in the production of the recording or
19    memorializing a sexual act.
20    (a-5) A person commits sexual exploitation of a child who
21knowingly entices, coerces, or persuades a child to remove the
22child's clothing for the purpose of sexual arousal or
23gratification of the person or the child, or both.

 

 

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1    (b) Definitions. As used in this Section:
2    "Sexual act" means masturbation, sexual conduct or sexual
3penetration as defined in Section 11-0.1 of this Code.
4    "Sex offense" means any violation of Article 11 of this
5Code.
6    "Child" means a person under 17 years of age.
7    "Virtual presence" means an environment that is created
8with software and presented to the user and or receiver via the
9Internet, in such a way that the user appears in front of the
10receiver on the computer monitor or screen or hand-held
11portable electronic device, usually through a web camming
12program. "Virtual presence" includes primarily experiencing
13through sight or sound, or both, a video image that can be
14explored interactively at a personal computer or hand-held
15communication device, or both.
16    "Webcam" means a video capturing device connected to a
17computer or computer network that is designed to take digital
18photographs or live or recorded video which allows for the
19live transmission to an end user over the Internet.
20    (c) Sentence.
21        (1) Sexual exploitation of a child is a Class A
22    misdemeanor. A second or subsequent violation of this
23    Section or a substantially similar law of another state is
24    a Class 4 felony.
25        (2) Sexual exploitation of a child is a Class 4 felony
26    if the person has been previously convicted of a sex

 

 

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1    offense.
2        (3) Sexual exploitation of a child is a Class 4 felony
3    if the victim was under 13 years of age at the time of the
4    commission of the offense.
5        (4) Sexual exploitation of a child is a Class 4 felony
6    if committed by a person 18 years of age or older who is on
7    or within 500 feet of elementary or secondary school
8    grounds when children are present on the grounds.
9        (5) A violation of paragraph (3) of subsection (a) is:
10    a Class 4 felony for a first offense; and a Class 3 felony
11    for a second or subsequent offense, or if the person has
12    been previously convicted of a sex offense.
13
14(Source: P.A. 102-168, eff. 7-27-21.)
 
15    (720 ILCS 5/11-21)  (from Ch. 38, par. 11-21)
16    Sec. 11-21. Harmful material.
17    (a) As used in this Section:
18        "Distribute" means to transfer possession of, whether
19    with or without consideration.
20        "Harmful to minors" means that quality of any
21    description or representation, in whatever form, of
22    nudity, sexual conduct, sexual excitement, or
23    sado-masochistic abuse, when, taken as a whole, it (i)
24    predominantly predominately appeals to the prurient
25    interest in sex of minors, (ii) is patently offensive to

 

 

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1    prevailing standards in the adult community in the State
2    as a whole with respect to what is suitable material for
3    minors, and (iii) lacks serious literary, artistic,
4    political, or scientific value for minors.
5        "Knowingly" means having knowledge of the contents of
6    the subject matter, or recklessly failing to exercise
7    reasonable inspection which would have disclosed the
8    contents.
9        "Material" means (i) any picture, photograph, drawing,
10    sculpture, film, video game, computer game, video or
11    similar visual depiction, including any such
12    representation or image which is stored electronically, or
13    (ii) any book, magazine, printed matter however
14    reproduced, or recorded audio of any sort.
15        "Minor" means any person under the age of 18.
16        "Nudity" means the showing of the human male or female
17    genitals, pubic area or buttocks with less than a fully
18    opaque covering, or the showing of the female breast with
19    less than a fully opaque covering of any portion below the
20    top of the nipple, or the depiction of covered male
21    genitals in a discernibly turgid state.
22        "Sado-masochistic abuse" means flagellation or torture
23    by or upon a person clad in undergarments, a mask or
24    bizarre costume, or the condition of being fettered, bound
25    or otherwise physically restrained on the part of one
26    clothed for sexual gratification or stimulation.

 

 

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1        "Sexual conduct" means acts of masturbation, sexual
2    intercourse, or physical contact with a person's clothed
3    or unclothed genitals, pubic area, buttocks or, if such
4    person be a female, breast.
5        "Sexual excitement" means the condition of human male
6    or female genitals when in a state of sexual stimulation
7    or arousal.
8        "Sex offense" and "sexual act" have the meanings
9    ascribed to them in Section 11-9.1.
10    (b) A person is guilty of distributing harmful material to
11a minor when he or she:
12        (1) knowingly sells, lends, distributes, exhibits to,
13    depicts to, or gives away to a minor, knowing that the
14    minor is under the age of 18 or failing to exercise
15    reasonable care in ascertaining the person's true age:
16            (A) any material which depicts nudity, sexual
17        conduct or sado-masochistic abuse, or which contains
18        explicit and detailed verbal descriptions or narrative
19        accounts of sexual excitement, sexual conduct or
20        sado-masochistic abuse, and which taken as a whole is
21        harmful to minors;
22            (B) a motion picture, show, or other presentation
23        which depicts nudity, sexual conduct or
24        sado-masochistic abuse and is harmful to minors; or
25            (C) an admission ticket or pass to premises where
26        there is exhibited or to be exhibited such a motion

 

 

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1        picture, show, or other presentation; or
2        (2) admits a minor to premises where there is
3    exhibited or to be exhibited such a motion picture, show,
4    or other presentation, knowing that the minor is a person
5    under the age of 18 or failing to exercise reasonable care
6    in ascertaining the person's true age; or .
7        (3) knowingly entices, coerces, or persuades a minor
8    to participate in the production of the recording or
9    memorializing a sexual act.
10    (c) In any prosecution arising under this Section, it is
11an affirmative defense:
12        (1) that the minor as to whom the offense is alleged to
13    have been committed exhibited to the accused a draft card,
14    driver's license, birth certificate or other official or
15    apparently official document purporting to establish that
16    the minor was 18 years of age or older, which was relied
17    upon by the accused;
18        (2) that the defendant was in a parental or
19    guardianship relationship with the minor or that the minor
20    was accompanied by a parent or legal guardian;
21        (3) that the defendant was a bona fide school, museum,
22    or public library, or was a person acting in the course of
23    his or her employment as an employee or official of such
24    organization or retail outlet affiliated with and serving
25    the educational purpose of such organization;
26        (4) that the act charged was committed in aid of

 

 

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1    legitimate scientific or educational purposes; or
2        (5) that an advertisement of harmful material as
3    defined in this Section culminated in the sale or
4    distribution of such harmful material to a child under
5    circumstances where there was no personal confrontation of
6    the child by the defendant, his or her employees, or
7    agents, as where the order or request for such harmful
8    material was transmitted by mail, telephone, Internet or
9    similar means of communication, and delivery of such
10    harmful material to the child was by mail, freight,
11    Internet or similar means of transport, which
12    advertisement contained the following statement, or a
13    substantially similar statement, and that the defendant
14    required the purchaser to certify that he or she was not
15    under the age of 18 and that the purchaser falsely stated
16    that he or she was not under the age of 18: "NOTICE: It is
17    unlawful for any person under the age of 18 to purchase the
18    matter advertised. Any person under the age of 18 that
19    falsely states that he or she is not under the age of 18
20    for the purpose of obtaining the material advertised is
21    guilty of a Class B misdemeanor under the laws of the
22    State."
23    (d) The predominant appeal to prurient interest of the
24material shall be judged with reference to average children of
25the same general age of the child to whom such material was
26sold, lent, distributed or given, unless it appears from the

 

 

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1nature of the matter or the circumstances of its dissemination
2or distribution that it is designed for specially susceptible
3groups, in which case the predominant appeal of the material
4shall be judged with reference to its intended or probable
5recipient group.
6    (e) Distribution of harmful material in violation of this
7Section is a Class A misdemeanor. A second or subsequent
8offense is a Class 4 felony. A violation of paragraph (3) of
9subsection (b) is a Class 4 felony if the person has been
10previously convicted of a sex offense. A second or subsequent
11violation of paragraph (3) of subsection (b) is a Class 3
12felony.
13    (f) Any person under the age of 18 who falsely states,
14either orally or in writing, that he or she is not under the
15age of 18, or who presents or offers to any person any evidence
16of age and identity that is false or not actually his or her
17own with the intent of ordering, obtaining, viewing, or
18otherwise procuring or attempting to procure or view any
19harmful material is guilty of a Class B misdemeanor.
20    (g) A person over the age of 18 who fails to exercise
21reasonable care in ascertaining the true age of a minor,
22knowingly distributes to, or sends, or causes to be sent, or
23exhibits to, or offers to distribute, or exhibits any harmful
24material to a person that he or she believes is a minor is
25guilty of a Class A misdemeanor. If that person utilized a
26computer web camera, cellular telephone, or any other type of

 

 

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1device to manufacture the harmful material, then each offense
2is a Class 4 felony.
3    (h) Telecommunications carriers, commercial mobile service
4providers, and providers of information services, including,
5but not limited to, Internet service providers and hosting
6service providers, are not liable under this Section, except
7for willful and wanton misconduct, by virtue of the
8transmission, storage, or caching of electronic communications
9or messages of others or by virtue of the provision of other
10related telecommunications, commercial mobile services, or
11information services used by others in violation of this
12Section.
13(Source: P.A. 99-642, eff. 7-28-16.)