HB4023 Enrolled LRB094 11300 RLC 42106 b

1     AN ACT concerning criminal law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Criminal Code of 1961 is amended by changing
5 Section 11-21 and by adding Articles 12A and 12B as follows:
 
6     (720 ILCS 5/11-21)  (from Ch. 38, par. 11-21)
7     Sec. 11-21. Harmful material.
8     (a) As used in this Section:
9         "Distribute" means transfer possession of, whether
10     with or without consideration.
11         "Harmful to minors" means that quality of any
12     description or representation, in whatever form, of
13     nudity, sexual conduct, sexual excitement, or
14     sado-masochistic abuse, when, taken as a whole, it (i)
15     predominately appeals to the prurient interest in sex of
16     minors, (ii) is patently offensive to prevailing standards
17     in the adult community in the State as a whole with respect
18     to what is suitable material for minors, and (iii) lacks
19     serious literary, artistic, political, or scientific value
20     for minors.
21         "Knowingly" means having knowledge of the contents of
22     the subject matter, or recklessly failing to exercise
23     reasonable inspection which would have disclosed the
24     contents.
25         "Material" means (i) any picture, photograph, drawing,
26     sculpture, film, video game, computer game, video or
27     similar visual depiction, including any such
28     representation or image which is stored electronically, or
29     (ii) any book, magazine, printed matter however
30     reproduced, or recorded audio of any sort.
31         "Minor" means any person under the age of 18.
32         "Nudity" means the showing of the human male or female

 

 

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1     genitals, pubic area or buttocks with less than a full
2     opaque covering, or the showing of the female breast with
3     less than a fully opaque covering of any portion below the
4     top of the nipple, or the depiction of covered male
5     genitals in a discernably turgid state.
6         "Sado-masochistic abuse" means flagellation or torture
7     by or upon a person clad in undergarments, a mask or
8     bizarre costume, or the condition of being fettered, bound
9     or otherwise physically restrained on the part of one
10     clothed for sexual gratification or stimulation.
11         "Sexual conduct" means acts of masturbation, sexual
12     intercourse, or physical contact with a person's clothed or
13     unclothed genitals, pubic area, buttocks or, if such person
14     be a female, breast.
15         "Sexual excitement" means the condition of human male
16     or female genitals when in a state of sexual stimulation or
17     arousal.
18     (b) A person is guilty of distributing harmful material to
19 a minor when he or she:
20         (1) knowingly sells, lends, distributes, or gives away
21     to a minor, knowing that the minor is under the age of 18
22     or failing to exercise reasonable care in ascertaining the
23     person's true age:
24             (A) any material which depicts nudity, sexual
25         conduct or sado-masochistic abuse, or which contains
26         explicit and detailed verbal descriptions or narrative
27         accounts of sexual excitement, sexual conduct or
28         sado-masochistic abuse, and which taken as a whole is
29         harmful to minors;
30             (B) a motion picture, show, or other presentation
31         which depicts nudity, sexual conduct or
32         sado-masochistic abuse and is harmful to minors; or
33             (C) an admission ticket or pass to premises where
34         there is exhibited or to be exhibited such a motion
35         picture, show, or other presentation; or
36         (2) admits a minor to premises where there is exhibited

 

 

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1     or to be exhibited such a motion picture, show, or other
2     presentation, knowing that the minor is a person under the
3     age of 18 or failing to exercise reasonable care in
4     ascertaining the person's true age.
5     (c) In any prosecution arising under this Section, it is an
6 affirmative defense:
7         (1) that the minor as to whom the offense is alleged to
8     have been committed exhibited to the accused a draft card,
9     driver's license, birth certificate or other official or
10     apparently official document purporting to establish that
11     the minor was 18 years of age or older, which was relied
12     upon by the accused;
13         (2) that the defendant was in a parental or
14     guardianship relationship with the minor or that the minor
15     was accompanied by a parent or legal guardian;
16         (3) that the defendant was a bona fide school, museum,
17     or public library, or was a person acting in the course of
18     his or her employment as an employee or official of such
19     organization or retail outlet affiliated with and serving
20     the educational purpose of such organization;
21         (4) that the act charged was committed in aid of
22     legitimate scientific or educational purposes; or
23         (5) that an advertisement of harmful material as
24     defined in this Section culminated in the sale or
25     distribution of such harmful material to a child under
26     circumstances where there was no personal confrontation of
27     the child by the defendant, his employees, or agents, as
28     where the order or request for such harmful material was
29     transmitted by mail, telephone, Internet or similar means
30     of communication, and delivery of such harmful material to
31     the child was by mail, freight, Internet or similar means
32     of transport, which advertisement contained the following
33     statement, or a substantially similar statement, and that
34     the defendant required the purchaser to certify that he or
35     she was not under the age of 18 and that the purchaser
36     falsely stated that he or she was not under the age of 18:

 

 

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1     "NOTICE: It is unlawful for any person under the age of 18
2     to purchase the matter advertised. Any person under the age
3     of 18 that falsely states that he or she is not under the
4     age of 18 for the purpose of obtaining the material
5     advertised is guilty of a Class B misdemeanor under the
6     laws of the State."
7     (d) The predominant appeal to prurient interest of the
8 material shall be judged with reference to average children of
9 the same general age of the child to whom such material was
10 sold, lent, distributed or given, unless it appears from the
11 nature of the matter or the circumstances of its dissemination
12 or distribution that it is designed for specially susceptible
13 groups, in which case the predominant appeal of the material
14 shall be judged with reference to its intended or probable
15 recipient group.
16     (e) Distribution of harmful material in violation of this
17 Section is a Class A misdemeanor. A second or subsequent
18 offense is a Class 4 felony.
19     (f) Any person under the age of 18 that falsely states,
20 either orally or in writing, that he or she is not under the
21 age of 18, or that presents or offers to any person any
22 evidence of age and identity that is false or not actually his
23 or her own for the purpose of ordering, obtaining, viewing, or
24 otherwise procuring or attempting to procure or view any
25 harmful material is guilty of a Class B misdemeanor.
26     (a) Elements of the Offense.
27     A person who, with knowledge that a person is a child, that
28 is a person under 18 years of age, or who fails to exercise
29 reasonable care in ascertaining the true age of a child,
30 knowingly distributes to or sends or causes to be sent to, or
31 exhibits to, or offers to distribute or exhibit any harmful
32 material to a child, is guilty of a misdemeanor.
33     (b) Definitions.
34     (1) Material is harmful if, to the average person, applying
35 contemporary standards, its predominant appeal, taken as a
36 whole, is to prurient interest, that is a shameful or morbid

 

 

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1 interest in nudity, sex, or excretion, which goes substantially
2 beyond customary limits of candor in description or
3 representation of such matters, and is material the redeeming
4 social importance of which is substantially less than its
5 prurient appeal.
6     (2) Material, as used in this Section means any writing,
7 picture, record or other representation or embodiment.
8     (3) Distribute means to transfer possession of, whether
9 with or without consideration.
10     (4) Knowingly, as used in this section means having
11 knowledge of the contents of the subject matter, or recklessly
12 failing to exercise reasonable inspection which would have
13 disclosed the contents thereof.
14     (c) Interpretation of Evidence.
15     The predominant appeal to prurient interest of the material
16 shall be judged with reference to average children of the same
17 general age of the child to whom such material was offered,
18 distributed, sent or exhibited, unless it appears from the
19 nature of the matter or the circumstances of its dissemination,
20 distribution or exhibition that it is designed for specially
21 susceptible groups, in which case the predominant appeal of the
22 material shall be judged with reference to its intended or
23 probable recipient group.
24     In prosecutions under this section, where circumstances of
25 production, presentation, sale, dissemination, distribution,
26 or publicity indicate the material is being commercially
27 exploited for the sake of its prurient appeal, such evidence is
28 probative with respect to the nature of the material and can
29 justify the conclusion that the redeeming social importance of
30 the material is in fact substantially less than its prurient
31 appeal.
32     (d) Sentence.
33     Distribution of harmful material in violation of this
34 Section is a Class A misdemeanor. A second or subsequent
35 offense is a Class 4 felony.
36     (e) Affirmative Defenses.

 

 

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1     (1) Nothing in this section shall prohibit any public
2 library or any library operated by an accredited institution of
3 higher education from circulating harmful material to any
4 person under 18 years of age, provided such circulation is in
5 aid of a legitimate scientific or educational purpose, and it
6 shall be an affirmative defense in any prosecution for a
7 violation of this section that the act charged was committed in
8 aid of legitimate scientific or educational purposes.
9     (2) Nothing in this section shall prohibit any parent from
10 distributing to his child any harmful material.
11     (3) Proof that the defendant demanded, was shown and acted
12 in reliance upon any of the following documents as proof of the
13 age of a child, shall be a defense to any criminal prosecution
14 under this section: A document issued by the federal government
15 or any state, county or municipal government or subdivision or
16 agency thereof, including, but not limited to, a motor vehicle
17 operator's license, a registration certificate issued under
18 the Federal Selective Service Act or an identification card
19 issued to a member of the armed forces.
20     (4) In the event an advertisement of harmful material as
21 defined in this section culminates in the sale or distribution
22 of such harmful material to a child, under circumstances where
23 there was no personal confrontation of the child by the
24 defendant, his employees or agents, as where the order or
25 request for such harmful material was transmitted by mail,
26 telephone, or similar means of communication, and delivery of
27 such harmful material to the child was by mail, freight, or
28 similar means of transport, it shall be a defense in any
29 prosecution for a violation of this section that the
30 advertisement contained the following statement, or a
31 statement substantially similar thereto, and that the
32 defendant required the purchaser to certify that he was not
33 under 18 years of age and that the purchaser falsely stated
34 that he was not under 18 years of age: "NOTICE: It is unlawful
35 for any person under 18 years of age to purchase the matter
36 herein advertised. Any person under 18 years of age who falsely

 

 

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1 states that he is not under 18 years of age for the purpose of
2 obtaining the material advertised herein, is guilty of a Class
3 B misdemeanor under the laws of the State of Illinois."
4     (f) Child Falsifying Age.
5     Any person under 18 years of age who falsely states, either
6 orally or in writing, that he is not under the age of 18 years,
7 or who presents or offers to any person any evidence of age and
8 identity which is false or not actually his own for the purpose
9 of ordering, obtaining, viewing, or otherwise procuring or
10 attempting to procure or view any harmful material, is guilty
11 of a Class B misdemeanor.
12 (Source: P.A. 77-2638.)
 
13     (720 ILCS 5/Art. 12A heading new)
14
ARTICLE 12A. VIOLENT VIDEO GAMES

 
15     (720 ILCS 5/12A-1 new)
16     Sec. 12A-1. Short title. This Article may be cited as the
17 Violent Video Games Law.
 
18     (720 ILCS 5/12A-5 new)
19     Sec. 12A-5. Findings.
20     (a) The General Assembly finds that minors who play violent
21 video games are more likely to:
22         (1) Exhibit violent, asocial, or aggressive behavior.
23         (2) Experience feelings of aggression.
24         (3) Experience a reduction of activity in the frontal
25     lobes of the brain which is responsible for controlling
26     behavior.
27     (b) While the video game industry has adopted its own
28 voluntary standards describing which games are appropriate for
29 minors, those standards are not adequately enforced.
30     (c) Minors are capable of purchasing and do purchase
31 violent video games.
32     (d) The State has a compelling interest in assisting
33 parents in protecting their minor children from violent video

 

 

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1 games.
2     (e) The State has a compelling interest in preventing
3 violent, aggressive, and asocial behavior.
4     (f) The State has a compelling interest in preventing
5 psychological harm to minors who play violent video games.
6     (g) The State has a compelling interest in eliminating any
7 societal factors that may inhibit the physiological and
8 neurological development of its youth.
9     (h) The State has a compelling interest in facilitating the
10 maturation of Illinois' children into law-abiding, productive
11 adults.
 
12     (720 ILCS 5/12A-10 new)
13     Sec. 12A-10. Definitions. For the purposes of this Article,
14 the following terms have the following meanings:
15     (a) "Video game retailer" means a person who sells or rents
16 video games to the public.
17     (b) "Video game" means an object or device that stores
18 recorded data or instructions, receives data or instructions
19 generated by a person who uses it, and, by processing the data
20 or instructions, creates an interactive game capable of being
21 played, viewed, or experienced on or through a computer, gaming
22 system, console, or other technology.
23     (c) "Minor" means a person under 18 years of age.
24     (d) "Person" includes but is not limited to an individual,
25 corporation, partnership, and association.
26     (e) "Violent" video games include depictions of or
27 simulations of human-on-human violence in which the player
28 kills or otherwise causes serious physical harm to another
29 human. "Serious physical harm" includes depictions of death,
30 dismemberment, amputation, decapitation, maiming,
31 disfigurement, mutilation of body parts, or rape.
 
32     (720 ILCS 5/12A-15 new)
33     Sec. 12A-15. Restricted sale or rental of violent video
34 games.

 

 

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1     (a) A person who sells, rents, or permits to be sold or
2 rented, any violent video game to any minor, commits a petty
3 offense for which a fine of $1,000 may be imposed.
4     (b) A person who sells, rents, or permits to be sold or
5 rented any violent video game via electronic scanner must
6 program the electronic scanner to prompt sales clerks to check
7 identification before the sale or rental transaction is
8 completed. A person who violates this subsection (b) commits a
9 petty offense for which a fine of $1,000 may be imposed.
10     (c) A person may not sell or rent, or permit to be sold or
11 rented, any violent video game through a self-scanning checkout
12 mechanism. A person who violates this subsection (c) commits a
13 petty offense for which a fine of $1,000 may be imposed.
14     (d) A retail sales clerk shall not be found in violation of
15 this Section unless he or she has complete knowledge that the
16 party to whom he or she sold or rented a violent video game was
17 a minor and the clerk sold or rented the video game to the
18 minor with the specific intent to do so.
 
19     (720 ILCS 5/12A-20 new)
20     Sec. 12A-20. Affirmative defenses. In any prosecution
21 arising under this Article, it is an affirmative defense:
22     (1) that the defendant was a family member of the minor for
23 whom the video game was purchased. "Family member" for the
24 purpose of this Section, includes a parent, sibling,
25 grandparent, aunt, uncle, or first cousin;
26     (2) that the minor who purchased the video game exhibited a
27 draft card, driver's license, birth certificate or other
28 official or apparently official document purporting to
29 establish that the minor was 18 years of age or older, which
30 the defendant reasonably relied on and reasonably believed to
31 be authentic;
32     (3) for the video game retailer, if the retail sales clerk
33 had complete knowledge that the party to whom he or she sold or
34 rented a violent video game was a minor and the clerk sold or
35 rented the video game to the minor with the specific intent to

 

 

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1 do so; or
2     (4) that the video game sold or rented was pre-packaged and
3 rated EC, E10+, E, or T by the Entertainment Software Ratings
4 Board.
 
5     (720 ILCS 5/12A-25 new)
6     Sec. 12A-25. Labeling of violent video games.
7     (a) Video game retailers shall label all violent video
8 games as defined in this Article, with a solid white "18"
9 outlined in black. The "18" shall have dimensions of no less
10 than 2 inches by 2 inches. The "18" shall be displayed on the
11 front face of the video game package.
12     (b) A retailer's failure to comply with this Section is a
13 petty offense punishable by a fine of $500 for the first 3
14 violations, and $1,000 for every subsequent violation.
 
15     (720 ILCS 5/Art. 12B heading new)
16
ARTICLE 12B. SEXUALLY EXPLICIT VIDEO GAMES

 
17     (720 ILCS 5/12B-1 new)
18     Sec. 12B-1. Short title. This Article may be cited as the
19 Sexually Explicit Video Games Law.
 
20     (720 ILCS 5/12B-5 new)
21     Sec. 12B-5. Findings. The General Assembly finds sexually
22 explicit video games inappropriate for minors and that the
23 State has a compelling interest in assisting parents in
24 protecting their minor children from sexually explicit video
25 games.
 
26     (720 ILCS 5/12B-10 new)
27     Sec. 12B-10. Definitions. For the purposes of this Article,
28 the following terms have the following meanings:
29     (a) "Video game retailer" means a person who sells or rents
30 video games to the public.
31     (b) "Video game" means an object or device that stores

 

 

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1 recorded data or instructions, receives data or instructions
2 generated by a person who uses it, and, by processing the data
3 or instructions, creates an interactive game capable of being
4 played, viewed, or experienced on or through a computer, gaming
5 system, console, or other technology.
6     (c) "Minor" means a person under 18 years of age.
7     (d) "Person" includes but is not limited to an individual,
8 corporation, partnership, and association.
9     (e) "Sexually explicit" video games include those that the
10 average person, applying contemporary community standards
11 would find, with respect to minors, is designed to appeal or
12 pander to the prurient interest and depict or represent in a
13 manner patently offensive with respect to minors, an actual or
14 simulated sexual act or sexual contact, an actual or simulated
15 normal or perverted sexual act or a lewd exhibition of the
16 genitals or post-pubescent female breast.
 
17     (720 ILCS 5/12B-15 new)
18     Sec. 12B-15. Restricted sale or rental of sexually explicit
19 video games.
20     (a) A person who sells, rents, or permits to be sold or
21 rented, any sexually explicit video game to any minor, commits
22 a petty offense for which a fine of $1,000 may be imposed.
23     (b) A person who sells, rents, or permits to be sold or
24 rented any sexually explicit video game via electronic scanner
25 must program the electronic scanner to prompt sales clerks to
26 check identification before the sale or rental transaction is
27 completed. A person who violates this subsection (b) commits a
28 petty offense for which a fine of $1,000 may be imposed.
29     (c) A person may not sell or rent, or permit to be sold or
30 rented, any sexually explicit video game through a
31 self-scanning checkout mechanism. A person who violates this
32 subsection (c) commits a petty offense for which a fine of
33 $1,000 may be imposed.
34     (d) A retail sales clerk shall not be found in violation of
35 this Section unless he or she has complete knowledge that the

 

 

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1 party to whom he or she sold or rented a sexually explicit
2 video game was a minor and the clerk sold or rented the video
3 game to the minor with the specific intent to do so.
 
4     (720 ILCS 5/12B-20 new)
5     Sec. 12B-20. Affirmative defenses. In any prosecution
6 arising under this Article, it is an affirmative defense:
7     (1) that the defendant was a family member of the minor for
8 whom the video game was purchased. "Family member" for the
9 purpose of this Section, includes a parent, sibling,
10 grandparent, aunt, uncle, or first cousin;
11     (2) that the minor who purchased the video game exhibited a
12 draft card, driver's license, birth certificate or other
13 official or apparently official document purporting to
14 establish that the minor was 18 years of age or older, which
15 the defendant reasonably relied on and reasonably believed to
16 be authentic;
17     (3) for the video game retailer, if the retail sales clerk
18 had complete knowledge that the party to whom he or she sold or
19 rented a violent video game was a minor and the clerk sold or
20 rented the video game to the minor with the specific intent to
21 do so; or
22     (4) that the video game sold or rented was pre-packaged and
23 rated EC, E10+, E, or T by the Entertainment Software Ratings
24 Board.
 
25     (720 ILCS 5/12B-25 new)
26     Sec. 12B-25. Labeling of sexually explicit video games.
27     (a) Video game retailers shall label all sexually explicit
28 video games as defined in this Act, with a solid white "18"
29 outlined in black. The "18" shall have dimensions of no less
30 than 2 inches by 2 inches. The "18" shall be displayed on the
31 front face of the video game package.
32     (b) A retailer who fails to comply with this Section is
33 guilty of a petty offense punishable by a fine of $500 for the
34 first 3 violations, and $1,000 for every subsequent violation.
 

 

 

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1     (720 ILCS 5/12B-30 new)
2     Sec. 12B-30. Posting notification of video games rating
3 system.
4     (a) A retailer who sells or rents video games shall post a
5 sign that notifies customers that a video game rating system,
6 created by the Entertainment Software Ratings Board, is
7 available to aid in the selection of a game. The sign shall be
8 prominently posted in, or within 5 feet of, the area in which
9 games are displayed for sale or rental, at the information desk
10 if one exists, and at the point of purchase.
11     (b) The lettering of each sign shall be printed, at a
12 minimum, in 36-point type and shall be in black ink against a
13 light colored background, with dimensions of no less than 18 by
14 24 inches.
15     (c) A retailer's failure to comply with this Section is a
16 petty offense punishable by a fine of $500 for the first 3
17 violations, and $1,000 for every subsequent violation.
 
18     (720 ILCS 5/12B-35 new)
19     Sec. 12B-35. Availability of brochure describing rating
20 system.
21     (a) A video game retailer shall make available upon request
22 a brochure to customers that explains the Entertainment
23 Software Ratings Board ratings system.
24     (b) A retailer who fails to comply with this Section shall
25 receive the punishment described in subsection (b) of Section
26 12B-25.
 
27     Section 98. Severability. If any provision of this Act or
28 the application thereof to any person or circumstance is held
29 invalid, the remainder of this Act and the application of such
30 provision to other persons or circumstances shall not be
31 affected thereby.
 
32     Section 99. Effective Date. This Act takes effect January

 

 

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1 1, 2006.