96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB0369

 

Introduced 1/30/2009, by Rep. Robert W. Pritchard

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/11-21   from Ch. 38, par. 11-21
720 ILCS 5/12B-15
720 ILCS 5/12B-20
720 ILCS 5/12B-30

    Amends the Criminal Code of 1961. Provides that the exhibition to or depiction to a minor of harmful materials is a Class A misdemeanor for a first offense and a Class 4 felony for a second or subsequent offense. Provides that the exhibition to or depiction to a minor of a sexually explicit video game is a petty offense in which a $1,000 fine may be imposed.


LRB096 01994 RLC 12005 b

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB0369 LRB096 01994 RLC 12005 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 Sections 11-21, 12B-15, 12B-20, and 12B-30 as follows:
 
6     (720 ILCS 5/11-21)  (from Ch. 38, par. 11-21)
7     (Text of Section after amendment by P.A. 95-983)
8     Sec. 11-21. Harmful material.
9     (a) As used in this Section:
10         "Distribute" means transfer possession of, whether
11     with or without consideration.
12         "Harmful to minors" means that quality of any
13     description or representation, in whatever form, of
14     nudity, sexual conduct, sexual excitement, or
15     sado-masochistic abuse, when, taken as a whole, it (i)
16     predominately appeals to the prurient interest in sex of
17     minors, (ii) is patently offensive to prevailing standards
18     in the adult community in the State as a whole with respect
19     to what is suitable material for minors, and (iii) lacks
20     serious literary, artistic, political, or scientific value
21     for minors.
22         "Knowingly" means having knowledge of the contents of
23     the subject matter, or recklessly failing to exercise

 

 

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1     reasonable inspection which would have disclosed the
2     contents.
3         "Material" means (i) any picture, photograph, drawing,
4     sculpture, film, video game, computer game, video or
5     similar visual depiction, including any such
6     representation or image which is stored electronically, or
7     (ii) any book, magazine, printed matter however
8     reproduced, or recorded audio of any sort.
9         "Minor" means any person under the age of 18.
10         "Nudity" means the showing of the human male or female
11     genitals, pubic area or buttocks with less than a full
12     opaque covering, or the showing of the female breast with
13     less than a fully opaque covering of any portion below the
14     top of the nipple, or the depiction of covered male
15     genitals in a discernably turgid state.
16         "Sado-masochistic abuse" means flagellation or torture
17     by or upon a person clad in undergarments, a mask or
18     bizarre costume, or the condition of being fettered, bound
19     or otherwise physically restrained on the part of one
20     clothed for sexual gratification or stimulation.
21         "Sexual conduct" means acts of masturbation, sexual
22     intercourse, or physical contact with a person's clothed or
23     unclothed genitals, pubic area, buttocks or, if such person
24     be a female, breast.
25         "Sexual excitement" means the condition of human male
26     or female genitals when in a state of sexual stimulation or

 

 

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1     arousal.
2     (b) A person is guilty of distributing harmful material to
3 a minor when he or she:
4         (1) knowingly sells, lends, distributes, exhibits to,
5     depicts to, or gives away to a minor, knowing that the
6     minor is under the age of 18 or failing to exercise
7     reasonable care in ascertaining the person's true age:
8             (A) any material which depicts nudity, sexual
9         conduct or sado-masochistic abuse, or which contains
10         explicit and detailed verbal descriptions or narrative
11         accounts of sexual excitement, sexual conduct or
12         sado-masochistic abuse, and which taken as a whole is
13         harmful to minors;
14             (B) a motion picture, show, or other presentation
15         which depicts nudity, sexual conduct or
16         sado-masochistic abuse and is harmful to minors; or
17             (C) an admission ticket or pass to premises where
18         there is exhibited or to be exhibited such a motion
19         picture, show, or other presentation; or
20         (2) admits a minor to premises where there is exhibited
21     or to be exhibited such a motion picture, show, or other
22     presentation, knowing that the minor is a person under the
23     age of 18 or failing to exercise reasonable care in
24     ascertaining the person's true age.
25     (c) In any prosecution arising under this Section, it is an
26 affirmative defense:

 

 

HB0369 - 4 - LRB096 01994 RLC 12005 b

1         (1) that the minor as to whom the offense is alleged to
2     have been committed exhibited to the accused a draft card,
3     driver's license, birth certificate or other official or
4     apparently official document purporting to establish that
5     the minor was 18 years of age or older, which was relied
6     upon by the accused;
7         (2) that the defendant was in a parental or
8     guardianship relationship with the minor or that the minor
9     was accompanied by a parent or legal guardian;
10         (3) that the defendant was a bona fide school, museum,
11     or public library, or was a person acting in the course of
12     his or her employment as an employee or official of such
13     organization or retail outlet affiliated with and serving
14     the educational purpose of such organization;
15         (4) that the act charged was committed in aid of
16     legitimate scientific or educational purposes; or
17         (5) that an advertisement of harmful material as
18     defined in this Section culminated in the sale or
19     distribution of such harmful material to a child under
20     circumstances where there was no personal confrontation of
21     the child by the defendant, his employees, or agents, as
22     where the order or request for such harmful material was
23     transmitted by mail, telephone, Internet or similar means
24     of communication, and delivery of such harmful material to
25     the child was by mail, freight, Internet or similar means
26     of transport, which advertisement contained the following

 

 

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1     statement, or a substantially similar statement, and that
2     the defendant required the purchaser to certify that he or
3     she was not under the age of 18 and that the purchaser
4     falsely stated that he or she was not under the age of 18:
5     "NOTICE: It is unlawful for any person under the age of 18
6     to purchase the matter advertised. Any person under the age
7     of 18 that falsely states that he or she is not under the
8     age of 18 for the purpose of obtaining the material
9     advertised is guilty of a Class B misdemeanor under the
10     laws of the State."
11     (d) The predominant appeal to prurient interest of the
12 material shall be judged with reference to average children of
13 the same general age of the child to whom such material was
14 sold, lent, distributed or given, unless it appears from the
15 nature of the matter or the circumstances of its dissemination
16 or distribution that it is designed for specially susceptible
17 groups, in which case the predominant appeal of the material
18 shall be judged with reference to its intended or probable
19 recipient group.
20     (e) Distribution of harmful material in violation of this
21 Section is a Class A misdemeanor. A second or subsequent
22 offense is a Class 4 felony.
23     (f) Any person under the age of 18 that falsely states,
24 either orally or in writing, that he or she is not under the
25 age of 18, or that presents or offers to any person any
26 evidence of age and identity that is false or not actually his

 

 

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1 or her own for the purpose of ordering, obtaining, viewing, or
2 otherwise procuring or attempting to procure or view any
3 harmful material is guilty of a Class B misdemeanor.
4     (g) A person over the age of 18 who fails to exercise
5 reasonable care in ascertaining the true age of a minor,
6 knowingly distributes to, or sends, or causes to be sent, or
7 exhibits to, or offers to distribute, or exhibits any harmful
8 material to a person that he or she believes is a minor is
9 guilty of a Class A misdemeanor. If that person utilized a
10 computer web camera, cellular telephone, or any other type of
11 device to manufacture the harmful material, then each offense
12 is a Class 4 felony.
13     (h) Telecommunications carriers, commercial mobile service
14 providers, and providers of information services, including,
15 but not limited to, Internet service providers and hosting
16 service providers, are not liable under this Section, except
17 for willful and wanton misconduct, by virtue of the
18 transmission, storage, or caching of electronic communications
19 or messages of others or by virtue of the provision of other
20 related telecommunications, commercial mobile services, or
21 information services used by others in violation of this
22 Section.
23 (Source: P.A. 94-315, eff. 1-1-06; 95-983, eff. 6-1-09.)
 
24     (720 ILCS 5/12B-15)
25     Sec. 12B-15. Restricted sale or rental of sexually explicit

 

 

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1 video games.
2     (a) A person who sells, rents, exhibits, depicts, or
3 permits to be sold, or rented, exhibited, or depicted, any
4 sexually explicit video game to any minor, commits a petty
5 offense for which a fine of $1,000 may be imposed.
6     (b) A person who sells, rents, or permits to be sold or
7 rented any sexually explicit video game via electronic scanner
8 must program the electronic scanner to prompt sales clerks to
9 check identification before the sale or rental transaction is
10 completed. A person who violates this subsection (b) commits a
11 petty offense for which a fine of $1,000 may be imposed.
12     (c) A person may not sell or rent, or permit to be sold or
13 rented, any sexually explicit video game through a
14 self-scanning checkout mechanism. A person who violates this
15 subsection (c) commits a petty offense for which a fine of
16 $1,000 may be imposed.
17     (d) A retail sales clerk shall not be found in violation of
18 this Section unless he or she has complete knowledge that the
19 party to whom he or she sold or rented a sexually explicit
20 video game was a minor and the clerk sold or rented the video
21 game to the minor with the specific intent to do so.
22 (Source: P.A. 94-315, eff. 1-1-06.)
 
23     (720 ILCS 5/12B-20)
24     Sec. 12B-20. Affirmative defenses. In any prosecution
25 arising under this Article, it is an affirmative defense:

 

 

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1         (1) that the defendant was a family member of the minor
2     for whom the video game was purchased, exhibited to, or
3     depicted to. "Family member" for the purpose of this
4     Section, includes a parent, sibling, grandparent, aunt,
5     uncle, or first cousin;
6         (2) that the minor who purchased the video game or to
7     whom the video game was exhibited to or depicted to
8     exhibited a draft card, driver's license, birth
9     certificate or other official or apparently official
10     document purporting to establish that the minor was 18
11     years of age or older, which the defendant reasonably
12     relied on and reasonably believed to be authentic;
13         (3) for the video game retailer, if the retail sales
14     clerk had complete knowledge that the party to whom he or
15     she sold, or rented, exhibited to, or depicted to a violent
16     video game was a minor and the clerk sold, or rented,
17     exhibited, or depicted the video game to the minor with the
18     specific intent to do so; or
19         (4) that the video game sold, or rented, exhibited, or
20     depicted was pre-packaged and rated EC, E10+, E, or T by
21     the Entertainment Software Ratings Board.
22 (Source: P.A. 94-315, eff. 1-1-06.)
 
23     (720 ILCS 5/12B-30)
24     Sec. 12B-30. Posting notification of video games rating
25 system.

 

 

HB0369 - 9 - LRB096 01994 RLC 12005 b

1     (a) A retailer who sells, or rents, exhibits, or depicts
2 video games shall post a sign that notifies customers that a
3 video game rating system, created by the Entertainment Software
4 Ratings Board, is available to aid in the selection of a game.
5 The sign shall be prominently posted in, or within 5 feet of,
6 the area in which games are displayed for sale or rental, at
7 the information desk if one exists, and at the point of
8 purchase.
9     (b) The lettering of each sign shall be printed, at a
10 minimum, in 36-point type and shall be in black ink against a
11 light colored background, with dimensions of no less than 18 by
12 24 inches.
13     (c) A retailer's failure to comply with this Section is a
14 petty offense punishable by a fine of $500 for the first 3
15 violations, and $1,000 for every subsequent violation.
16 (Source: P.A. 94-315, eff. 1-1-06.)