97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5235

 

Introduced 2/8/2012, by Rep. Emily McAsey

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/11-20.1  from Ch. 38, par. 11-20.1
720 ILCS 5/11-20.1B rep.

    Amends the Criminal Code of 1961. Repeals provision creating the offense of aggravated child pornography. In the statute creating child pornography, provides for enhanced penalties if the child depicted is under the age of 13. Provides that the issue of whether the child depicted is under the age of 13 is an element of the offense to be resolved by the trier of fact.


LRB097 16476 RLC 61644 b

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB5235LRB097 16476 RLC 61644 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 1961 is amended by changing
5Section 11-20.1 as follows:
 
6    (720 ILCS 5/11-20.1)  (from Ch. 38, par. 11-20.1)
7    Sec. 11-20.1. Child pornography.
8    (a) A person commits child pornography who:
9        (1) films, videotapes, photographs, or otherwise
10    depicts or portrays by means of any similar visual medium
11    or reproduction or depicts by computer any child whom he or
12    she knows or reasonably should know to be under the age of
13    18 and at least 13 years of age or any severely or
14    profoundly intellectually disabled person where such child
15    or severely or profoundly intellectually disabled person
16    is:
17            (i) actually or by simulation engaged in any act of
18        sexual penetration or sexual conduct with any person or
19        animal; or
20            (ii) actually or by simulation engaged in any act
21        of sexual penetration or sexual conduct involving the
22        sex organs of the child or severely or profoundly
23        intellectually disabled person and the mouth, anus, or

 

 

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1        sex organs of another person or animal; or which
2        involves the mouth, anus or sex organs of the child or
3        severely or profoundly intellectually disabled person
4        and the sex organs of another person or animal; or
5            (iii) actually or by simulation engaged in any act
6        of masturbation; or
7            (iv) actually or by simulation portrayed as being
8        the object of, or otherwise engaged in, any act of lewd
9        fondling, touching, or caressing involving another
10        person or animal; or
11            (v) actually or by simulation engaged in any act of
12        excretion or urination within a sexual context; or
13            (vi) actually or by simulation portrayed or
14        depicted as bound, fettered, or subject to sadistic,
15        masochistic, or sadomasochistic abuse in any sexual
16        context; or
17            (vii) depicted or portrayed in any pose, posture or
18        setting involving a lewd exhibition of the unclothed or
19        transparently clothed genitals, pubic area, buttocks,
20        or, if such person is female, a fully or partially
21        developed breast of the child or other person; or
22        (2) with the knowledge of the nature or content
23    thereof, reproduces, disseminates, offers to disseminate,
24    exhibits or possesses with intent to disseminate any film,
25    videotape, photograph or other similar visual reproduction
26    or depiction by computer of any child or severely or

 

 

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1    profoundly intellectually disabled person whom the person
2    knows or reasonably should know to be under the age of 18
3    and at least 13 years of age or to be a severely or
4    profoundly intellectually disabled person, engaged in any
5    activity described in subparagraphs (i) through (vii) of
6    paragraph (1) of this subsection; or
7        (3) with knowledge of the subject matter or theme
8    thereof, produces any stage play, live performance, film,
9    videotape or other similar visual portrayal or depiction by
10    computer which includes a child whom the person knows or
11    reasonably should know to be under the age of 18 and at
12    least 13 years of age or a severely or profoundly
13    intellectually disabled person engaged in any activity
14    described in subparagraphs (i) through (vii) of paragraph
15    (1) of this subsection; or
16        (4) solicits, uses, persuades, induces, entices, or
17    coerces any child whom he or she knows or reasonably should
18    know to be under the age of 18 and at least 13 years of age
19    or a severely or profoundly intellectually disabled person
20    to appear in any stage play, live presentation, film,
21    videotape, photograph or other similar visual reproduction
22    or depiction by computer in which the child or severely or
23    profoundly intellectually disabled person is or will be
24    depicted, actually or by simulation, in any act, pose or
25    setting described in subparagraphs (i) through (vii) of
26    paragraph (1) of this subsection; or

 

 

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1        (5) is a parent, step-parent, legal guardian or other
2    person having care or custody of a child whom the person
3    knows or reasonably should know to be under the age of 18
4    and at least 13 years of age or a severely or profoundly
5    intellectually disabled person and who knowingly permits,
6    induces, promotes, or arranges for such child or severely
7    or profoundly intellectually disabled person to appear in
8    any stage play, live performance, film, videotape,
9    photograph or other similar visual presentation, portrayal
10    or simulation or depiction by computer of any act or
11    activity described in subparagraphs (i) through (vii) of
12    paragraph (1) of this subsection; or
13        (6) with knowledge of the nature or content thereof,
14    possesses any film, videotape, photograph or other similar
15    visual reproduction or depiction by computer of any child
16    or severely or profoundly intellectually disabled person
17    whom the person knows or reasonably should know to be under
18    the age of 18 and at least 13 years of age or to be a
19    severely or profoundly intellectually disabled person,
20    engaged in any activity described in subparagraphs (i)
21    through (vii) of paragraph (1) of this subsection; or
22        (7) solicits, or knowingly uses, persuades, induces,
23    entices, or coerces, a person to provide a child under the
24    age of 18 and at least 13 years of age or a severely or
25    profoundly intellectually disabled person to appear in any
26    videotape, photograph, film, stage play, live

 

 

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1    presentation, or other similar visual reproduction or
2    depiction by computer in which the child or severely or
3    profoundly intellectually disabled person will be
4    depicted, actually or by simulation, in any act, pose, or
5    setting described in subparagraphs (i) through (vii) of
6    paragraph (1) of this subsection.
7    (b) (1) It shall be an affirmative defense to a charge of
8    child pornography that the defendant reasonably believed,
9    under all of the circumstances, that the child was 18 years
10    of age or older or that the person was not a severely or
11    profoundly intellectually disabled person but only where,
12    prior to the act or acts giving rise to a prosecution under
13    this Section, he or she took some affirmative action or
14    made a bonafide inquiry designed to ascertain whether the
15    child was 18 years of age or older or that the person was
16    not a severely or profoundly intellectually disabled
17    person and his or her reliance upon the information so
18    obtained was clearly reasonable.
19        (1.5) Telecommunications carriers, commercial mobile
20    service providers, and providers of information services,
21    including, but not limited to, Internet service providers
22    and hosting service providers, are not liable under this
23    Section by virtue of the transmission, storage, or caching
24    of electronic communications or messages of others or by
25    virtue of the provision of other related
26    telecommunications, commercial mobile services, or

 

 

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1    information services used by others in violation of this
2    Section.
3        (2) (Blank).
4        (3) The charge of child pornography shall not apply to
5    the performance of official duties by law enforcement or
6    prosecuting officers or persons employed by law
7    enforcement or prosecuting agencies, court personnel or
8    attorneys, nor to bonafide treatment or professional
9    education programs conducted by licensed physicians,
10    psychologists or social workers.
11        (4) If the defendant possessed more than one of the
12    same film, videotape or visual reproduction or depiction by
13    computer in which child pornography is depicted, then the
14    trier of fact may infer that the defendant possessed such
15    materials with the intent to disseminate them.
16        (5) The charge of child pornography does not apply to a
17    person who does not voluntarily possess a film, videotape,
18    or visual reproduction or depiction by computer in which
19    child pornography is depicted. Possession is voluntary if
20    the defendant knowingly procures or receives a film,
21    videotape, or visual reproduction or depiction for a
22    sufficient time to be able to terminate his or her
23    possession.
24        (6) Any violation of paragraph (1), (2), (3), (4), (5),
25    or (7) of subsection (a) that includes a child engaged in,
26    solicited for, depicted in, or posed in any act of sexual

 

 

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1    penetration or bound, fettered, or subject to sadistic,
2    masochistic, or sadomasochistic abuse in a sexual context
3    shall be deemed a crime of violence.
4    (c) If the violation does not involve a film, videotape, or
5other moving depiction, a violation of paragraph (1), (4), (5),
6or (7) of subsection (a) is a Class 1 felony with a mandatory
7minimum fine of $2,000 and a maximum fine of $100,000. If the
8violation involves a film, videotape, or other moving
9depiction, a violation of paragraph (1), (4), (5), or (7) of
10subsection (a) is a Class X felony with a mandatory minimum
11fine of $2,000 and a maximum fine of $100,000. If the violation
12does not involve a film, videotape, or other moving depiction,
13a violation of paragraph (3) of subsection (a) is a Class 1
14felony with a mandatory minimum fine of $1500 and a maximum
15fine of $100,000. If the violation involves a film, videotape,
16or other moving depiction, a violation of paragraph (3) of
17subsection (a) is a Class X felony with a mandatory minimum
18fine of $1500 and a maximum fine of $100,000. If the violation
19does not involve a film, videotape, or other moving depiction,
20a violation of paragraph (2) of subsection (a) is a Class 1
21felony with a mandatory minimum fine of $1000 and a maximum
22fine of $100,000. If the violation involves a film, videotape,
23or other moving depiction, a violation of paragraph (2) of
24subsection (a) is a Class X felony with a mandatory minimum
25fine of $1000 and a maximum fine of $100,000. If the violation
26does not involve a film, videotape, or other moving depiction,

 

 

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1a violation of paragraph (6) of subsection (a) is a Class 3
2felony with a mandatory minimum fine of $1000 and a maximum
3fine of $100,000. If the violation involves a film, videotape,
4or other moving depiction, a violation of paragraph (6) of
5subsection (a) is a Class 2 felony with a mandatory minimum
6fine of $1000 and a maximum fine of $100,000.
7    (c-5) Where the child depicted is under the age of 13, a
8violation of paragraph (1), (4), (5), or (7) of subsection (a)
9is a Class X felony with a mandatory minimum fine of $2,000 and
10a maximum fine of $100,000. Where the child depicted is under
11the age of 13, a violation of paragraph (3) of subsection (a)
12is a Class X felony with a mandatory minimum fine of $1,500 and
13a maximum fine of $100,000. Where the child depicted is under
14the age of 13, a violation of paragraph (2) of subsection (a)
15is a Class X felony with a mandatory minimum fine of $1,000 and
16a maximum fine of $100,000. Where the child depicted is under
17the age of 13, a violation of paragraph (6) of subsection (a)
18is a Class 2 felony with a mandatory minimum fine of $1,000 and
19a maximum fine of $100,000. The issue of whether the child
20depicted is under the age of 13 is an element of the offense to
21be resolved by the trier of fact.
22    (d) If a person is convicted of a second or subsequent
23violation of this Section within 10 years of a prior
24conviction, the court shall order a presentence psychiatric
25examination of the person. The examiner shall report to the
26court whether treatment of the person is necessary.

 

 

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1    (e) Any film, videotape, photograph or other similar visual
2reproduction or depiction by computer which includes a child
3under the age of 18 and at least 13 years of age or a severely
4or profoundly intellectually disabled person engaged in any
5activity described in subparagraphs (i) through (vii) or
6paragraph 1 of subsection (a), and any material or equipment
7used or intended for use in photographing, filming, printing,
8producing, reproducing, manufacturing, projecting, exhibiting,
9depiction by computer, or disseminating such material shall be
10seized and forfeited in the manner, method and procedure
11provided by Section 36-1 of this Code for the seizure and
12forfeiture of vessels, vehicles and aircraft.
13    In addition, any person convicted under this Section is
14subject to the property forfeiture provisions set forth in
15Article 124B of the Code of Criminal Procedure of 1963.
16    (e-5) Upon the conclusion of a case brought under this
17Section, the court shall seal all evidence depicting a victim
18or witness that is sexually explicit. The evidence may be
19unsealed and viewed, on a motion of the party seeking to unseal
20and view the evidence, only for good cause shown and in the
21discretion of the court. The motion must expressly set forth
22the purpose for viewing the material. The State's attorney and
23the victim, if possible, shall be provided reasonable notice of
24the hearing on the motion to unseal the evidence. Any person
25entitled to notice of a hearing under this subsection (e-5) may
26object to the motion.

 

 

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1    (f) Definitions. For the purposes of this Section:
2        (1) "Disseminate" means (i) to sell, distribute,
3    exchange or transfer possession, whether with or without
4    consideration or (ii) to make a depiction by computer
5    available for distribution or downloading through the
6    facilities of any telecommunications network or through
7    any other means of transferring computer programs or data
8    to a computer.
9        (2) "Produce" means to direct, promote, advertise,
10    publish, manufacture, issue, present or show.
11        (3) "Reproduce" means to make a duplication or copy.
12        (4) "Depict by computer" means to generate or create,
13    or cause to be created or generated, a computer program or
14    data that, after being processed by a computer either alone
15    or in conjunction with one or more computer programs,
16    results in a visual depiction on a computer monitor,
17    screen, or display.
18        (5) "Depiction by computer" means a computer program or
19    data that, after being processed by a computer either alone
20    or in conjunction with one or more computer programs,
21    results in a visual depiction on a computer monitor,
22    screen, or display.
23        (6) "Computer", "computer program", and "data" have
24    the meanings ascribed to them in Section 16D-2 of this
25    Code.
26        (7) For the purposes of this Section, "child

 

 

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1    pornography" includes a film, videotape, photograph, or
2    other similar visual medium or reproduction or depiction by
3    computer that is, or appears to be, that of a person,
4    either in part, or in total, under the age of 18 and at
5    least 13 years of age or a severely or profoundly
6    intellectually disabled mentally retarded person,
7    regardless of the method by which the film, videotape,
8    photograph, or other similar visual medium or reproduction
9    or depiction by computer is created, adopted, or modified
10    to appear as such. "Child pornography" also includes a
11    film, videotape, photograph, or other similar visual
12    medium or reproduction or depiction by computer that is
13    advertised, promoted, presented, described, or distributed
14    in such a manner that conveys the impression that the film,
15    videotape, photograph, or other similar visual medium or
16    reproduction or depiction by computer is of a person under
17    the age of 18 and at least 13 years of age or a severely or
18    profoundly intellectually disabled mentally retarded
19    person.
20    (g) Re-enactment; findings; purposes.
21        (1) The General Assembly finds and declares that:
22            (i) Section 50-5 of Public Act 88-680, effective
23        January 1, 1995, contained provisions amending the
24        child pornography statute, Section 11-20.1 of the
25        Criminal Code of 1961. Section 50-5 also contained
26        other provisions.

 

 

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1            (ii) In addition, Public Act 88-680 was entitled
2        "AN ACT to create a Safe Neighborhoods Law". (A)
3        Article 5 was entitled JUVENILE JUSTICE and amended the
4        Juvenile Court Act of 1987. (B) Article 15 was entitled
5        GANGS and amended various provisions of the Criminal
6        Code of 1961 and the Unified Code of Corrections. (C)
7        Article 20 was entitled ALCOHOL ABUSE and amended
8        various provisions of the Illinois Vehicle Code. (D)
9        Article 25 was entitled DRUG ABUSE and amended the
10        Cannabis Control Act and the Illinois Controlled
11        Substances Act. (E) Article 30 was entitled FIREARMS
12        and amended the Criminal Code of 1961 and the Code of
13        Criminal Procedure of 1963. (F) Article 35 amended the
14        Criminal Code of 1961, the Rights of Crime Victims and
15        Witnesses Act, and the Unified Code of Corrections. (G)
16        Article 40 amended the Criminal Code of 1961 to
17        increase the penalty for compelling organization
18        membership of persons. (H) Article 45 created the
19        Secure Residential Youth Care Facility Licensing Act
20        and amended the State Finance Act, the Juvenile Court
21        Act of 1987, the Unified Code of Corrections, and the
22        Private Correctional Facility Moratorium Act. (I)
23        Article 50 amended the WIC Vendor Management Act, the
24        Firearm Owners Identification Card Act, the Juvenile
25        Court Act of 1987, the Criminal Code of 1961, the
26        Wrongs to Children Act, and the Unified Code of

 

 

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1        Corrections.
2            (iii) On September 22, 1998, the Third District
3        Appellate Court in People v. Dainty, 701 N.E. 2d 118,
4        ruled that Public Act 88-680 violates the single
5        subject clause of the Illinois Constitution (Article
6        IV, Section 8 (d)) and was unconstitutional in its
7        entirety. As of the time this amendatory Act of 1999
8        was prepared, People v. Dainty was still subject to
9        appeal.
10            (iv) Child pornography is a vital concern to the
11        people of this State and the validity of future
12        prosecutions under the child pornography statute of
13        the Criminal Code of 1961 is in grave doubt.
14        (2) It is the purpose of this amendatory Act of 1999 to
15    prevent or minimize any problems relating to prosecutions
16    for child pornography that may result from challenges to
17    the constitutional validity of Public Act 88-680 by
18    re-enacting the Section relating to child pornography that
19    was included in Public Act 88-680.
20        (3) This amendatory Act of 1999 re-enacts Section
21    11-20.1 of the Criminal Code of 1961, as it has been
22    amended. This re-enactment is intended to remove any
23    question as to the validity or content of that Section; it
24    is not intended to supersede any other Public Act that
25    amends the text of the Section as set forth in this
26    amendatory Act of 1999. The material is shown as existing

 

 

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1    text (i.e., without underscoring) because, as of the time
2    this amendatory Act of 1999 was prepared, People v. Dainty
3    was subject to appeal to the Illinois Supreme Court.
4        (4) The re-enactment by this amendatory Act of 1999 of
5    Section 11-20.1 of the Criminal Code of 1961 relating to
6    child pornography that was amended by Public Act 88-680 is
7    not intended, and shall not be construed, to imply that
8    Public Act 88-680 is invalid or to limit or impair any
9    legal argument concerning whether those provisions were
10    substantially re-enacted by other Public Acts.
11(Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10;
1296-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-157, eff.
131-1-12; 97-227, eff. 1-1-12; revised 9-12-11.)
 
14    (720 ILCS 5/11-20.1B rep.)
15    Section 10. The Criminal Code of 1961 is amended by
16repealing Section 11-20.1B.