Rep. Emily McAsey

Filed: 2/28/2012

 

 


 

 


 
09700HB5235ham001LRB097 16476 RLC 66561 a

1
AMENDMENT TO HOUSE BILL 5235

2    AMENDMENT NO. ______. Amend House Bill 5235 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Criminal Code of 1961 is amended by
5changing Section 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:

 

 

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1            (i) actually or by simulation engaged in any act of
2        sexual penetration or sexual conduct with any person or
3        animal; or
4            (ii) actually or by simulation engaged in any act
5        of sexual penetration or sexual conduct involving the
6        sex organs of the child or severely or profoundly
7        intellectually disabled person and the mouth, anus, or
8        sex organs of another person or animal; or which
9        involves the mouth, anus or sex organs of the child or
10        severely or profoundly intellectually disabled person
11        and the sex organs of another person or animal; or
12            (iii) actually or by simulation engaged in any act
13        of masturbation; or
14            (iv) actually or by simulation portrayed as being
15        the object of, or otherwise engaged in, any act of lewd
16        fondling, touching, or caressing involving another
17        person or animal; or
18            (v) actually or by simulation engaged in any act of
19        excretion or urination within a sexual context; or
20            (vi) actually or by simulation portrayed or
21        depicted as bound, fettered, or subject to sadistic,
22        masochistic, or sadomasochistic abuse in any sexual
23        context; or
24            (vii) depicted or portrayed in any pose, posture or
25        setting involving a lewd exhibition of the unclothed or
26        transparently clothed genitals, pubic area, buttocks,

 

 

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1        or, if such person is female, a fully or partially
2        developed breast of the child or other person; or
3        (2) with the knowledge of the nature or content
4    thereof, reproduces, disseminates, offers to disseminate,
5    exhibits or possesses with intent to disseminate any film,
6    videotape, photograph or other similar visual reproduction
7    or depiction by computer of any child or severely or
8    profoundly intellectually disabled person whom the person
9    knows or reasonably should know to be under the age of 18
10    and at least 13 years of age or to be a severely or
11    profoundly intellectually disabled person, engaged in any
12    activity described in subparagraphs (i) through (vii) of
13    paragraph (1) of this subsection; or
14        (3) with knowledge of the subject matter or theme
15    thereof, produces any stage play, live performance, film,
16    videotape or other similar visual portrayal or depiction by
17    computer which includes a child whom the person knows or
18    reasonably should know to be under the age of 18 and at
19    least 13 years of age or a severely or profoundly
20    intellectually disabled person engaged in any activity
21    described in subparagraphs (i) through (vii) of paragraph
22    (1) of this subsection; or
23        (4) solicits, uses, persuades, induces, entices, or
24    coerces any child whom he or she knows or reasonably should
25    know to be under the age of 18 and at least 13 years of age
26    or a severely or profoundly intellectually disabled person

 

 

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

 

 

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1    engaged in any activity described in subparagraphs (i)
2    through (vii) of paragraph (1) of this subsection; or
3        (7) solicits, or knowingly uses, persuades, induces,
4    entices, or coerces, a person to provide a child under the
5    age of 18 and at least 13 years of age or a severely or
6    profoundly intellectually disabled person to appear in any
7    videotape, photograph, film, stage play, live
8    presentation, or other similar visual reproduction or
9    depiction by computer in which the child or severely or
10    profoundly intellectually disabled person will be
11    depicted, actually or by simulation, in any act, pose, or
12    setting described in subparagraphs (i) through (vii) of
13    paragraph (1) of this subsection.
14    (b) (1) It shall be an affirmative defense to a charge of
15    child pornography that the defendant reasonably believed,
16    under all of the circumstances, that the child was 18 years
17    of age or older or that the person was not a severely or
18    profoundly intellectually disabled person but only where,
19    prior to the act or acts giving rise to a prosecution under
20    this Section, he or she took some affirmative action or
21    made a bonafide inquiry designed to ascertain whether the
22    child was 18 years of age or older or that the person was
23    not a severely or profoundly intellectually disabled
24    person and his or her reliance upon the information so
25    obtained was clearly reasonable.
26        (1.5) Telecommunications carriers, commercial mobile

 

 

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1    service providers, and providers of information services,
2    including, but not limited to, Internet service providers
3    and hosting service providers, are not liable under this
4    Section by virtue of the transmission, storage, or caching
5    of electronic communications or messages of others or by
6    virtue of the provision of other related
7    telecommunications, commercial mobile services, or
8    information services used by others in violation of this
9    Section.
10        (2) (Blank).
11        (3) The charge of child pornography shall not apply to
12    the performance of official duties by law enforcement or
13    prosecuting officers or persons employed by law
14    enforcement or prosecuting agencies, court personnel or
15    attorneys, nor to bonafide treatment or professional
16    education programs conducted by licensed physicians,
17    psychologists or social workers.
18        (4) If the defendant possessed more than one of the
19    same film, videotape or visual reproduction or depiction by
20    computer in which child pornography is depicted, then the
21    trier of fact may infer that the defendant possessed such
22    materials with the intent to disseminate them.
23        (5) The charge of child pornography does not apply to a
24    person who does not voluntarily possess a film, videotape,
25    or visual reproduction or depiction by computer in which
26    child pornography is depicted. Possession is voluntary if

 

 

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1    the defendant knowingly procures or receives a film,
2    videotape, or visual reproduction or depiction for a
3    sufficient time to be able to terminate his or her
4    possession.
5        (6) Any violation of paragraph (1), (2), (3), (4), (5),
6    or (7) of subsection (a) that includes a child engaged in,
7    solicited for, depicted in, or posed in any act of sexual
8    penetration or bound, fettered, or subject to sadistic,
9    masochistic, or sadomasochistic abuse in a sexual context
10    shall be deemed a crime of violence.
11    (c) If the violation does not involve a film, videotape, or
12other moving depiction, a violation of paragraph (1), (4), (5),
13or (7) of subsection (a) is a Class 1 felony with a mandatory
14minimum fine of $2,000 and a maximum fine of $100,000. If the
15violation involves a film, videotape, or other moving
16depiction, a violation of paragraph (1), (4), (5), or (7) of
17subsection (a) is a Class X felony with a mandatory minimum
18fine of $2,000 and a maximum fine of $100,000. If the violation
19does not involve a film, videotape, or other moving depiction,
20a violation of paragraph (3) of subsection (a) is a Class 1
21felony with a mandatory minimum fine of $1500 and a maximum
22fine of $100,000. If the violation involves a film, videotape,
23or other moving depiction, a violation of paragraph (3) of
24subsection (a) is a Class X felony with a mandatory minimum
25fine of $1500 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 (2) of subsection (a) is a Class 1
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 (2) of
5subsection (a) is a Class X felony with a mandatory minimum
6fine of $1000 and a maximum fine of $100,000. If the violation
7does not involve a film, videotape, or other moving depiction,
8a violation of paragraph (6) of subsection (a) is a Class 3
9felony with a mandatory minimum fine of $1000 and a maximum
10fine of $100,000. If the violation involves a film, videotape,
11or other moving depiction, a violation of paragraph (6) of
12subsection (a) is a Class 2 felony with a mandatory minimum
13fine of $1000 and a maximum fine of $100,000.
14    (c-5) Where the child depicted is under the age of 13, a
15violation of paragraph (1), (2), (3), (4), (5), or (7) of
16subsection (a) is a Class X felony with a mandatory minimum
17fine of $2,000 and a maximum fine of $100,000. Where the child
18depicted is under the age of 13, a violation of paragraph (6)
19of subsection (a) is a Class 2 felony with a mandatory minimum
20fine of $1,000 and a maximum fine of $100,000. Where the child
21depicted is under the age of 13, a person who commits a
22violation of paragraph (1), (2), (3), (4), (5), or (7) of
23subsection (a) where the defendant has previously been
24convicted under the laws of this State or any other state of
25the offense of child pornography, aggravated child
26pornography, aggravated criminal sexual abuse, aggravated

 

 

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1criminal sexual assault, predatory criminal sexual assault of a
2child, or any of the offenses formerly known as rape, deviate
3sexual assault, indecent liberties with a child, or aggravated
4indecent liberties with a child where the victim was under the
5age of 18 years or an offense that is substantially equivalent
6to those offenses, is guilty of a Class X felony for which the
7person shall be sentenced to a term of imprisonment of not less
8than 9 years with a mandatory minimum fine of $2,000 and a
9maximum fine of $100,000. Where the child depicted is under the
10age of 13, a person who commits a violation of paragraph (6) of
11subsection (a) where the defendant has previously been
12convicted under the laws of this State or any other state of
13the offense of child pornography, aggravated child
14pornography, aggravated criminal sexual abuse, aggravated
15criminal sexual assault, predatory criminal sexual assault of a
16child, or any of the offenses formerly known as rape, deviate
17sexual assault, indecent liberties with a child, or aggravated
18indecent liberties with a child where the victim was under the
19age of 18 years or an offense that is substantially equivalent
20to those offenses, is guilty of a Class 1 felony with a
21mandatory minimum fine of $1,000 and a maximum fine of
22$100,000. The issue of whether the child depicted is under the
23age of 13 is an element of the offense to be resolved by the
24trier of fact.
25    (d) If a person is convicted of a second or subsequent
26violation of this Section within 10 years of a prior

 

 

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

 

 

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

 

 

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

 

 

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1        child pornography statute, Section 11-20.1 of the
2        Criminal Code of 1961. Section 50-5 also contained
3        other provisions.
4            (ii) In addition, Public Act 88-680 was entitled
5        "AN ACT to create a Safe Neighborhoods Law". (A)
6        Article 5 was entitled JUVENILE JUSTICE and amended the
7        Juvenile Court Act of 1987. (B) Article 15 was entitled
8        GANGS and amended various provisions of the Criminal
9        Code of 1961 and the Unified Code of Corrections. (C)
10        Article 20 was entitled ALCOHOL ABUSE and amended
11        various provisions of the Illinois Vehicle Code. (D)
12        Article 25 was entitled DRUG ABUSE and amended the
13        Cannabis Control Act and the Illinois Controlled
14        Substances Act. (E) Article 30 was entitled FIREARMS
15        and amended the Criminal Code of 1961 and the Code of
16        Criminal Procedure of 1963. (F) Article 35 amended the
17        Criminal Code of 1961, the Rights of Crime Victims and
18        Witnesses Act, and the Unified Code of Corrections. (G)
19        Article 40 amended the Criminal Code of 1961 to
20        increase the penalty for compelling organization
21        membership of persons. (H) Article 45 created the
22        Secure Residential Youth Care Facility Licensing Act
23        and amended the State Finance Act, the Juvenile Court
24        Act of 1987, the Unified Code of Corrections, and the
25        Private Correctional Facility Moratorium Act. (I)
26        Article 50 amended the WIC Vendor Management Act, the

 

 

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1        Firearm Owners Identification Card Act, the Juvenile
2        Court Act of 1987, the Criminal Code of 1961, the
3        Wrongs to Children Act, and the Unified Code of
4        Corrections.
5            (iii) On September 22, 1998, the Third District
6        Appellate Court in People v. Dainty, 701 N.E. 2d 118,
7        ruled that Public Act 88-680 violates the single
8        subject clause of the Illinois Constitution (Article
9        IV, Section 8 (d)) and was unconstitutional in its
10        entirety. As of the time this amendatory Act of 1999
11        was prepared, People v. Dainty was still subject to
12        appeal.
13            (iv) Child pornography is a vital concern to the
14        people of this State and the validity of future
15        prosecutions under the child pornography statute of
16        the Criminal Code of 1961 is in grave doubt.
17        (2) It is the purpose of this amendatory Act of 1999 to
18    prevent or minimize any problems relating to prosecutions
19    for child pornography that may result from challenges to
20    the constitutional validity of Public Act 88-680 by
21    re-enacting the Section relating to child pornography that
22    was included in Public Act 88-680.
23        (3) This amendatory Act of 1999 re-enacts Section
24    11-20.1 of the Criminal Code of 1961, as it has been
25    amended. This re-enactment is intended to remove any
26    question as to the validity or content of that Section; it

 

 

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1    is not intended to supersede any other Public Act that
2    amends the text of the Section as set forth in this
3    amendatory Act of 1999. The material is shown as existing
4    text (i.e., without underscoring) because, as of the time
5    this amendatory Act of 1999 was prepared, People v. Dainty
6    was subject to appeal to the Illinois Supreme Court.
7        (4) The re-enactment by this amendatory Act of 1999 of
8    Section 11-20.1 of the Criminal Code of 1961 relating to
9    child pornography that was amended by Public Act 88-680 is
10    not intended, and shall not be construed, to imply that
11    Public Act 88-680 is invalid or to limit or impair any
12    legal argument concerning whether those provisions were
13    substantially re-enacted by other Public Acts.
14(Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10;
1596-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-157, eff.
161-1-12; 97-227, eff. 1-1-12; revised 9-12-11.)
 
17    (720 ILCS 5/11-20.1B rep.)
18    Section 10. The Criminal Code of 1961 is amended by
19repealing Section 11-20.1B.".