Sen. Jacqueline Y. Collins

Filed: 4/11/2011

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1038

2    AMENDMENT NO. ______. Amend Senate Bill 1038 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Criminal Code of 1961 is amended by
5changing Section 10-5 as follows:
 
6    (720 ILCS 5/10-5)  (from Ch. 38, par. 10-5)
7    Sec. 10-5. Child abduction.
8    (a) For purposes of this Section, the following terms have
9the following meanings:
10        (1) "Child" means a person who, at the time the alleged
11    violation occurred, was under the age of 18 or severely or
12    profoundly mentally retarded.
13        (2) "Detains" means taking or retaining physical
14    custody of a child, whether or not the child resists or
15    objects.
16        (2.1) "Express consent" means oral or written

 

 

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1    permission that is positive, direct, and unequivocal,
2    requiring no inference or implication to supply its
3    meaning.
4        (2.2) "Luring" means any knowing act to solicit,
5    entice, tempt, or attempt to attract the minor.
6        (3) "Lawful custodian" means a person or persons
7    granted legal custody of a child or entitled to physical
8    possession of a child pursuant to a court order. It is
9    presumed that, when the parties have never been married to
10    each other, the mother has legal custody of the child
11    unless a valid court order states otherwise. If an
12    adjudication of paternity has been completed and the father
13    has been assigned support obligations or visitation
14    rights, such a paternity order should, for the purposes of
15    this Section, be considered a valid court order granting
16    custody to the mother.
17        (4) "Putative father" means a man who has a reasonable
18    belief that he is the father of a child born of a woman who
19    is not his wife.
20        (5) "Unlawful purpose" means any misdemeanor or felony
21    violation of State law or a similar federal or sister state
22    law or local ordinance.
23    (b) A person commits the offense of child abduction when he
24or she does any one of the following:
25        (1) Intentionally violates any terms of a valid court
26    order granting sole or joint custody, care, or possession

 

 

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1    to another by concealing or detaining the child or removing
2    the child from the jurisdiction of the court.
3        (2) Intentionally violates a court order prohibiting
4    the person from concealing or detaining the child or
5    removing the child from the jurisdiction of the court.
6        (3) Intentionally conceals, detains, or removes the
7    child without the consent of the mother or lawful custodian
8    of the child if the person is a putative father and either:
9    (A) the paternity of the child has not been legally
10    established or (B) the paternity of the child has been
11    legally established but no orders relating to custody have
12    been entered. Notwithstanding the presumption created by
13    paragraph (3) of subsection (a), however, a mother commits
14    child abduction when she intentionally conceals or removes
15    a child, whom she has abandoned or relinquished custody of,
16    from an unadjudicated father who has provided sole ongoing
17    care and custody of the child in her absence.
18        (4) Intentionally conceals or removes the child from a
19    parent after filing a petition or being served with process
20    in an action affecting marriage or paternity but prior to
21    the issuance of a temporary or final order determining
22    custody.
23        (5) At the expiration of visitation rights outside the
24    State, intentionally fails or refuses to return or impedes
25    the return of the child to the lawful custodian in
26    Illinois.

 

 

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1        (6) Being a parent of the child, and if the parents of
2    that child are or have been married and there has been no
3    court order of custody, knowingly conceals the child for 15
4    days, and fails to make reasonable attempts within the
5    15-day period to notify the other parent as to the specific
6    whereabouts of the child, including a means by which to
7    contact the child, or to arrange reasonable visitation or
8    contact with the child. It is not a violation of this
9    Section for a person fleeing domestic violence to take the
10    child with him or her to housing provided by a domestic
11    violence program.
12        (7) Being a parent of the child, and if the parents of
13    the child are or have been married and there has been no
14    court order of custody, knowingly conceals, detains, or
15    removes the child with physical force or threat of physical
16    force.
17        (8) Knowingly conceals, detains, or removes the child
18    for payment or promise of payment at the instruction of a
19    person who has no legal right to custody.
20        (9) Knowingly retains in this State for 30 days a child
21    removed from another state without the consent of the
22    lawful custodian or in violation of a valid court order of
23    custody.
24        (10) Intentionally lures or attempts to lure a child
25    under the age of 16 into a motor vehicle, building,
26    housetrailer, or dwelling place without the consent of the

 

 

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1    child's parent or lawful custodian for other than a lawful
2    purpose. For the purposes of this item (10), the trier of
3    fact may infer that luring or attempted luring of a child
4    under the age of 16 into a motor vehicle, building,
5    housetrailer, or dwelling place without the express
6    consent of the child's parent or lawful custodian or with
7    the intent to avoid the express consent of the child's
8    parent or lawful custodian was for is prima facie evidence
9    of other than a lawful purpose.
10        (11) With the intent to obstruct or prevent efforts to
11    locate the child victim of a child abduction, knowingly
12    destroys, alters, conceals, or disguises physical evidence
13    or furnishes false information.
14    (c) It is an affirmative defense to subsections (b)(1)
15through (b)(10) of this Section that:
16        (1) the person had custody of the child pursuant to a
17    court order granting legal custody or visitation rights
18    that existed at the time of the alleged violation;
19        (2) the person had physical custody of the child
20    pursuant to a court order granting legal custody or
21    visitation rights and failed to return the child as a
22    result of circumstances beyond his or her control, and the
23    person notified and disclosed to the other parent or legal
24    custodian the specific whereabouts of the child and a means
25    by which the child could be contacted or made a reasonable
26    attempt to notify the other parent or lawful custodian of

 

 

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1    the child of those circumstances and made the disclosure
2    within 24 hours after the visitation period had expired and
3    returned the child as soon as possible;
4        (3) the person was fleeing an incidence or pattern of
5    domestic violence; or
6        (4) the person lured or attempted to lure a child under
7    the age of 16 into a motor vehicle, building, housetrailer,
8    or dwelling place for a lawful purpose in prosecutions
9    under paragraph (10) of subsection (b).
10    (d) A person convicted of child abduction under this
11Section is guilty of a Class 4 felony. A person convicted of
12child abduction under subsection (b)(10) shall undergo a sex
13offender evaluation prior to a sentence being imposed. A person
14convicted of a second or subsequent violation of paragraph (10)
15of subsection (b) of this Section is guilty of a Class 3
16felony. A person convicted of child abduction under subsection
17(b)(10) when the person has a prior conviction of a sex offense
18as defined in the Sex Offender Registration Act or any
19substantially similar federal, Uniform Code of Military
20Justice, sister state, or foreign government offense is guilty
21of a Class 2 felony. It is a factor in aggravation under
22subsections (b)(1) through (b)(10) of this Section for which a
23court may impose a more severe sentence under Section 5-8-1
24(730 ILCS 5/5-8-1) or Article 4.5 of Chapter V of the Unified
25Code of Corrections if, upon sentencing, the court finds
26evidence of any of the following aggravating factors:

 

 

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1        (1) that the defendant abused or neglected the child
2    following the concealment, detention, or removal of the
3    child;
4        (2) that the defendant inflicted or threatened to
5    inflict physical harm on a parent or lawful custodian of
6    the child or on the child with intent to cause that parent
7    or lawful custodian to discontinue criminal prosecution of
8    the defendant under this Section;
9        (3) that the defendant demanded payment in exchange for
10    return of the child or demanded that he or she be relieved
11    of the financial or legal obligation to support the child
12    in exchange for return of the child;
13        (4) that the defendant has previously been convicted of
14    child abduction;
15        (5) that the defendant committed the abduction while
16    armed with a deadly weapon or the taking of the child
17    resulted in serious bodily injury to another; or
18        (6) that the defendant committed the abduction while in
19    a school, regardless of the time of day or time of year; in
20    a playground; on any conveyance owned, leased, or
21    contracted by a school to transport students to or from
22    school or a school related activity; on the real property
23    of a school; or on a public way within 1,000 feet of the
24    real property comprising any school or playground. For
25    purposes of this paragraph (6), "playground" means a piece
26    of land owned or controlled by a unit of local government

 

 

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1    that is designated by the unit of local government for use
2    solely or primarily for children's recreation; and
3    "school" means a public or private elementary or secondary
4    school, community college, college, or university.
5    (e) The court may order the child to be returned to the
6parent or lawful custodian from whom the child was concealed,
7detained, or removed. In addition to any sentence imposed, the
8court may assess any reasonable expense incurred in searching
9for or returning the child against any person convicted of
10violating this Section.
11    (f) Nothing contained in this Section shall be construed to
12limit the court's contempt power.
13    (g) Every law enforcement officer investigating an alleged
14incident of child abduction shall make a written police report
15of any bona fide allegation and the disposition of that
16investigation. Every police report completed pursuant to this
17Section shall be compiled and recorded within the meaning of
18Section 5.1 of the Criminal Identification Act.
19    (h) Whenever a law enforcement officer has reasons to
20believe a child abduction has occurred, she or he shall provide
21the lawful custodian a summary of her or his rights under this
22Code, including the procedures and relief available to her or
23him.
24    (i) If during the course of an investigation under this
25Section the child is found in the physical custody of the
26defendant or another, the law enforcement officer shall return

 

 

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1the child to the parent or lawful custodian from whom the child
2was concealed, detained, or removed, unless there is good cause
3for the law enforcement officer or the Department of Children
4and Family Services to retain temporary protective custody of
5the child pursuant to the Abused and Neglected Child Reporting
6Act.
7(Source: P.A. 95-1052, eff. 7-1-09; 96-710, eff. 1-1-10;
896-1000, eff. 7-2-10.)".