98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB2647

 

Introduced 2/21/2013, by Rep. Emily McAsey

 

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

    Amends the Criminal Code of 2012 concerning child pornography. Provides that the possession of each individual film, videotape, photograph, or other similar visual reproduction or depiction by computer in violation of the child pornography statute constitutes a single and separate violation.


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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB2647LRB098 05661 RLC 35700 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 2012 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 or any severely or profoundly intellectually disabled
14    person where such child or severely or profoundly
15    intellectually disabled person is:
16            (i) actually or by simulation engaged in any act of
17        sexual penetration or sexual conduct with any person or
18        animal; or
19            (ii) actually or by simulation engaged in any act
20        of sexual penetration or sexual conduct involving the
21        sex organs of the child or severely or profoundly
22        intellectually disabled person and the mouth, anus, or
23        sex organs of another person or animal; or which

 

 

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

 

 

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

 

 

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

 

 

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1    act, pose, or setting described in subparagraphs (i)
2    through (vii) of paragraph (1) of this subsection.
3    (a-5) The possession of each individual film, videotape,
4photograph, or other similar visual reproduction or depiction
5by computer in violation of this Section constitutes a single
6and separate violation.
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), (2), (3), (4), (5), or (7) of
9subsection (a) is a Class X felony with a mandatory minimum
10fine of $2,000 and a maximum fine of $100,000. Where the child
11depicted is under the age of 13, a violation of paragraph (6)
12of subsection (a) is a Class 2 felony with a mandatory minimum
13fine of $1,000 and a maximum fine of $100,000. Where the child
14depicted is under the age of 13, a person who commits a
15violation of paragraph (1), (2), (3), (4), (5), or (7) of
16subsection (a) where the defendant has previously been
17convicted under the laws of this State or any other state of
18the offense of child pornography, aggravated child
19pornography, aggravated criminal sexual abuse, aggravated
20criminal sexual assault, predatory criminal sexual assault of a
21child, or any of the offenses formerly known as rape, deviate
22sexual assault, indecent liberties with a child, or aggravated
23indecent liberties with a child where the victim was under the
24age of 18 years or an offense that is substantially equivalent
25to those offenses, is guilty of a Class X felony for which the
26person shall be sentenced to a term of imprisonment of not less

 

 

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1than 9 years with a mandatory minimum fine of $2,000 and a
2maximum fine of $100,000. Where the child depicted is under the
3age of 13, a person who commits a violation of paragraph (6) of
4subsection (a) where the defendant has previously been
5convicted under the laws of this State or any other state of
6the offense of child pornography, aggravated child
7pornography, aggravated criminal sexual abuse, aggravated
8criminal sexual assault, predatory criminal sexual assault of a
9child, or any of the offenses formerly known as rape, deviate
10sexual assault, indecent liberties with a child, or aggravated
11indecent liberties with a child where the victim was under the
12age of 18 years or an offense that is substantially equivalent
13to those offenses, is guilty of a Class 1 felony with a
14mandatory minimum fine of $1,000 and a maximum fine of
15$100,000. The issue of whether the child depicted is under the
16age of 13 is an element of the offense to be resolved by the
17trier of fact.
18    (d) If a person is convicted of a second or subsequent
19violation of this Section within 10 years of a prior
20conviction, the court shall order a presentence psychiatric
21examination of the person. The examiner shall report to the
22court whether treatment of the person is necessary.
23    (e) Any film, videotape, photograph or other similar visual
24reproduction or depiction by computer which includes a child
25under the age of 18 or a severely or profoundly intellectually
26disabled person engaged in any activity described in

 

 

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1subparagraphs (i) through (vii) or paragraph 1 of subsection
2(a), and any material or equipment used or intended for use in
3photographing, filming, printing, producing, reproducing,
4manufacturing, projecting, exhibiting, depiction by computer,
5or disseminating such material shall be seized and forfeited in
6the manner, method and procedure provided by Section 36-1 of
7this Code for the seizure and forfeiture of vessels, vehicles
8and aircraft.
9    In addition, any person convicted under this Section is
10subject to the property forfeiture provisions set forth in
11Article 124B of the Code of Criminal Procedure of 1963.
12    (e-5) Upon the conclusion of a case brought under this
13Section, the court shall seal all evidence depicting a victim
14or witness that is sexually explicit. The evidence may be
15unsealed and viewed, on a motion of the party seeking to unseal
16and view the evidence, only for good cause shown and in the
17discretion of the court. The motion must expressly set forth
18the purpose for viewing the material. The State's attorney and
19the victim, if possible, shall be provided reasonable notice of
20the hearing on the motion to unseal the evidence. Any person
21entitled to notice of a hearing under this subsection (e-5) may
22object to the motion.
23    (f) Definitions. For the purposes of this Section:
24        (1) "Disseminate" means (i) to sell, distribute,
25    exchange or transfer possession, whether with or without
26    consideration or (ii) to make a depiction by computer

 

 

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1    available for distribution or downloading through the
2    facilities of any telecommunications network or through
3    any other means of transferring computer programs or data
4    to a computer.
5        (2) "Produce" means to direct, promote, advertise,
6    publish, manufacture, issue, present or show.
7        (3) "Reproduce" means to make a duplication or copy.
8        (4) "Depict by computer" means to generate or create,
9    or cause to be created or generated, a computer program or
10    data that, after being processed by a computer either alone
11    or in conjunction with one or more computer programs,
12    results in a visual depiction on a computer monitor,
13    screen, or display.
14        (5) "Depiction by computer" means a computer program or
15    data that, after being processed by a computer either alone
16    or in conjunction with one or more computer programs,
17    results in a visual depiction on a computer monitor,
18    screen, or display.
19        (6) "Computer", "computer program", and "data" have
20    the meanings ascribed to them in Section 16D-2 of this
21    Code.
22        (7) For the purposes of this Section, "child
23    pornography" includes a film, videotape, photograph, or
24    other similar visual medium or reproduction or depiction by
25    computer that is, or appears to be, that of a person,
26    either in part, or in total, under the age of 18 or a

 

 

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1    severely or profoundly intellectually disabled person,
2    regardless of the method by which the film, videotape,
3    photograph, or other similar visual medium or reproduction
4    or depiction by computer is created, adopted, or modified
5    to appear as such. "Child pornography" also includes a
6    film, videotape, photograph, or other similar visual
7    medium or reproduction or depiction by computer that is
8    advertised, promoted, presented, described, or distributed
9    in such a manner that conveys the impression that the film,
10    videotape, photograph, or other similar visual medium or
11    reproduction or depiction by computer is of a person under
12    the age of 18 or a severely or profoundly intellectually
13    disabled person.
14    (g) Re-enactment; findings; purposes.
15        (1) The General Assembly finds and declares that:
16            (i) Section 50-5 of Public Act 88-680, effective
17        January 1, 1995, contained provisions amending the
18        child pornography statute, Section 11-20.1 of the
19        Criminal Code of 1961. Section 50-5 also contained
20        other provisions.
21            (ii) In addition, Public Act 88-680 was entitled
22        "AN ACT to create a Safe Neighborhoods Law". (A)
23        Article 5 was entitled JUVENILE JUSTICE and amended the
24        Juvenile Court Act of 1987. (B) Article 15 was entitled
25        GANGS and amended various provisions of the Criminal
26        Code of 1961 and the Unified Code of Corrections. (C)

 

 

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1        Article 20 was entitled ALCOHOL ABUSE and amended
2        various provisions of the Illinois Vehicle Code. (D)
3        Article 25 was entitled DRUG ABUSE and amended the
4        Cannabis Control Act and the Illinois Controlled
5        Substances Act. (E) Article 30 was entitled FIREARMS
6        and amended the Criminal Code of 1961 and the Code of
7        Criminal Procedure of 1963. (F) Article 35 amended the
8        Criminal Code of 1961, the Rights of Crime Victims and
9        Witnesses Act, and the Unified Code of Corrections. (G)
10        Article 40 amended the Criminal Code of 1961 to
11        increase the penalty for compelling organization
12        membership of persons. (H) Article 45 created the
13        Secure Residential Youth Care Facility Licensing Act
14        and amended the State Finance Act, the Juvenile Court
15        Act of 1987, the Unified Code of Corrections, and the
16        Private Correctional Facility Moratorium Act. (I)
17        Article 50 amended the WIC Vendor Management Act, the
18        Firearm Owners Identification Card Act, the Juvenile
19        Court Act of 1987, the Criminal Code of 1961, the
20        Wrongs to Children Act, and the Unified Code of
21        Corrections.
22            (iii) On September 22, 1998, the Third District
23        Appellate Court in People v. Dainty, 701 N.E. 2d 118,
24        ruled that Public Act 88-680 violates the single
25        subject clause of the Illinois Constitution (Article
26        IV, Section 8 (d)) and was unconstitutional in its

 

 

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1        entirety. As of the time this amendatory Act of 1999
2        was prepared, People v. Dainty was still subject to
3        appeal.
4            (iv) Child pornography is a vital concern to the
5        people of this State and the validity of future
6        prosecutions under the child pornography statute of
7        the Criminal Code of 1961 is in grave doubt.
8        (2) It is the purpose of this amendatory Act of 1999 to
9    prevent or minimize any problems relating to prosecutions
10    for child pornography that may result from challenges to
11    the constitutional validity of Public Act 88-680 by
12    re-enacting the Section relating to child pornography that
13    was included in Public Act 88-680.
14        (3) This amendatory Act of 1999 re-enacts Section
15    11-20.1 of the Criminal Code of 1961, as it has been
16    amended. This re-enactment is intended to remove any
17    question as to the validity or content of that Section; it
18    is not intended to supersede any other Public Act that
19    amends the text of the Section as set forth in this
20    amendatory Act of 1999. The material is shown as existing
21    text (i.e., without underscoring) because, as of the time
22    this amendatory Act of 1999 was prepared, People v. Dainty
23    was subject to appeal to the Illinois Supreme Court.
24        (4) The re-enactment by this amendatory Act of 1999 of
25    Section 11-20.1 of the Criminal Code of 1961 relating to
26    child pornography that was amended by Public Act 88-680 is

 

 

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1    not intended, and shall not be construed, to imply that
2    Public Act 88-680 is invalid or to limit or impair any
3    legal argument concerning whether those provisions were
4    substantially re-enacted by other Public Acts.
5(Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10;
696-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-157, eff.
71-1-12; 97-227, eff. 1-1-12; 97-995, eff. 1-1-13; 97-1109, eff.
81-1-13.)