HB4503 93RD GENERAL ASSEMBLY

LRB093 18424 RLC 44132 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB4503

Introduced 02/03/04, by James D. Brosnahan

SYNOPSIS AS INTRODUCED:

720 ILCS 5/11-9.4
720 ILCS 5/11-21	from Ch. 38, par. 11-21

Amends the Criminal Code of 1961. Provides that it is unlawful for a child sex offender to approach or initiate any form of contact with any persons under 18 years of age on a public way. Provides that it is unlawful for a child sex offender to entice, coerce, or encourage any person under 18 years of age to enter or proceed to the entrance of any vehicles, structures, or other real property. Provides that it is a violation of the statute prohibiting the distribution of harmful materials to a child to believe (instead of have knowledge) that the person to whom the harmful materials are being distributed is a child under 18 years of age.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

A BILL FOR

AN ACT in relation to criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Criminal Code of 1961 is amended by changing Sections 11-9.4 and 11-21 as follows:

(720 ILCS 5/11-9.4)

Sec. 11-9.4. Approaching, contacting, residing, or communicating with a child within certain places by child sex offenders prohibited.

(a) It is unlawful for a child sex offender to knowingly be present in any public park building or on real property comprising any public park when persons under the age of 18 are present in the building or on the grounds and to approach, contact, or communicate with a child under 18 years of age, unless the offender is a parent or guardian of a person under 18 years of age present in the building or on the grounds.

(b) It is unlawful for a child sex offender to knowingly loiter on a public way within 500 feet of a public park building or real property comprising any public park while persons under the age of 18 are present in the building or on the grounds and to approach, contact, or communicate with a child under 18 years of age, unless the offender is a parent or guardian of a person under 18 years of age present in the building or on the grounds.

(b-5) It is unlawful for a child sex offender to knowingly reside within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age. Nothing in this subsection (b-5) prohibits a child sex offender from residing within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age if the property is owned by the child sex offender and was purchased before the effective date of this amendatory Act of the 91st General Assembly.

(b-6) It is unlawful for a child sex offender to knowingly reside within 500 feet of the victim of the sex offense. Nothing in this subsection (b-6) prohibits a child sex offender from residing within 500 feet of the victim if the property in which the child sex offender resides is owned by the child sex offender and was purchased before the effective date of this amendatory Act of the 92nd General Assembly.

This subsection (b-6) does not apply if the victim of the sex offense is 21 years of age or older.

(c) It is unlawful for a child sex offender to knowingly operate, manage, be employed by, volunteer at, be associated with, or knowingly be present at any facility providing programs or services exclusively directed towards persons under the age of 18. This does not prohibit a child sex offender from owning the real property upon which the programs or services are offered, provided the child sex offender refrains from being present on the premises for the hours during which the programs or services are being offered.

(c-5) It is unlawful for a child sex offender to approach or initiate any form of contact with any persons under 18 years of age on a public way.

(c-6) It is unlawful for a child sex offender to entice, coerce, or encourage any person under 18 years of age to enter or proceed to the entrance of any vehicles, structures, or other real property.

(d) Definitions. In this Section:

(1) "Child sex offender" means any person who:

(i) has been charged under Illinois law, or any substantially similar federal law or law of another state, with a sex offense set forth in paragraph (2) of this subsection (d) or the attempt to commit an included sex offense, and:

(A) is convicted of such offense or an attempt to commit such offense; or

(B) is found not guilty by reason of insanity of such offense or an attempt to commit such offense; or

(C) is found not guilty by reason of insanity pursuant to subsection (c) of Section 104-25 of the Code of Criminal Procedure of 1963 of such offense or an attempt to commit such offense; or

(D) is the subject of a finding not resulting in an acquittal at a hearing conducted pursuant to subsection (a) of Section 104-25 of the Code of Criminal Procedure of 1963 for the alleged commission or attempted commission of such offense; or

(E) is found not guilty by reason of insanity following a hearing conducted pursuant to a federal law or the law of another state substantially similar to subsection (c) of Section 104-25 of the Code of Criminal Procedure of 1963 of such offense or of the attempted commission of such offense; or

(F) is the subject of a finding not resulting in an acquittal at a hearing conducted pursuant to a federal law or the law of another state substantially similar to subsection (a) of Section 104-25 of the Code of Criminal Procedure of 1963 for the alleged violation or attempted commission of such offense; or

(ii) is certified as a sexually dangerous person pursuant to the Illinois Sexually Dangerous Persons Act, or any substantially similar federal law or the law of another state, when any conduct giving rise to such certification is committed or attempted against a person less than 18 years of age; or

(iii) is subject to the provisions of Section 2 of the Interstate Agreements on Sexually Dangerous Persons Act.

Convictions that result from or are connected with the same act, or result from offenses committed at the same time, shall be counted for the purpose of this Section as one conviction. Any conviction set aside pursuant to law is not a conviction for purposes of this Section.

(2) Except as otherwise provided in paragraph (2.5), "sex offense" means:

(i) A violation of any of the following Sections of the Criminal Code of 1961: 10-7 (aiding and abetting child abduction under Section 10-5(b)(10)), 10-5(b)(10) (child luring), 11-6 (indecent solicitation of a child), 11-6.5 (indecent solicitation of an adult), 11-9 (public indecency when committed in a school, on the real property comprising a school, on a conveyance owned, leased, or contracted by a school to transport students to or from school or a school related activity, or in a public park), 11-9.1 (sexual exploitation of a child), 11-15.1 (soliciting for a juvenile prostitute), 11-17.1 (keeping a place of juvenile prostitution), 11-18.1 (patronizing a juvenile prostitute), 11-19.1 (juvenile pimping), 11-19.2 (exploitation of a child), 11-20.1 (child pornography), 11-21 (harmful material), 12-14.1 (predatory criminal sexual assault of a child), 12-33 (ritualized abuse of a child), 11-20 (obscenity) (when that offense was committed in any school, on real property comprising any school, on any conveyance owned, leased, or contracted by a school to transport students to or from school or a school related activity, or in a public park). An attempt to commit any of these offenses.

(ii) A violation of any of the following Sections of the Criminal Code of 1961, when the victim is a person under 18 years of age: 12-13 (criminal sexual assault), 12-14 (aggravated criminal sexual assault), 12-15 (criminal sexual abuse), 12-16 (aggravated criminal sexual abuse). An attempt to commit any of these offenses.

(iii) A violation of any of the following Sections of the Criminal Code of 1961, when the victim is a person under 18 years of age and the defendant is not a parent of the victim:

10-1 (kidnapping),

10-2 (aggravated kidnapping),

10-3 (unlawful restraint),

10-3.1 (aggravated unlawful restraint).

An attempt to commit any of these offenses.

(iv) A violation of any former law of this State substantially equivalent to any offense listed in clause (2)(i) of this subsection (d).

(2.5) For the purposes of subsection (b-5) only, a sex offense means:

(i) A violation of any of the following Sections of the Criminal Code of 1961:

10-5(b)(10) (child luring), 10-7 (aiding and abetting child abduction under Section 10-5(b)(10)), 11-6 (indecent solicitation of a child), 11-6.5 (indecent solicitation of an adult), 11-15.1 (soliciting for a juvenile prostitute), 11-17.1 (keeping a place of juvenile prostitution), 11-18.1 (patronizing a juvenile prostitute), 11-19.1 (juvenile pimping), 11-19.2 (exploitation of a child), 11-20.1 (child pornography), 12-14.1 (predatory criminal sexual assault of a child), or 12-33 (ritualized abuse of a child). An attempt to commit any of these offenses.

(ii) A violation of any of the following Sections of the Criminal Code of 1961, when the victim is a person under 18 years of age: 12-13 (criminal sexual assault), 12-14 (aggravated criminal sexual assault), 12-16 (aggravated criminal sexual abuse), and subsection (a) of Section 12-15 (criminal sexual abuse). An attempt to commit any of these offenses.

(iii) A violation of any of the following Sections of the Criminal Code of 1961, when the victim is a person under 18 years of age and the defendant is not a parent of the victim:

10-1 (kidnapping),

10-2 (aggravated kidnapping),

10-3 (unlawful restraint),

10-3.1 (aggravated unlawful restraint).

An attempt to commit any of these offenses.

(iv) A violation of any former law of this State substantially equivalent to any offense listed in this paragraph (2.5) of this subsection.

(3) A conviction for an offense of federal law or the law of another state that is substantially equivalent to any offense listed in paragraph (2) of this subsection (d) shall constitute a conviction for the purpose of this Section. A finding or adjudication as a sexually dangerous person under any federal law or law of another state that is substantially equivalent to the Sexually Dangerous Persons Act shall constitute an adjudication for the purposes of this Section.

(4) "Public park" includes a park, forest preserve, or conservation area under the jurisdiction of the State or a unit of local government.

(5) "Facility providing programs or services directed towards persons under the age of 18" means any facility providing programs or services exclusively directed towards persons under the age of 18.

(6) "Loiter" means:

(i) Standing, sitting idly, whether or not the person is in a vehicle or remaining in or around public park property.

(ii) Standing, sitting idly, whether or not the person is in a vehicle or remaining in or around public park property, for the purpose of committing or attempting to commit a sex offense.

(7) "Playground" means a piece of land owned or controlled by a unit of local government that is designated by the unit of local government for use solely or primarily for children's recreation.

(e) Sentence. A person who violates this Section is guilty of a Class 4 felony.

(Source: P.A. 91-458, eff. 1-1-00; 91-911, eff. 7-7-00; 92-828, eff. 8-22-02.)

(720 ILCS 5/11-21) (from Ch. 38, par. 11-21)

Sec. 11-21. Harmful material.

(a) Elements of the Offense.

A person who, believing with knowledge that a person is a child, that is a person under 18 years of age, or who fails to exercise reasonable care in ascertaining the true age of a child, knowingly distributes to, or sends, or causes to be sent to, or exhibits to, or offers to distribute or exhibit any harmful material to that person a child, is guilty of the offense of distribution of harmful material to a child a misdemeanor.

(b) Definitions.

(1) Material is harmful if, to the average person, applying contemporary standards, its predominant appeal, taken as a whole, is to prurient interest, that is a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters, and is material the redeeming social importance of which is substantially less than its prurient appeal.

(2) Material, as used in this Section means any writing, picture, record or other representation or embodiment.

(3) Distribute means to transfer possession of, whether with or without consideration.

(4) Knowingly, as used in this section means having knowledge of the contents of the subject matter, or recklessly failing to exercise reasonable inspection which would have disclosed the contents thereof.

(c) Interpretation of Evidence.

The predominant appeal to prurient interest of the material shall be judged with reference to average children of the same general age of the child to whom such material was offered, distributed, sent or exhibited, unless it appears from the nature of the matter or the circumstances of its dissemination, distribution or exhibition that it is designed for specially susceptible groups, in which case the predominant appeal of the material shall be judged with reference to its intended or probable recipient group.

In prosecutions under this section, where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate the material is being commercially exploited for the sake of its prurient appeal, such evidence is probative with respect to the nature of the material and can justify the conclusion that the redeeming social importance of the material is in fact substantially less than its prurient appeal.

(d) Sentence.

Distribution of harmful material in violation of this Section is a Class A misdemeanor. A second or subsequent offense is a Class 4 felony. If that person has utilized a computer web cam to send the harmful material, then each offense is a Class 4 felony.

(e) Affirmative Defenses.

(1) Nothing in this section shall prohibit any public library or any library operated by an accredited institution of higher education from circulating harmful material to any person under 18 years of age, provided such circulation is in aid of a legitimate scientific or educational purpose, and it shall be an affirmative defense in any prosecution for a violation of this section that the act charged was committed in aid of legitimate scientific or educational purposes.

(2) Nothing in this section shall prohibit any parent from distributing to his child any harmful material.

(3) Proof that the defendant demanded, was shown and acted in reliance upon any of the following documents as proof of the age of a child, shall be a defense to any criminal prosecution under this section: A document issued by the federal government or any state, county or municipal government or subdivision or agency thereof, including, but not limited to, a motor vehicle operator's license, a registration certificate issued under the Federal Selective Service Act or an identification card issued to a member of the armed forces.

(4) In the event an advertisement of harmful material as defined in this section culminates in the sale or distribution of such harmful material to a child, under circumstances where there was no personal confrontation of the child by the defendant, his employees or agents, as where the order or request for such harmful material was transmitted by mail, telephone, or similar means of communication, and delivery of such harmful material to the child was by mail, freight, or similar means of transport, it shall be a defense in any prosecution for a violation of this section that the advertisement contained the following statement, or a statement substantially similar thereto, and that the defendant required the purchaser to certify that he was not under 18 years of age and that the purchaser falsely stated that he was not under 18 years of age: "NOTICE: It is unlawful for any person under 18 years of age to purchase the matter herein advertised. Any person under 18 years of age who falsely states that he is not under 18 years of age for the purpose of obtaining the material advertised herein, is guilty of a Class B misdemeanor under the laws of the State of Illinois."

(f) Child Falsifying Age.

Any person under 18 years of age who falsely states, either orally or in writing, that he is not under the age of 18 years, or who presents or offers to any person any evidence of age and identity which is false or not actually his own for the purpose of ordering, obtaining, viewing, or otherwise procuring or attempting to procure or view any harmful material, is guilty of a Class B misdemeanor.

(Source: P.A. 77-2638.)