Full Text of HB3285 97th General Assembly
HB3285eng 97TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Criminal Code of 1961 is amended by changing | 5 | | 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 the offense of 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 | 12 | | knows or reasonably should know to be under the age of 18 | 13 | | or any
severely or profoundly mentally retarded person | 14 | | where such child or severely
or profoundly mentally | 15 | | retarded 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 | | mentally retarded person and the mouth, anus, or sex | 23 | | organs of
another person or animal; or which involves |
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| 1 | | the mouth, anus or sex organs
of the child or severely | 2 | | or profoundly mentally retarded
person and the sex | 3 | | 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
mentally retarded person whom the person knows |
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| 1 | | or reasonably should know to be
under the age of 18 or to | 2 | | be a severely or profoundly mentally retarded person,
| 3 | | engaged in any activity described in subparagraphs (i) | 4 | | 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 mentally retarded person engaged in | 11 | | any activity described in
subparagraphs (i) through (vii) | 12 | | of paragraph (1) of this subsection; or
| 13 | | (4) solicits, uses, persuades, induces, entices, or | 14 | | coerces any child
whom he knows or reasonably should know | 15 | | to be under
the age of 18 or a severely or profoundly | 16 | | mentally
retarded person to appear in any stage play, live | 17 | | presentation, film,
videotape, photograph or other similar | 18 | | visual reproduction or depiction
by computer in which the
| 19 | | child or severely or profoundly mentally retarded person
is | 20 | | or will be depicted, actually or by simulation, in any act, | 21 | | pose or
setting described in subparagraphs (i) through | 22 | | (vii) of paragraph (1) of
this subsection; or
| 23 | | (5) is a parent, step-parent, legal guardian or other | 24 | | person having
care or custody
of a child whom the person | 25 | | knows or reasonably should know to be under
the age of 18 | 26 | | or a severely or profoundly mentally
retarded person and |
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| 1 | | who knowingly permits, induces, promotes, or arranges
for | 2 | | such child or severely or profoundly mentally retarded
| 3 | | person to appear in any stage play, live performance, film, | 4 | | videotape,
photograph or other similar visual | 5 | | presentation, portrayal or simulation or
depiction by | 6 | | computer of any act or activity described in subparagraphs | 7 | | (i)
through (vii) of paragraph (1) of this subsection; or
| 8 | | (6) with knowledge of the nature or content thereof, | 9 | | possesses any film,
videotape, photograph or other similar | 10 | | visual reproduction or depiction by
computer of any child | 11 | | or severely or profoundly mentally retarded person
whom the | 12 | | person knows or reasonably should know to be under the age | 13 | | of 18
or to be a severely or profoundly mentally retarded
| 14 | | person, engaged in any activity described in subparagraphs | 15 | | (i) through
(vii) of paragraph (1) of this subsection; or
| 16 | | (7) solicits, uses, persuades, induces, entices, or | 17 | | coerces a person
to provide a child under the age of 18 or | 18 | | a severely or profoundly mentally
retarded person to appear | 19 | | in any videotape, photograph, film, stage play, live
| 20 | | presentation, or other similar visual reproduction or | 21 | | depiction by computer
in which the child or severely or | 22 | | profoundly mentally retarded person will be
depicted, | 23 | | actually or by simulation, in any act, pose, or setting | 24 | | described in
subparagraphs (i) through (vii) of paragraph | 25 | | (1) of this subsection ; or .
| 26 | | (8) knowingly films, videotapes, photographs, or |
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| 1 | | otherwise depicts or portrays by means of any similar | 2 | | visual medium or reproduction or depicts by computer any | 3 | | actual or simulated act of criminal sexual assault, | 4 | | aggravated criminal sexual assault, predatory criminal | 5 | | sexual assault of a child, criminal sexual abuse, or | 6 | | aggravated criminal sexual abuse involving any child whom | 7 | | he or she knows or reasonably should know to be under the | 8 | | age of 18 or any severely or profoundly mentally retarded | 9 | | person, or knowingly possesses such film, videotape, | 10 | | photograph, or other depiction by computer.
| 11 | | (b) (1) It shall be an affirmative defense to a charge of | 12 | | child
pornography that the defendant reasonably believed, | 13 | | under all of the
circumstances, that the child was 18 years | 14 | | of age or older or that the
person was not a severely or | 15 | | profoundly mentally
retarded person but only where, prior | 16 | | to the act or acts giving rise to a
prosecution under this | 17 | | Section, he took some affirmative action or made a
bonafide | 18 | | inquiry designed to ascertain whether the child was 18 | 19 | | years of
age or older or that the person was not a severely | 20 | | or
profoundly mentally retarded person and his reliance | 21 | | upon the information
so obtained was clearly reasonable.
| 22 | | (1.5) Telecommunications carriers, commercial mobile | 23 | | service providers, and providers of information services, | 24 | | including, but not limited to, Internet service providers | 25 | | and hosting service providers, are not liable under this | 26 | | Section, except for willful and wanton misconduct, by |
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| 1 | | virtue of the transmission, storage, or caching of | 2 | | electronic communications or messages of others or by | 3 | | virtue of the provision of other related | 4 | | telecommunications, commercial mobile services, or | 5 | | information services used by others in violation of this | 6 | | Section.
| 7 | | (2) (Blank).
| 8 | | (3) The charge of child pornography shall not apply to | 9 | | the performance
of official duties by law enforcement or | 10 | | prosecuting officers or persons employed by law | 11 | | enforcement or prosecuting agencies, court personnel
or | 12 | | attorneys, nor to bonafide treatment or professional | 13 | | education programs
conducted by licensed physicians, | 14 | | psychologists or social workers.
| 15 | | (4) Possession by the defendant of more than one of the | 16 | | same film,
videotape or visual reproduction or depiction by | 17 | | computer in which child
pornography is depicted
shall raise | 18 | | a rebuttable presumption that the defendant possessed such
| 19 | | materials with the intent to disseminate them.
| 20 | | (5) The charge of child pornography does not apply to a | 21 | | person who does
not voluntarily possess a film, videotape, | 22 | | or visual reproduction or depiction
by computer in which | 23 | | child pornography is depicted. Possession is voluntary if
| 24 | | the defendant knowingly procures or receives a film, | 25 | | videotape, or visual
reproduction or depiction for a | 26 | | sufficient time to be able to terminate his
or her |
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| 1 | | possession.
| 2 | | (6) Any violation of paragraph (1), (2), (3), (4), (5), | 3 | | or (7) of subsection (a) that includes a child engaged in, | 4 | | solicited for, depicted in, or posed in any act of sexual | 5 | | penetration or bound, fettered, or subject to sadistic, | 6 | | masochistic, or sadomasochistic abuse in a sexual context | 7 | | shall be deemed a crime of violence. | 8 | | (c) Violation of paragraph (1), (4), (5), or (7) of | 9 | | subsection (a) is a
Class 1 felony with a mandatory minimum | 10 | | fine of $2,000 and a maximum fine of
$100,000. Violation of | 11 | | paragraph (3) of subsection (a) is a Class 1 felony
with a | 12 | | mandatory minimum fine of $1500 and a maximum fine of $100,000.
| 13 | | Violation of paragraph (2) of subsection (a) is a Class 1 | 14 | | felony with a
mandatory minimum fine of $1000 and a maximum | 15 | | fine of $100,000. Violation of
paragraph (6) of subsection (a) | 16 | | is a Class 3 felony with a mandatory
minimum fine of $1000 and | 17 | | a maximum fine of $100,000. Violation of
paragraph (8) of | 18 | | subsection (a) is a Class X felony for which the defendant | 19 | | shall be sentenced to a term of imprisonment of not less than 9 | 20 | | years and not more than 40 years.
| 21 | | (d) If a person is convicted of a second or subsequent | 22 | | violation of
this Section within 10 years of a prior | 23 | | conviction, the court shall order a
presentence psychiatric | 24 | | examination of the person. The examiner shall report
to the | 25 | | court whether treatment of the person is necessary.
| 26 | | (e) Any film, videotape, photograph or other similar visual |
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| 1 | | reproduction
or depiction by computer which includes a child | 2 | | under the age of 18 or a
severely or profoundly mentally | 3 | | retarded person engaged in any activity
described in | 4 | | subparagraphs (i) through (vii) or paragraph 1 of subsection
| 5 | | (a), and any material or equipment used or intended for use in | 6 | | photographing,
filming, printing, producing, reproducing, | 7 | | manufacturing, projecting,
exhibiting, depiction by computer, | 8 | | or disseminating such material shall be
seized and forfeited in | 9 | | the manner, method and procedure provided by Section
36-1 of | 10 | | this Code for the seizure and forfeiture of vessels, vehicles | 11 | | and
aircraft.
| 12 | | In addition, any person convicted under this Section is | 13 | | subject to the property forfeiture provisions set forth in | 14 | | Article 124B of the Code of Criminal Procedure of 1963. | 15 | | (e-5) Upon the conclusion of a case brought under this | 16 | | Section, the court
shall seal all evidence depicting a victim | 17 | | or witness that is sexually
explicit. The evidence may be | 18 | | unsealed and viewed, on a motion of the party
seeking to unseal | 19 | | and view the evidence, only for good cause shown and in the
| 20 | | discretion of the court. The motion must expressly set forth | 21 | | the purpose for
viewing the material. The State's attorney and | 22 | | the victim, if possible, shall
be provided reasonable notice of | 23 | | the hearing on the motion to unseal the
evidence. Any person | 24 | | entitled to notice of a hearing under this subsection
(e-5) may | 25 | | object to the motion.
| 26 | | (f) Definitions. For the purposes of this Section:
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| 1 | | (1) "Disseminate" means (i) to sell, distribute, | 2 | | exchange or transfer
possession, whether with or without | 3 | | consideration or (ii) to make a depiction
by computer | 4 | | available for distribution or downloading through the | 5 | | facilities
of any telecommunications network or through | 6 | | any other means of transferring
computer programs or data | 7 | | to a computer.
| 8 | | (2) "Produce" means to direct, promote, advertise, | 9 | | publish, manufacture,
issue, present or show.
| 10 | | (3) "Reproduce" means to make a duplication or copy.
| 11 | | (4) "Depict by computer" means to generate or create, | 12 | | or cause to be
created or generated, a computer program or | 13 | | data that, after being processed by
a computer either alone | 14 | | or in conjunction with one or more computer programs,
| 15 | | results in a visual depiction on a computer monitor, | 16 | | screen, or display.
| 17 | | (5) "Depiction by computer" means a computer program or | 18 | | data that, after
being processed by a computer either alone | 19 | | or in conjunction with one or more
computer programs, | 20 | | results in a visual depiction on a computer monitor, | 21 | | screen,
or display.
| 22 | | (6) "Computer", "computer program", and "data" have | 23 | | the meanings
ascribed to them in Section 16D-2 of this | 24 | | Code.
| 25 | | (7) "Child" includes a film, videotape, photograph, or | 26 | | other similar
visual medium or reproduction or depiction by |
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| 1 | | computer that is, or appears to
be, that of a person, | 2 | | either in part, or in total, under the age of 18,
| 3 | | regardless of the method by which the film, videotape, | 4 | | photograph, or other
similar visual medium or reproduction | 5 | | or depiction by computer is created,
adopted, or modified | 6 | | to appear as such. "Child" also includes a film,
videotape, | 7 | | photograph, or other similar visual medium or reproduction | 8 | | or
depiction by computer that is advertised, promoted, | 9 | | presented, described, or
distributed in such a manner that | 10 | | conveys the impression that the film,
videotape, | 11 | | photograph, or other similar visual medium or reproduction | 12 | | or
depiction by computer is of a person under the age of | 13 | | 18.
| 14 | | (8) "Sexual penetration" and "sexual conduct" have the | 15 | | meanings ascribed
to them in Section 12-12 of this Code.
| 16 | | (g) Re-enactment; findings; purposes.
| 17 | | (1) The General Assembly finds and declares that:
| 18 | | (i) Section 50-5 of Public Act 88-680, effective | 19 | | January 1, 1995,
contained provisions amending the | 20 | | child pornography statute, Section 11-20.1
of the | 21 | | Criminal Code of 1961. Section 50-5 also contained | 22 | | other provisions.
| 23 | | (ii) In addition, Public Act 88-680 was entitled | 24 | | "AN ACT to create a
Safe Neighborhoods Law". (A) | 25 | | Article 5 was entitled JUVENILE JUSTICE and
amended the | 26 | | Juvenile Court Act of 1987. (B) Article 15 was entitled |
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| 1 | | GANGS and
amended various provisions of the Criminal | 2 | | Code of 1961 and the Unified Code
of Corrections. (C) | 3 | | Article 20 was entitled ALCOHOL ABUSE and amended | 4 | | various
provisions of the Illinois Vehicle Code. (D) | 5 | | Article 25 was entitled DRUG
ABUSE and amended the | 6 | | Cannabis Control Act and the Illinois Controlled
| 7 | | Substances Act. (E) Article 30 was entitled FIREARMS | 8 | | and amended the Criminal
Code of 1961 and the Code of | 9 | | Criminal Procedure of 1963. (F) Article 35
amended the | 10 | | Criminal Code of 1961, the Rights of Crime Victims and | 11 | | Witnesses
Act, and the Unified Code of Corrections. (G) | 12 | | Article 40 amended the Criminal
Code of 1961 to | 13 | | increase the penalty for compelling organization | 14 | | membership of
persons. (H) Article 45 created the | 15 | | Secure Residential Youth Care Facility
Licensing Act | 16 | | and amended the State Finance Act, the Juvenile Court | 17 | | Act of
1987, the Unified Code of Corrections, and the | 18 | | Private Correctional Facility
Moratorium Act. (I) | 19 | | Article 50 amended the WIC Vendor Management Act, the
| 20 | | Firearm Owners Identification Card Act, the Juvenile | 21 | | Court Act of 1987, the
Criminal Code of 1961, the | 22 | | Wrongs to Children Act, and the Unified Code of
| 23 | | Corrections.
| 24 | | (iii) On September 22, 1998, the Third District | 25 | | Appellate Court in
People v. Dainty, 701 N.E. 2d 118, | 26 | | ruled that Public Act 88-680 violates the
single |
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| 1 | | subject clause of the Illinois Constitution (Article | 2 | | IV, Section 8 (d))
and was unconstitutional in its | 3 | | entirety. As of the time this amendatory Act
of 1999 | 4 | | was prepared, People v. Dainty was still subject to | 5 | | appeal.
| 6 | | (iv) Child pornography is a vital concern to the | 7 | | people of this State
and the validity of future | 8 | | prosecutions under the child pornography statute of
| 9 | | the Criminal Code of 1961 is in grave doubt.
| 10 | | (2) It is the purpose of this amendatory Act of 1999 to | 11 | | prevent or
minimize any problems relating to prosecutions | 12 | | for child pornography that may
result from challenges to | 13 | | the constitutional validity of Public Act 88-680 by
| 14 | | re-enacting the Section relating to child pornography that | 15 | | was included in
Public Act 88-680.
| 16 | | (3) This amendatory Act of 1999 re-enacts Section | 17 | | 11-20.1 of the
Criminal Code of 1961, as it has been | 18 | | amended. This re-enactment is intended
to remove any | 19 | | question as to the validity or content of that Section; it | 20 | | is not
intended to supersede any other Public Act that | 21 | | amends the text of the Section
as set forth in this | 22 | | amendatory Act of 1999. The material is shown as existing
| 23 | | text (i.e., without underscoring) because, as of the time | 24 | | this amendatory Act
of 1999 was prepared, People v. Dainty | 25 | | was subject to appeal to the Illinois
Supreme Court.
| 26 | | (4) The re-enactment by this amendatory Act of 1999 of |
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| 1 | | Section 11-20.1 of
the Criminal Code of 1961 relating to | 2 | | child pornography that was amended by
Public Act 88-680 is | 3 | | not intended, and shall not be construed, to imply that
| 4 | | Public Act 88-680 is invalid or to limit or impair any | 5 | | legal argument
concerning whether those provisions were | 6 | | substantially re-enacted by other
Public Acts.
| 7 | | (Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10; | 8 | | 96-1000, eff. 7-2-10 .)
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