State of Illinois
91st General Assembly
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91_HB1100eng

 
HB1100 Engrossed                               LRB9101204RCpk

 1        AN ACT to amend the Criminal Code  of  1961  by  changing
 2    Sections 11-20.1 and 11-20.1A.

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

 5        Section 5.  The Criminal  Code  of  1961  is  amended  by
 6    changing Sections 11-20.1 and 11-20.1A as follows:

 7        (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
 8        Sec. 11-20.1.  Child pornography.
 9        (a)  A  person  commits  the offense of child pornography
10    who:
11             (1)  films, videotapes,  photographs,  or  otherwise
12        depicts or portrays by means of any similar visual medium
13        or  reproduction or depicts by computer any child whom he
14        knows or reasonably should know to be under the age of 18
15        or any institutionalized severely or profoundly  mentally
16        retarded  person  where  such  child or institutionalized
17        severely or profoundly mentally retarded person is:
18                  (i)  actually or by simulation engaged  in  any
19             act of sexual intercourse with any person or animal;
20             or
21                  (ii)  actually  or by simulation engaged in any
22             act of sexual contact involving the  sex  organs  of
23             the   child   or   institutionalized   severely   or
24             profoundly  mentally  retarded person and the mouth,
25             anus, or sex organs of another person or animal;  or
26             which  involves the mouth, anus or sex organs of the
27             child or institutionalized  severely  or  profoundly
28             mentally  retarded  person  and  the  sex  organs of
29             another person or animal; or
30                  (iii)  actually or by simulation engaged in any
31             act of masturbation; or
 
HB1100 Engrossed            -2-                LRB9101204RCpk
 1                  (iv)  actually or by  simulation  portrayed  as
 2             being  the  object  of, or otherwise engaged in, any
 3             act  of  lewd  fondling,  touching,   or   caressing
 4             involving another person or animal; or
 5                  (v)  actually  or  by simulation engaged in any
 6             act  of  excretion  or  urination  within  a  sexual
 7             context; or
 8                  (vi)  actually or by  simulation  portrayed  or
 9             depicted as bound, fettered, or subject to sadistic,
10             masochistic,  or sadomasochistic abuse in any sexual
11             context; or
12                  (vii)  depicted  or  portrayed  in  any   pose,
13             posture  or  setting  involving a lewd exhibition of
14             the unclothed genitals, pubic area, buttocks, or, if
15             such  person  is  female,  a  fully   or   partially
16             developed breast of the child or other person; or
17             (2)  with  the  knowledge  of  the nature or content
18        thereof, reproduces, disseminates, offers to disseminate,
19        exhibits or possesses  with  intent  to  disseminate  any
20        film,  videotape,  photograph  or  other  similar  visual
21        reproduction  or  depiction  by  computer of any child or
22        institutionalized   severely   or   profoundly   mentally
23        retarded person  whom  the  person  knows  or  reasonably
24        should  know  to  be  under  the  age  of  18 or to be an
25        institutionalized   severely   or   profoundly   mentally
26        retarded person, engaged in  any  activity  described  in
27        subparagraphs  (i) through (vii) of paragraph (1) of this
28        subsection; or
29             (3)  with knowledge of the subject matter  or  theme
30        thereof, produces any stage play, live performance, film,
31        videotape  or other similar visual portrayal or depiction
32        by computer which includes a child whom the person  knows
33        or reasonably should know to be under the age of 18 or an
34        institutionalized   severely   or   profoundly   mentally
 
HB1100 Engrossed            -3-                LRB9101204RCpk
 1        retarded  person  engaged  in  any  activity described in
 2        subparagraphs (i) through (vii) of paragraph (1) of  this
 3        subsection; or
 4             (4)  solicits, uses, persuades, induces, entices, or
 5        coerces any child whom he knows or reasonably should know
 6        to  be  under  the  age  of  18  or  an institutionalized
 7        severely or profoundly mentally retarded person to appear
 8        in any stage play, live  presentation,  film,  videotape,
 9        photograph   or  other  similar  visual  reproduction  or
10        depiction   by   computer   in   which   the   child   or
11        institutionalized   severely   or   profoundly   mentally
12        retarded person is or will be depicted,  actually  or  by
13        simulation,  in  any  act,  pose  or setting described in
14        subparagraphs (i) through (vii) of paragraph (1) of  this
15        subsection; or
16             (5)  is  a  parent,  step-parent,  legal guardian or
17        other person having care or custody of a child  whom  the
18        person  knows  or  reasonably should know to be under the
19        age of 18 or an institutionalized severely or  profoundly
20        mentally  retarded  person  and  who  knowingly  permits,
21        induces,   promotes,   or  arranges  for  such  child  or
22        institutionalized   severely   or   profoundly   mentally
23        retarded  person  to  appear  in  any  stage  play,  live
24        performance, film, videotape, photograph or other similar
25        visual presentation, portrayal or simulation or depiction
26        by  computer  of  any  act  or  activity   described   in
27        subparagraphs  (i) through (vii) of paragraph (1) of this
28        subsection; or
29             (6)  with  knowledge  of  the  nature   or   content
30        thereof,  possesses  any  film,  videotape, photograph or
31        other  similar  visual  reproduction  or   depiction   by
32        computer  of  any  child or institutionalized severely or
33        profoundly mentally retarded person whom the person knows
34        or reasonably should know to be under the age of 18 or to
 
HB1100 Engrossed            -4-                LRB9101204RCpk
 1        be an institutionalized severely or  profoundly  mentally
 2        retarded  person,  engaged  in  any activity described in
 3        subparagraphs (i) through (vii) of paragraph (1) of  this
 4        subsection; or
 5             (7)  solicits, uses, persuades, induces, entices, or
 6        coerces  a  person to provide a child under the age of 18
 7        or an institutionalized severely or  profoundly  mentally
 8        retarded  person  to appear in any videotape, photograph,
 9        film, stage play, live  presentation,  or  other  similar
10        visual reproduction or depiction by computer in which the
11        child  or  an  institutionalized  severely  or profoundly
12        mentally retarded person will be depicted, actually or by
13        simulation, in any act, pose,  or  setting  described  in
14        subparagraphs  (i) through (vii) of paragraph (1) of this
15        subsection.
16        (b) (1)  It shall be an affirmative defense to  a  charge
17    of  child pornography that the defendant reasonably believed,
18    under all of the circumstances, that the child was  18  years
19    of   age   or   older   or   that   the  person  was  not  an
20    institutionalized severely or  profoundly  mentally  retarded
21    person  but  only where, prior to the act or acts giving rise
22    to a prosecution under this Section, he took some affirmative
23    action or made  a  bonafide  inquiry  designed  to  ascertain
24    whether  the  child  was 18 years of age or older or that the
25    person was not an institutionalized  severely  or  profoundly
26    mentally   retarded   person   and   his  reliance  upon  the
27    information so obtained was clearly reasonable.
28             (2)  (Blank).
29             (3)  The charge of child pornography shall not apply
30        to the performance of official duties by law  enforcement
31        or  prosecuting  officers,  court personnel or attorneys,
32        nor  to  bonafide  treatment  or  professional  education
33        programs conducted by licensed physicians,  psychologists
34        or social workers.
 
HB1100 Engrossed            -5-                LRB9101204RCpk
 1             (4)  Possession by the defendant of more than one of
 2        the  same  film,  videotape  or  visual  reproduction  or
 3        depiction  by  computer  in  which  child  pornography is
 4        depicted shall raise a rebuttable  presumption  that  the
 5        defendant  possessed  such  materials  with the intent to
 6        disseminate them.
 7             (5)  The charge of child pornography does not  apply
 8        to  a  person  who  does  not voluntarily possess a film,
 9        videotape,  or  visual  reproduction  or   depiction   by
10        computer   in   which   child  pornography  is  depicted.
11        Possession  is  voluntary  if  the  defendant   knowingly
12        procures   or  receives  a  film,  videotape,  or  visual
13        reproduction or depiction for a  sufficient  time  to  be
14        able to terminate his or her possession.
15        (c)  Violation  of  paragraph  (1),  (4),  (5), or (7) of
16    subsection (a) is a Class 1 felony with a  mandatory  minimum
17    fine  of $2,000 and a maximum fine of $100,000.  Violation of
18    paragraph (3) of subsection (a) is a Class 1  felony  with  a
19    mandatory  minimum  fine  of  $1500  and  a  maximum  fine of
20    $100,000. Violation of paragraph (2) of subsection (a)  is  a
21    Class  1  felony with a mandatory minimum fine of $1000 and a
22    maximum fine of  $100,000.  Violation  of  paragraph  (6)  of
23    subsection  (a)  is a Class 3 felony with a mandatory minimum
24    fine of $1000 and a maximum fine of $100,000.
25        (d)  If a person is convicted of a second  or  subsequent
26    violation  of  this  Section  within  10  years  of  a  prior
27    conviction,  the  court shall order a presentence psychiatric
28    examination of the person.  The examiner shall report to  the
29    court whether treatment of the person is necessary.
30        (e)  Any  film,  videotape,  photograph  or other similar
31    visual reproduction or depiction by computer which includes a
32    child under the age of 18 or an institutionalized severely or
33    profoundly mentally retarded person engaged in  any  activity
34    described  in  subparagraphs (i) through (vii) or paragraph 1
 
HB1100 Engrossed            -6-                LRB9101204RCpk
 1    of subsection (a), and any  material  or  equipment  used  or
 2    intended   for   use  in  photographing,  filming,  printing,
 3    producing,    reproducing,     manufacturing,     projecting,
 4    exhibiting,  depiction  by  computer,  or  disseminating such
 5    material shall be seized and forfeited in the manner,  method
 6    and  procedure  provided by Section 36-1 of this Code for the
 7    seizure and forfeiture of vessels, vehicles and aircraft.
 8        (e-5)  Upon the conclusion of a case brought  under  this
 9    Section, the court shall seal all evidence depicting a victim
10    or  witness  that  is sexually explicit.  The evidence may be
11    unsealed and viewed, on a motion  of  the  party  seeking  to
12    unseal  and  view the evidence, only for good cause shown and
13    in the discretion of the court.  The  motion  must  expressly
14    set  forth the purpose for viewing the material.  The State's
15    attorney and the  victim,  if  possible,  shall  be  provided
16    reasonable notice of  the hearing on the motion to unseal the
17    evidence.   Any  person entitled to notice of a hearing under
18    this subsection (e-5) may object to the motion.
19        (f)  Definitions.  For the purposes of this Section:
20             (1)  "Disseminate" means (i)  to  sell,  distribute,
21        exchange  or transfer possession, whether with or without
22        consideration or (ii) to make  a  depiction  by  computer
23        available  for  distribution  or  downloading through the
24        facilities of any telecommunications network  or  through
25        any other means of transferring computer programs or data
26        to a computer;
27             (2)  "Produce"  means to direct, promote, advertise,
28        publish, manufacture, issue, present or show;
29             (3)  "Reproduce" means  to  make  a  duplication  or
30        copy;
31             (4)  "Depict  by  computer"  means  to  generate  or
32        create,  or  cause to be created or generated, a computer
33        program or data that, after being processed by a computer
34        either alone or in conjunction with one or more  computer
 
HB1100 Engrossed            -7-                LRB9101204RCpk
 1        programs,  results  in  a  visual depiction on a computer
 2        monitor, screen, or display.
 3             (5)  "Depiction  by  computer"  means   a   computer
 4        program or data that, after being processed by a computer
 5        either  alone or in conjunction with one or more computer
 6        programs, results in a visual  depiction  on  a  computer
 7        monitor, screen, or display.
 8             (6)  "Computer", "computer program", and "data" have
 9        the  meanings  ascribed  to them in Section 16D-2 of this
10        Code.
11             (7)  "Child" includes a film, videotape, photograph,
12        or  other  similar  visual  medium  or  reproduction   or
13        depiction  by computer that is, or appears to be, that of
14        a person, either in part, or in total, under the  age  of
15        18,   regardless   of  the  method  by  which  the  film,
16        videotape, photograph, or other similar visual medium  or
17        reproduction   or   depiction  by  computer  is  created,
18        adopted, or modified to appear  as  such.   "Child"  also
19        includes  a film, videotape, photograph, or other similar
20        visual medium or reproduction or  depiction  by  computer
21        that  is  advertised,  promoted, presented, described, or
22        distributed in such a manner that conveys the  impression
23        that  the  film,  videotape, photograph, or other similar
24        visual medium or reproduction or depiction by computer is
25        of a person under the age of 18.
26    (Source: P.A.  90-68,  eff.  7-8-97;  90-678,  eff.  7-31-98;
27    90-786, eff. 1-1-99; revised 9-16-98.)

28        (720 ILCS 5/11-20.1A) (from Ch. 38, par. 11-20.1A)
29        Sec. 11-20.1A. (a) A person who commits  the  offense  of
30    keeping  a  place of juvenile prostitution, exploitation of a
31    child or child pornography under Sections 11-17.1, 11-19.2 or
32    11-20.1 of this Code, shall forfeit to the State of Illinois:
33        (1)  any profits or proceeds and any interest or property
 
HB1100 Engrossed            -8-                LRB9101204RCpk
 1    he has  acquired  or  maintained  in  violation  of  Sections
 2    11-17.1,  11-19.2 or 11-20.1 of this Code that the sentencing
 3    court determines, after a forfeiture hearing,  to  have  been
 4    acquired  or  maintained  as  a  result of keeping a place of
 5    juvenile prostitution,  exploitation  of  a  child  or  child
 6    pornography; and
 7        (2)  any  interest  in,  security  of,  claim against, or
 8    property or contractual right of any kind affording a  source
 9    of  influence  over, any enterprise which he has established,
10    operated, controlled or conducted in  violation  of  Sections
11    11-17.1,  11-19.2 or 11-20.1 of this Code that the sentencing
12    court determines, after a forfeiture hearing,  to  have  been
13    acquired  or  maintained  as  a  result of keeping a place of
14    juvenile prostitution,  exploitation  of  a  child  or  child
15    pornography.
16        (b) (1)  The  court  shall, upon petition by the Attorney
17    General or State's Attorney at any time following sentencing,
18    conduct a  hearing  to  determine  whether  any  property  or
19    property   interest  is  subject  to  forfeiture  under  this
20    Section. At the forfeiture hearing the people shall have  the
21    burden  of  establishing, by a preponderance of the evidence,
22    that property or property interests are subject to forfeiture
23    under this Section.
24        (2)  In any action brought by the People of the State  of
25    Illinois  under  this Section, wherein any restraining order,
26    injunction or prohibition or any other action  in  connection
27    with  any  property  or  interest subject to forfeiture under
28    this Section is sought, the circuit court presiding over  the
29    trial  of  the person or persons charged with keeping a place
30    of juvenile prostitution, exploitation of a  child  or  child
31    pornography  shall  first determine whether there is probable
32    cause to believe that the person or persons so  charged  have
33    committed   the  offense  of  keeping  a  place  of  juvenile
34    prostitution, exploitation of a child  or  child  pornography
 
HB1100 Engrossed            -9-                LRB9101204RCpk
 1    and whether the property or interest is subject to forfeiture
 2    pursuant   to   this  Section.   In  order  to  make  such  a
 3    determination, prior to entering any such  order,  the  court
 4    shall  conduct  a  hearing without a jury, wherein the People
 5    shall establish that there is: (i) probable  cause  that  the
 6    person  or  persons  so charged have committed the offense of
 7    keeping a place of juvenile prostitution, exploitation  of  a
 8    child  or  child pornography and (ii) probable cause that any
 9    property or interest may be subject to forfeiture pursuant to
10    this Section.  Such hearing may be  conducted  simultaneously
11    with  a  preliminary hearing, if the prosecution is commenced
12    by information or complaint, or by motion of the  People,  at
13    any stage in the proceedings.  The court may accept a finding
14    of  probable  cause  at  a  preliminary hearing following the
15    filing of an information charging the offense  of  keeping  a
16    place  of  juvenile  prostitution, exploitation of a child or
17    child pornography or the return of an indictment by  a  grand
18    jury  charging  the  offense  of  keeping a place of juvenile
19    prostitution, exploitation of a child or child pornography as
20    sufficient evidence of probable cause as provided in item (i)
21    above.  Upon such a finding, the circuit  court  shall  enter
22    such  restraining  order, injunction or prohibition, or shall
23    take such other action in connection with any  such  property
24    or  other  interest subject to forfeiture, as is necessary to
25    insure  that  such  property  is   not   removed   from   the
26    jurisdiction  of the court, concealed, destroyed or otherwise
27    disposed of by the owner of that property or  interest  prior
28    to  a  forfeiture  hearing  under  this Section. The Attorney
29    General or State's Attorney shall file a  certified  copy  of
30    such  restraining order, injunction or other prohibition with
31    the recorder of deeds or registrar of titles of  each  county
32    where  any such property of the defendant may be located.  No
33    such injunction, restraining order or other prohibition shall
34    affect the rights of  any  bona  fide  purchaser,  mortgagee,
 
HB1100 Engrossed            -10-               LRB9101204RCpk
 1    judgment  creditor  or  other lienholder arising prior to the
 2    date of such  filing.  The  court  may,  at  any  time,  upon
 3    verified  petition  by  the defendant or an innocent owner or
 4    innocent bona fide third party  lienholder  who  neither  had
 5    knowledge  of, nor consented to, the illegal act or omission,
 6    conduct a hearing to release all  or  portions  of  any  such
 7    property or interest which the court previously determined to
 8    be subject to forfeiture or subject to any restraining order,
 9    injunction,  or  prohibition  or other action.  The court may
10    release such property to the defendant or innocent  owner  or
11    innocent  bona  fide  third  party lienholder who neither had
12    knowledge of, nor consented to, the illegal act  or  omission
13    for  good  cause shown and within the sound discretion of the
14    court.
15        A forfeiture under this Section may be commenced  by  the
16    Attorney General or a State's Attorney.
17        (3)  Upon  conviction  of  a person of keeping a place of
18    juvenile prostitution,  exploitation  of  a  child  or  child
19    pornography,  the  court shall authorize the Attorney General
20    to seize all property or other  interest  declared  forfeited
21    under  this  Section  upon  such  terms and conditions as the
22    court shall deem proper.
23        (4)  The Attorney  General  is  authorized  to  sell  all
24    property  forfeited  and  seized  pursuant  to  this Section,
25    unless such property is required by law to be destroyed or is
26    harmful to the  public,  and,  after  the  deduction  of  all
27    requisite   expenses   of   administration  and  sale,  shall
28    distribute the proceeds of such sale, along with  any  moneys
29    forfeited  or  seized,  in  accordance with subsection (c) of
30    this Section.
31        (c)  All monies forfeited and the sale  proceeds  of  all
32    other  property forfeited and seized under this Section shall
33    be distributed as follows:
34        (1) One-half shall be divided  equally  among  all  State
 
HB1100 Engrossed            -11-               LRB9101204RCpk
 1    agencies  and  units  of  local  government whose officers or
 2    employees conducted the investigation which resulted  in  the
 3    forfeiture; and
 4        (2)  One-half  shall  be  deposited  in the Violent Crime
 5    Victims Assistance Fund.
 6    (Source: P.A. 85-1194.)

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