Public Act 097-0995
 
HB5235 EnrolledLRB097 16476 RLC 61644 b

    AN ACT concerning 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
Section 11-20.1 as follows:
 
    (720 ILCS 5/11-20.1)  (from Ch. 38, par. 11-20.1)
    Sec. 11-20.1. Child pornography.
    (a) A person commits child pornography who:
        (1) films, videotapes, photographs, or otherwise
    depicts or portrays by means of any similar visual medium
    or reproduction or depicts by computer any child whom he or
    she knows or reasonably should know to be under the age of
    18 and at least 13 years of age or any severely or
    profoundly intellectually disabled person where such child
    or severely or profoundly intellectually disabled person
    is:
            (i) actually or by simulation engaged in any act of
        sexual penetration or sexual conduct with any person or
        animal; or
            (ii) actually or by simulation engaged in any act
        of sexual penetration or sexual conduct involving the
        sex organs of the child or severely or profoundly
        intellectually disabled person and the mouth, anus, or
        sex organs of another person or animal; or which
        involves the mouth, anus or sex organs of the child or
        severely or profoundly intellectually disabled person
        and the sex organs of another person or animal; or
            (iii) actually or by simulation engaged in any act
        of masturbation; or
            (iv) actually or by simulation portrayed as being
        the object of, or otherwise engaged in, any act of lewd
        fondling, touching, or caressing involving another
        person or animal; or
            (v) actually or by simulation engaged in any act of
        excretion or urination within a sexual context; or
            (vi) actually or by simulation portrayed or
        depicted as bound, fettered, or subject to sadistic,
        masochistic, or sadomasochistic abuse in any sexual
        context; or
            (vii) depicted or portrayed in any pose, posture or
        setting involving a lewd exhibition of the unclothed or
        transparently clothed genitals, pubic area, buttocks,
        or, if such person is female, a fully or partially
        developed breast of the child or other person; or
        (2) with the knowledge of the nature or content
    thereof, reproduces, disseminates, offers to disseminate,
    exhibits or possesses with intent to disseminate any film,
    videotape, photograph or other similar visual reproduction
    or depiction by computer of any child or severely or
    profoundly intellectually disabled person whom the person
    knows or reasonably should know to be under the age of 18
    and at least 13 years of age or to be a severely or
    profoundly intellectually disabled person, engaged in any
    activity described in subparagraphs (i) through (vii) of
    paragraph (1) of this subsection; or
        (3) with knowledge of the subject matter or theme
    thereof, produces any stage play, live performance, film,
    videotape or other similar visual portrayal or depiction by
    computer which includes a child whom the person knows or
    reasonably should know to be under the age of 18 and at
    least 13 years of age or a severely or profoundly
    intellectually disabled person engaged in any activity
    described in subparagraphs (i) through (vii) of paragraph
    (1) of this subsection; or
        (4) solicits, uses, persuades, induces, entices, or
    coerces any child whom he or she knows or reasonably should
    know to be under the age of 18 and at least 13 years of age
    or a severely or profoundly intellectually disabled person
    to appear in any stage play, live presentation, film,
    videotape, photograph or other similar visual reproduction
    or depiction by computer in which the child or severely or
    profoundly intellectually disabled person is or will be
    depicted, actually or by simulation, in any act, pose or
    setting described in subparagraphs (i) through (vii) of
    paragraph (1) of this subsection; or
        (5) is a parent, step-parent, legal guardian or other
    person having care or custody of a child whom the person
    knows or reasonably should know to be under the age of 18
    and at least 13 years of age or a severely or profoundly
    intellectually disabled person and who knowingly permits,
    induces, promotes, or arranges for such child or severely
    or profoundly intellectually disabled person to appear in
    any stage play, live performance, film, videotape,
    photograph or other similar visual presentation, portrayal
    or simulation or depiction by computer of any act or
    activity described in subparagraphs (i) through (vii) of
    paragraph (1) of this subsection; or
        (6) with knowledge of the nature or content thereof,
    possesses any film, videotape, photograph or other similar
    visual reproduction or depiction by computer of any child
    or severely or profoundly intellectually disabled person
    whom the person knows or reasonably should know to be under
    the age of 18 and at least 13 years of age or to be a
    severely or profoundly intellectually disabled person,
    engaged in any activity described in subparagraphs (i)
    through (vii) of paragraph (1) of this subsection; or
        (7) solicits, or knowingly uses, persuades, induces,
    entices, or coerces, a person to provide a child under the
    age of 18 and at least 13 years of age or a severely or
    profoundly intellectually disabled person to appear in any
    videotape, photograph, film, stage play, live
    presentation, or other similar visual reproduction or
    depiction by computer in which the child or severely or
    profoundly intellectually disabled person will be
    depicted, actually or by simulation, in any act, pose, or
    setting described in subparagraphs (i) through (vii) of
    paragraph (1) of this subsection.
    (b) (1) It shall be an affirmative defense to a charge of
    child pornography that the defendant reasonably believed,
    under all of the circumstances, that the child was 18 years
    of age or older or that the person was not a severely or
    profoundly intellectually disabled person but only where,
    prior to the act or acts giving rise to a prosecution under
    this Section, he or she took some affirmative action or
    made a bonafide inquiry designed to ascertain whether the
    child was 18 years of age or older or that the person was
    not a severely or profoundly intellectually disabled
    person and his or her reliance upon the information so
    obtained was clearly reasonable.
        (1.5) Telecommunications carriers, commercial mobile
    service providers, and providers of information services,
    including, but not limited to, Internet service providers
    and hosting service providers, are not liable under this
    Section by virtue of the transmission, storage, or caching
    of electronic communications or messages of others or by
    virtue of the provision of other related
    telecommunications, commercial mobile services, or
    information services used by others in violation of this
    Section.
        (2) (Blank).
        (3) The charge of child pornography shall not apply to
    the performance of official duties by law enforcement or
    prosecuting officers or persons employed by law
    enforcement or prosecuting agencies, court personnel or
    attorneys, nor to bonafide treatment or professional
    education programs conducted by licensed physicians,
    psychologists or social workers.
        (4) If the defendant possessed more than one of the
    same film, videotape or visual reproduction or depiction by
    computer in which child pornography is depicted, then the
    trier of fact may infer that the defendant possessed such
    materials with the intent to disseminate them.
        (5) The charge of child pornography does not apply to a
    person who does not voluntarily possess a film, videotape,
    or visual reproduction or depiction by computer in which
    child pornography is depicted. Possession is voluntary if
    the defendant knowingly procures or receives a film,
    videotape, or visual reproduction or depiction for a
    sufficient time to be able to terminate his or her
    possession.
        (6) Any violation of paragraph (1), (2), (3), (4), (5),
    or (7) of subsection (a) that includes a child engaged in,
    solicited for, depicted in, or posed in any act of sexual
    penetration or bound, fettered, or subject to sadistic,
    masochistic, or sadomasochistic abuse in a sexual context
    shall be deemed a crime of violence.
    (c) If the violation does not involve a film, videotape, or
other moving depiction, a violation of paragraph (1), (4), (5),
or (7) of subsection (a) is a Class 1 felony with a mandatory
minimum fine of $2,000 and a maximum fine of $100,000. If the
violation involves a film, videotape, or other moving
depiction, a violation of paragraph (1), (4), (5), or (7) of
subsection (a) is a Class X felony with a mandatory minimum
fine of $2,000 and a maximum fine of $100,000. If the violation
does not involve a film, videotape, or other moving depiction,
a violation of paragraph (3) of subsection (a) is a Class 1
felony with a mandatory minimum fine of $1500 and a maximum
fine of $100,000. If the violation involves a film, videotape,
or other moving depiction, a violation of paragraph (3) of
subsection (a) is a Class X felony with a mandatory minimum
fine of $1500 and a maximum fine of $100,000. If the violation
does not involve a film, videotape, or other moving depiction,
a violation of paragraph (2) of subsection (a) is a Class 1
felony with a mandatory minimum fine of $1000 and a maximum
fine of $100,000. If the violation involves a film, videotape,
or other moving depiction, a violation of paragraph (2) of
subsection (a) is a Class X felony with a mandatory minimum
fine of $1000 and a maximum fine of $100,000. If the violation
does not involve a film, videotape, or other moving depiction,
a violation of paragraph (6) of subsection (a) is a Class 3
felony with a mandatory minimum fine of $1000 and a maximum
fine of $100,000. If the violation involves a film, videotape,
or other moving depiction, a violation of paragraph (6) of
subsection (a) is a Class 2 felony with a mandatory minimum
fine of $1000 and a maximum fine of $100,000.
    (c-5) Where the child depicted is under the age of 13, a
violation of paragraph (1), (2), (3), (4), (5), or (7) of
subsection (a) is a Class X felony with a mandatory minimum
fine of $2,000 and a maximum fine of $100,000. Where the child
depicted is under the age of 13, a violation of paragraph (6)
of subsection (a) is a Class 2 felony with a mandatory minimum
fine of $1,000 and a maximum fine of $100,000. Where the child
depicted is under the age of 13, a person who commits a
violation of paragraph (1), (2), (3), (4), (5), or (7) of
subsection (a) where the defendant has previously been
convicted under the laws of this State or any other state of
the offense of child pornography, aggravated child
pornography, aggravated criminal sexual abuse, aggravated
criminal sexual assault, predatory criminal sexual assault of a
child, or any of the offenses formerly known as rape, deviate
sexual assault, indecent liberties with a child, or aggravated
indecent liberties with a child where the victim was under the
age of 18 years or an offense that is substantially equivalent
to those offenses, is guilty of a Class X felony for which the
person shall be sentenced to a term of imprisonment of not less
than 9 years with a mandatory minimum fine of $2,000 and a
maximum fine of $100,000. Where the child depicted is under the
age of 13, a person who commits a violation of paragraph (6) of
subsection (a) where the defendant has previously been
convicted under the laws of this State or any other state of
the offense of child pornography, aggravated child
pornography, aggravated criminal sexual abuse, aggravated
criminal sexual assault, predatory criminal sexual assault of a
child, or any of the offenses formerly known as rape, deviate
sexual assault, indecent liberties with a child, or aggravated
indecent liberties with a child where the victim was under the
age of 18 years or an offense that is substantially equivalent
to those offenses, is guilty of a Class 1 felony with a
mandatory minimum fine of $1,000 and a maximum fine of
$100,000. The issue of whether the child depicted is under the
age of 13 is an element of the offense to be resolved by the
trier of fact.
    (d) If a person is convicted of a second or subsequent
violation of this Section within 10 years of a prior
conviction, the court shall order a presentence psychiatric
examination of the person. The examiner shall report to the
court whether treatment of the person is necessary.
    (e) Any film, videotape, photograph or other similar visual
reproduction or depiction by computer which includes a child
under the age of 18 and at least 13 years of age or a severely
or profoundly intellectually disabled person engaged in any
activity described in subparagraphs (i) through (vii) or
paragraph 1 of subsection (a), and any material or equipment
used or intended for use in photographing, filming, printing,
producing, reproducing, manufacturing, projecting, exhibiting,
depiction by computer, or disseminating such material shall be
seized and forfeited in the manner, method and procedure
provided by Section 36-1 of this Code for the seizure and
forfeiture of vessels, vehicles and aircraft.
    In addition, any person convicted under this Section is
subject to the property forfeiture provisions set forth in
Article 124B of the Code of Criminal Procedure of 1963.
    (e-5) Upon the conclusion of a case brought under this
Section, the court shall seal all evidence depicting a victim
or witness that is sexually explicit. The evidence may be
unsealed and viewed, on a motion of the party seeking to unseal
and view the evidence, only for good cause shown and in the
discretion of the court. The motion must expressly set forth
the purpose for viewing the material. The State's attorney and
the victim, if possible, shall be provided reasonable notice of
the hearing on the motion to unseal the evidence. Any person
entitled to notice of a hearing under this subsection (e-5) may
object to the motion.
    (f) Definitions. For the purposes of this Section:
        (1) "Disseminate" means (i) to sell, distribute,
    exchange or transfer possession, whether with or without
    consideration or (ii) to make a depiction by computer
    available for distribution or downloading through the
    facilities of any telecommunications network or through
    any other means of transferring computer programs or data
    to a computer.
        (2) "Produce" means to direct, promote, advertise,
    publish, manufacture, issue, present or show.
        (3) "Reproduce" means to make a duplication or copy.
        (4) "Depict by computer" means to generate or create,
    or cause to be created or generated, a computer program or
    data that, after being processed by a computer either alone
    or in conjunction with one or more computer programs,
    results in a visual depiction on a computer monitor,
    screen, or display.
        (5) "Depiction by computer" means a computer program or
    data that, after being processed by a computer either alone
    or in conjunction with one or more computer programs,
    results in a visual depiction on a computer monitor,
    screen, or display.
        (6) "Computer", "computer program", and "data" have
    the meanings ascribed to them in Section 16D-2 of this
    Code.
        (7) For the purposes of this Section, "child
    pornography" includes a film, videotape, photograph, or
    other similar visual medium or reproduction or depiction by
    computer that is, or appears to be, that of a person,
    either in part, or in total, under the age of 18 and at
    least 13 years of age or a severely or profoundly
    intellectually disabled mentally retarded person,
    regardless of the method by which the film, videotape,
    photograph, or other similar visual medium or reproduction
    or depiction by computer is created, adopted, or modified
    to appear as such. "Child pornography" also includes a
    film, videotape, photograph, or other similar visual
    medium or reproduction or depiction by computer that is
    advertised, promoted, presented, described, or distributed
    in such a manner that conveys the impression that the film,
    videotape, photograph, or other similar visual medium or
    reproduction or depiction by computer is of a person under
    the age of 18 and at least 13 years of age or a severely or
    profoundly intellectually disabled mentally retarded
    person.
    (g) Re-enactment; findings; purposes.
        (1) The General Assembly finds and declares that:
            (i) Section 50-5 of Public Act 88-680, effective
        January 1, 1995, contained provisions amending the
        child pornography statute, Section 11-20.1 of the
        Criminal Code of 1961. Section 50-5 also contained
        other provisions.
            (ii) In addition, Public Act 88-680 was entitled
        "AN ACT to create a Safe Neighborhoods Law". (A)
        Article 5 was entitled JUVENILE JUSTICE and amended the
        Juvenile Court Act of 1987. (B) Article 15 was entitled
        GANGS and amended various provisions of the Criminal
        Code of 1961 and the Unified Code of Corrections. (C)
        Article 20 was entitled ALCOHOL ABUSE and amended
        various provisions of the Illinois Vehicle Code. (D)
        Article 25 was entitled DRUG ABUSE and amended the
        Cannabis Control Act and the Illinois Controlled
        Substances Act. (E) Article 30 was entitled FIREARMS
        and amended the Criminal Code of 1961 and the Code of
        Criminal Procedure of 1963. (F) Article 35 amended the
        Criminal Code of 1961, the Rights of Crime Victims and
        Witnesses Act, and the Unified Code of Corrections. (G)
        Article 40 amended the Criminal Code of 1961 to
        increase the penalty for compelling organization
        membership of persons. (H) Article 45 created the
        Secure Residential Youth Care Facility Licensing Act
        and amended the State Finance Act, the Juvenile Court
        Act of 1987, the Unified Code of Corrections, and the
        Private Correctional Facility Moratorium Act. (I)
        Article 50 amended the WIC Vendor Management Act, the
        Firearm Owners Identification Card Act, the Juvenile
        Court Act of 1987, the Criminal Code of 1961, the
        Wrongs to Children Act, and the Unified Code of
        Corrections.
            (iii) On September 22, 1998, the Third District
        Appellate Court in People v. Dainty, 701 N.E. 2d 118,
        ruled that Public Act 88-680 violates the single
        subject clause of the Illinois Constitution (Article
        IV, Section 8 (d)) and was unconstitutional in its
        entirety. As of the time this amendatory Act of 1999
        was prepared, People v. Dainty was still subject to
        appeal.
            (iv) Child pornography is a vital concern to the
        people of this State and the validity of future
        prosecutions under the child pornography statute of
        the Criminal Code of 1961 is in grave doubt.
        (2) It is the purpose of this amendatory Act of 1999 to
    prevent or minimize any problems relating to prosecutions
    for child pornography that may result from challenges to
    the constitutional validity of Public Act 88-680 by
    re-enacting the Section relating to child pornography that
    was included in Public Act 88-680.
        (3) This amendatory Act of 1999 re-enacts Section
    11-20.1 of the Criminal Code of 1961, as it has been
    amended. This re-enactment is intended to remove any
    question as to the validity or content of that Section; it
    is not intended to supersede any other Public Act that
    amends the text of the Section as set forth in this
    amendatory Act of 1999. The material is shown as existing
    text (i.e., without underscoring) because, as of the time
    this amendatory Act of 1999 was prepared, People v. Dainty
    was subject to appeal to the Illinois Supreme Court.
        (4) The re-enactment by this amendatory Act of 1999 of
    Section 11-20.1 of the Criminal Code of 1961 relating to
    child pornography that was amended by Public Act 88-680 is
    not intended, and shall not be construed, to imply that
    Public Act 88-680 is invalid or to limit or impair any
    legal argument concerning whether those provisions were
    substantially re-enacted by other Public Acts.
(Source: P.A. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10;
96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-157, eff.
1-1-12; 97-227, eff. 1-1-12; revised 9-12-11.)
 
    (720 ILCS 5/11-20.1B rep.)
    Section 10. The Criminal Code of 1961 is amended by
repealing Section 11-20.1B.