Public Act 096-0280
 		





HB2513 Enrolled
LRB096 09214 RLC 19366 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 11-21  as follows:
 


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



    (Text of Section after amendment by P.A. 95-983)

    Sec. 11-21. Harmful material. 

    (a) As used in this Section:

        "Distribute" means transfer possession of, whether 
    with or without consideration.

        "Harmful to minors" means that quality of any 
    description or representation, in whatever form, of 
    nudity, sexual conduct, sexual excitement, or 
    sado-masochistic abuse, when, taken as a whole, it (i) 
    predominately appeals to the prurient interest in sex of 
    minors, (ii) is patently offensive to prevailing standards 
    in the adult community in the State as a whole with respect 
    to what is suitable material for minors, and (iii) lacks 
    serious literary, artistic, political, or scientific value 
    for minors.

        "Knowingly" means having knowledge of the contents of 
    the subject matter, or recklessly failing to exercise 
    reasonable inspection which would have disclosed the 
    contents.

        "Material" means (i) any picture, photograph, drawing, 
    sculpture, film, video game, computer game, video or 
    similar visual depiction, including any such 
    representation or image which is stored electronically, or 
    (ii) any book, magazine, printed matter however 
    reproduced, or recorded audio of any sort.

        "Minor" means any person under the age of 18.

        "Nudity" means the showing of the human male or female 
    genitals, pubic area or buttocks with less than a full 
    opaque covering, or the showing of the female breast with 
    less than a fully opaque covering of any portion below the 
    top of the nipple, or the depiction of covered male 
    genitals in a discernably turgid state.

        "Sado-masochistic abuse" means flagellation or torture 
    by or upon a person clad in undergarments, a mask or 
    bizarre costume, or the condition of being fettered, bound 
    or otherwise physically restrained on the part of one 
    clothed for sexual gratification or stimulation.

        "Sexual conduct" means acts of masturbation, sexual 
    intercourse, or physical contact with a person's clothed or 
    unclothed genitals, pubic area, buttocks or, if such person 
    be a female, breast.

        "Sexual excitement" means the condition of human male 
    or female genitals when in a state of sexual stimulation or 
    arousal.

    (b) A person is guilty of distributing harmful material to 
a minor when he or she:

        (1) knowingly sells, lends, distributes, exhibits to, 
    depicts to, or gives away to a minor, knowing that the 
    minor is under the age of 18 or failing to exercise 
    reasonable care in ascertaining the person's true age:

            (A) any material which depicts nudity, sexual 
        conduct or sado-masochistic abuse, or which contains  
        explicit and detailed verbal descriptions or narrative 
        accounts of sexual excitement, sexual conduct or 
        sado-masochistic abuse, and which taken as a whole is 
        harmful to minors;

            (B) a motion picture, show, or other presentation 
        which depicts nudity, sexual conduct or 
        sado-masochistic abuse and is harmful to minors; or

            (C) an admission ticket or pass to premises where 
        there is exhibited or to be exhibited such a motion 
        picture, show, or other presentation; or

        (2) admits a minor to premises where there is exhibited 
    or to be exhibited such a motion picture, show, or other 
    presentation, knowing that the minor is a person under the 
    age of 18 or failing to exercise reasonable care in 
    ascertaining the person's true age.

    (c) In any prosecution arising under this Section, it is an 
affirmative defense:

        (1) that the minor as to whom the offense is alleged to 
    have been committed exhibited to the accused a draft card, 
    driver's license, birth certificate or other official or 
    apparently official document purporting to establish that 
    the minor was 18 years of age or older, which was relied 
    upon by the accused;

        (2) that the defendant was in a parental or 
    guardianship relationship with the minor or that the minor 
    was accompanied by a parent or legal guardian;

        (3) that the defendant was a bona fide school, museum, 
    or public library, or was a person acting in the course of 
    his or her employment as an employee or official of such 
    organization or  retail outlet affiliated with and serving 
    the educational purpose of such organization;

        (4) that the act charged was committed in aid of 
    legitimate scientific or educational purposes; or

        (5) that an advertisement of harmful material as 
    defined in this Section culminated 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, Internet or similar means 
    of communication, and delivery of such harmful material to 
    the child was by mail, freight, Internet or similar means 
    of transport, which advertisement contained the following 
    statement, or a substantially similar statement, and that 
    the defendant required the purchaser to certify that he or 
    she was not under the age of 18  and that the purchaser 
    falsely stated that he or she was not under the age of 18: 
    "NOTICE: It is unlawful for any person under the age of 18  
    to purchase the matter advertised. Any person under the age 
    of 18  that falsely states that he or she is not under the 
    age of 18  for the purpose of obtaining the material 
    advertised is guilty of a Class B misdemeanor under the 
    laws of the State."

    (d) 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 
sold, lent, distributed or given, unless it appears from the 
nature of the matter or the circumstances of its dissemination 
or distribution  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.

    (e) Distribution of harmful material in violation of this 
Section is a Class A misdemeanor. A second or subsequent 
offense is a Class 4 felony.

    (f) Any person under the age of 18  that  falsely states, 
either orally or in writing, that he or she is not under the 
age of 18, or that presents or offers to any person any 
evidence of age and identity that is false or not actually his 
or her 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.


    (g)  A person over the age of 18 who fails to exercise 
reasonable care in ascertaining the true age of a minor, 
knowingly distributes to, or sends, or causes to be sent, or 
exhibits to, or offers to distribute, or exhibits any harmful 
material to a person that he or she believes is a minor is 
guilty of a Class A misdemeanor. If that person utilized a 
computer web camera, cellular telephone, or any other type of 
device to manufacture the harmful material, then each offense 
is a Class 4 felony. 
    (h)  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, except 
for willful and wanton misconduct, 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. 
(Source: P.A. 94-315, eff. 1-1-06; 95-983, eff. 6-1-09.)