Public Act 097-0157
 
HB3283 EnrolledLRB097 08253 RLC 48379 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 the offense of 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 
    knows or reasonably should know to be under the age of 18 
    or any
severely or profoundly mentally retarded person 
    where such child or severely
or profoundly mentally 
    retarded 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 
        mentally retarded 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 mentally retarded
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
mentally retarded person whom the person knows 
    or reasonably should know to be
under the age of 18 or to 
    be a severely or profoundly mentally retarded 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 or a 
    severely or
profoundly mentally retarded 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 knows or reasonably should know 
    to be under
the age of 18 or a severely or profoundly 
    mentally
retarded 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 mentally retarded 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 
    or a severely or profoundly mentally
retarded person and 
    who knowingly permits, induces, promotes, or arranges
for 
    such child or severely or profoundly mentally retarded

    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 mentally retarded person
whom the 
    person knows or reasonably should know to be under the age 
    of 18
or to be a severely or profoundly mentally retarded

    person, engaged in any activity described in subparagraphs 
    (i) through
(vii) of paragraph (1) of this subsection; or


        (7) solicits, uses, persuades, induces, entices, or 
    coerces a person
to provide a child under the age of 18 or 
    a severely or profoundly mentally
retarded 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 mentally retarded 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 mentally
retarded person but only where, prior 
    to the act or acts giving rise to a
prosecution under this 
    Section, he 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 mentally retarded person and his 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) Possession by the defendant of more than one of the 
    same film,
videotape or visual reproduction or depiction by 
    computer in which child
pornography is depicted
shall raise 
    a rebuttable presumption 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 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  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
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 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.

    (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 or a
severely or profoundly mentally 
retarded 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) "Child" 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,

    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" 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.


        (8) "Sexual penetration" and "sexual conduct" have the 
    meanings ascribed
to them in Section 12-12 of this Code.

    (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.)