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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.)