[ Search ] [ Legislation ]
[ Home ] [ Back ] [ Bottom ]
| [ Engrossed ] | [ Enrolled ] |
91_SB0732
LRB9100328RCks
1 AN ACT to amend the Criminal Code of 1961 by re-enacting
2 Section 11-20.1.
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 re-enacting Section 11-20.1 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
-2- LRB9100328RCks
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
-3- LRB9100328RCks
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
-4- LRB9100328RCks
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 to
30 the performance of official duties by law enforcement or
31 prosecuting officers, court personnel or attorneys, nor to
32 bonafide treatment or professional education programs
33 conducted by licensed physicians, psychologists or social
34 workers.
-5- LRB9100328RCks
1 (4) Possession by the defendant of more than one of the
2 same film, videotape or visual reproduction or depiction by
3 computer in which child pornography is depicted shall raise a
4 rebuttable presumption that the defendant possessed such
5 materials with the intent to disseminate them.
6 (c) Violation of paragraph (1), (4), (5), or (7) of
7 subsection (a) is a Class 1 felony with a mandatory minimum
8 fine of $2,000 and a maximum fine of $100,000. Violation of
9 paragraph (3) of subsection (a) is a Class 1 felony with a
10 mandatory minimum fine of $1500 and a maximum fine of
11 $100,000. Violation of paragraph (2) of subsection (a) is a
12 Class 1 felony with a mandatory minimum fine of $1000 and a
13 maximum fine of $100,000. Violation of paragraph (6) of
14 subsection (a) is a Class 3 felony with a mandatory minimum
15 fine of $1000 and a maximum fine of $100,000.
16 (d) If a person is convicted of a second or subsequent
17 violation of this Section within 10 years of a prior
18 conviction, the court shall order a presentence psychiatric
19 examination of the person. The examiner shall report to the
20 court whether treatment of the person is necessary.
21 (e) Any film, videotape, photograph or other similar
22 visual reproduction or depiction by computer which includes a
23 child under the age of 18 or an institutionalized severely or
24 profoundly mentally retarded person engaged in any activity
25 described in subparagraphs (i) through (vii) or paragraph 1
26 of subsection (a), and any material or equipment used or
27 intended for use in photographing, filming, printing,
28 producing, reproducing, manufacturing, projecting,
29 exhibiting, depiction by computer, or disseminating such
30 material shall be seized and forfeited in the manner, method
31 and procedure provided by Section 36-1 of this Code for the
32 seizure and forfeiture of vessels, vehicles and aircraft.
33 (e-5) Upon the conclusion of a case brought under this
34 Section, the court shall seal all evidence depicting a victim
-6- LRB9100328RCks
1 or witness that is sexually explicit. The evidence may be
2 unsealed and viewed, on a motion of the party seeking to
3 unseal and view the evidence, only for good cause shown and
4 in the discretion of the court. The motion must expressly
5 set forth the purpose for viewing the material. The State's
6 attorney and the victim, if possible, shall be provided
7 reasonable notice of the hearing on the motion to unseal the
8 evidence. Any person entitled to notice of a hearing under
9 this subsection (e-5) may object to the motion.
10 (f) Definitions. For the purposes of this Section:
11 (1) "Disseminate" means (i) to sell, distribute,
12 exchange or transfer possession, whether with or without
13 consideration or (ii) to make a depiction by computer
14 available for distribution or downloading through the
15 facilities of any telecommunications network or through
16 any other means of transferring computer programs or data
17 to a computer;
18 (2) "Produce" means to direct, promote, advertise,
19 publish, manufacture, issue, present or show;
20 (3) "Reproduce" means to make a duplication or
21 copy;
22 (4) "Depict by computer" means to generate or
23 create, or cause to be created or generated, a computer
24 program or data that, after being processed by a computer
25 either alone or in conjunction with one or more computer
26 programs, results in a visual depiction on a computer
27 monitor, screen, or display.
28 (5) "Depiction by computer" means a computer
29 program or data that, after being processed by a computer
30 either alone or in conjunction with one or more computer
31 programs, results in a visual depiction on a computer
32 monitor, screen, or display.
33 (6) "Computer", "computer program", and "data" have
34 the meanings ascribed to them in Section 16D-2 of this
-7- LRB9100328RCks
1 Code.
2 (g) Re-enactment; findings; purposes.
3 (1) The General Assembly finds and declares that:
4 (i) Section 50-5 of Public Act 88-680,
5 effective January 1, 1995, contained provisions
6 amending the child pornography statute, Section
7 11-20.1 of the Criminal Code of 1961. Section 50-5
8 also contained other provisions.
9 (ii) In addition, Public Act 88-680 was
10 entitled "AN ACT to create a Safe Neighborhoods
11 Law". (A) Article 5 was entitled JUVENILE JUSTICE
12 and amended the Juvenile Court Act of 1987. (B)
13 Article 15 was entitled GANGS and amended various
14 provisions of the Criminal Code of 1961 and the
15 Unified Code of Corrections. (C) Article 20 was
16 entitled ALCOHOL ABUSE and amended various
17 provisions of the Illinois Vehicle Code. (D)
18 Article 25 was entitled DRUG ABUSE and amended the
19 Cannabis Control Act and the Illinois Controlled
20 Substances Act. (E) Article 30 was entitled FIREARMS
21 and amended the Criminal Code of 1961 and the Code
22 of Criminal Procedure of 1963. (F) Article 35
23 amended the Criminal Code of 1961, the Rights of
24 Crime Victims and Witnesses Act, and the Unified
25 Code of Corrections. (G) Article 40 amended the
26 Criminal Code of 1961 to increase the penalty for
27 compelling organization membership of persons. (H)
28 Article 45 created the Secure Residential Youth Care
29 Facility Licensing Act and amended the State Finance
30 Act, the Juvenile Court Act of 1987, the Unified
31 Code of Corrections, and the Private Correctional
32 Facility Moratorium Act. (I) Article 50 amended the
33 WIC Vendor Management Act, the Firearm Owners
34 Identification Card Act, the Juvenile Court Act of
-8- LRB9100328RCks
1 1987, the Criminal Code of 1961, the Wrongs to
2 Children Act, and the Unified Code of Corrections.
3 (iii) On September 22, 1998, the Third
4 District Appellate Court in People v. Dainty, 701
5 N.E. 2d 118, ruled that Public Act 88-680 violates
6 the single subject clause of the Illinois
7 Constitution (Article IV, Section 8 (d)) and was
8 unconstitutional in its entirety. As of the time
9 this amendatory Act of 1999 was prepared, People v.
10 Dainty was still subject to appeal.
11 (iv) Child pornography is a vital concern to
12 the people of this State and the validity of future
13 prosecutions under the child pornography statute of
14 the Criminal Code of 1961 is in grave doubt.
15 (2) It is the purpose of this amendatory Act of 1999 to
16 prevent or minimize any problems relating to prosecutions for
17 child pornography that may result from challenges to the
18 constitutional validity of Public Act 88-680 by re-enacting
19 the Section relating to child pornography that was included
20 in Public Act 88-680.
21 (3) This amendatory Act of 1999 re-enacts Section
22 11-20.1 of the Criminal Code of 1961, as it has been amended.
23 This re-enactment is intended to remove any question as to
24 the validity or content of that Section; it is not intended
25 to supersede any other Public Act that amends the text of the
26 Section as set forth in this amendatory Act of 1999. The
27 material is shown as existing text (i.e., without
28 underscoring) because, as of the time this amendatory Act of
29 1999 was prepared, People v. Dainty was subject to appeal to
30 the Illinois Supreme Court.
31 (4) The re-enactment by this amendatory of 1999 of
32 Section 11-20.1 of the Criminal Code of 1961 relating to
33 child pornography that was amended by Public Act 88-680 is
34 not intended, and shall not be construed, to imply that
-9- LRB9100328RCks
1 Public Act 88-680 is invalid or to limit or impair any legal
2 argument concerning whether those provisions were
3 substantially re-enacted by other Public Acts.
4 (Source: P.A. 90-68, eff. 7-8-97; 90-678, eff. 7-31-98;
5 90-786, eff. 1-1-99; revised 9-16-98.)
6 Section 99. Effective date. This Act takes effect upon
7 becoming law.