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91_SB0732enr SB732 Enrolled 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 SB732 Enrolled -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 SB732 Enrolled -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 SB732 Enrolled -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. SB732 Enrolled -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 SB732 Enrolled -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 SB732 Enrolled -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 SB732 Enrolled -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 Act 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 SB732 Enrolled -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.