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92_SB0401enr SB401 Enrolled LRB9201103RCcd 1 AN ACT to amend certain Acts in relation to mentally 2 retarded persons. 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 2-10.1, 10-2, 10-5, 11-15.1, 11-19.1, 7 11-19.2, 11-20.1, 12-4.3, 12-14, and 12-16 as follows: 8 (720 ILCS 5/2-10.1) (from Ch. 38, par. 2-10.1) 9 Sec. 2-10.1. "InstitutionalizedSeverely or profoundly 10 mentally retarded person" means a personwho is11institutionalized in a developmental disability facility,12nursing home facility, or long term care facility and either13 (i) whosethe person'sintelligence quotient does not exceed 14 40 or (ii) whosethe person'sintelligence quotient does not 15 exceed 55 and whothe personsuffers from significant mental 16 illness to the extent that the person's ability to exercise 17 rational judgment is impaired. In any proceeding in which the 18 defendant is charged with committing a violation of Section 19 10-2, 10-5, 11-15.1, 11-19.1, 11-19.2, 11-20.1, 12-4.3, 20 12-14, or 12-16 of this Code against a victim who is alleged 21 to be aan institutionalizedseverely or profoundly mentally 22 retarded person, any findings concerning the victim's status 23 as aan institutionalizedseverely or profoundly mentally 24 retarded person, made by a court after a judicial admission 25 hearing concerning the victim under Articles V and VI of 26 Chapter 4 of the Mental Health and Developmental Disabilities 27 Code shall be admissible. 28 (Source: P.A. 87-1198.) 29 (720 ILCS 5/10-2) (from Ch. 38, par. 10-2) 30 Sec. 10-2. Aggravated kidnaping. SB401 Enrolled -2- LRB9201103RCcd 1 (a) A kidnaper within the definition of paragraph (a) of 2 Section 10-1 is guilty of the offense of aggravated 3 kidnaping when he: 4 (1) Kidnaps for the purpose of obtaining ransom 5 from the person kidnaped or from any other person, or 6 (2) Takes as his victim a child under the age of 13 7 years, or aan institutionalizedseverely or profoundly 8 mentally retarded person, or 9 (3) Inflicts great bodily harm, other than by the 10 discharge of a firearm, or commits another felony upon 11 his victim, or 12 (4) Wears a hood, robe or mask or conceals his 13 identity, or 14 (5) Commits the offense of kidnaping while armed 15 with a dangerous weapon, other than a firearm, as defined 16 in Section 33A-1 of the "Criminal Code of 1961", or 17 (6) Commits the offense of kidnaping while armed 18 with a firearm, or 19 (7) During the commission of the offense of 20 kidnaping, personally discharged a firearm, or 21 (8) During the commission of the offense of 22 kidnaping, personally discharged a firearm that 23 proximately caused great bodily harm, permanent 24 disability, permanent disfigurement, or death to another 25 person. 26 As used in this Section, "ransom" includes money, benefit 27 or other valuable thing or concession. 28 (b) Sentence. Aggravated kidnaping in violation of 29 paragraph (1), (2), (3), (4), or (5) of subsection (a) is a 30 Class X felony. A violation of subsection (a)(6) is a Class X 31 felony for which 15 years shall be added to the term of 32 imprisonment imposed by the court. A violation of subsection 33 (a)(7) is a Class X felony for which 20 years shall be added 34 to the term of imprisonment imposed by the court. A violation SB401 Enrolled -3- LRB9201103RCcd 1 of subsection (a)(8) is a Class X felony for which 25 years 2 or up to a term of natural life shall be added to the term of 3 imprisonment imposed by the court. 4 A person who is convicted of a second or subsequent 5 offense of aggravated kidnaping shall be sentenced to a term 6 of natural life imprisonment; provided, however, that a 7 sentence of natural life imprisonment shall not be imposed 8 under this Section unless the second or subsequent offense 9 was committed after conviction on the first offense. 10 (Source: P.A. 91-404, eff. 1-1-00.) 11 (720 ILCS 5/10-5) (from Ch. 38, par. 10-5) 12 Sec. 10-5. Child Abduction. 13 (a) For purposes of this Section, the following terms 14 shall have the following meanings: 15 (1) "Child" means a person under the age of 18 or a 16an institutionalizedseverely or profoundly mentally 17 retarded person at the time the alleged violation 18 occurred; and 19 (2) "Detains" means taking or retaining physical 20 custody of a child, whether or not the child resists or 21 objects; and 22 (3) "Lawful custodian" means a person or persons 23 granted legal custody of a child or entitled to physical 24 possession of a child pursuant to a court order. It is 25 presumed that, when the parties have never been married 26 to each other, the mother has legal custody of the child 27 unless a valid court order states otherwise. If an 28 adjudication of paternity has been completed and the 29 father has been assigned support obligations or 30 visitation rights, such a paternity order should, for the 31 purposes of this Section be considered a valid court 32 order granting custody to the mother. 33 (b) A person commits child abduction when he or she: SB401 Enrolled -4- LRB9201103RCcd 1 (1) Intentionally violates any terms of a valid 2 court order granting sole or joint custody, care or 3 possession to another, by concealing or detaining the 4 child or removing the child from the jurisdiction of the 5 court; or 6 (2) Intentionally violates a court order 7 prohibiting the person from concealing or detaining the 8 child or removing the child from the jurisdiction of the 9 court; or 10 (3) Intentionally conceals, detains or removes the 11 child without the consent of the mother or lawful 12 custodian of the child if the person is a putative father 13 and either: (A) the paternity of the child has not been 14 legally established or (B) the paternity of the child has 15 been legally established but no orders relating to 16 custody have been entered. However, notwithstanding the 17 presumption created by paragraph (3) of subsection (a), a 18 mother commits child abduction when she intentionally 19 conceals or removes a child, whom she has abandoned or 20 relinquished custody of, from an unadjudicated father who 21 has provided sole ongoing care and custody of the child 22 in her absence; or 23 (4) Intentionally conceals or removes the child 24 from a parent after filing a petition or being served 25 with process in an action affecting marriage or paternity 26 but prior to the issuance of a temporary or final order 27 determining custody; or 28 (5) At the expiration of visitation rights outside 29 the State, intentionally fails or refuses to return or 30 impedes the return of the child to the lawful custodian 31 in Illinois; or 32 (6) Being a parent of the child, and where the 33 parents of such child are or have been married and there 34 has been no court order of custody, conceals the child SB401 Enrolled -5- LRB9201103RCcd 1 for 15 days, and fails to make reasonable attempts within 2 the 15 day period to notify the other parent as to the 3 specific whereabouts of the child, including a means by 4 which to contact such child, or to arrange reasonable 5 visitation or contact with the child. It is not a 6 violation of this Section for a person fleeing domestic 7 violence to take the child with him or her to housing 8 provided by a domestic violence program; or 9 (7) Being a parent of the child, and where the 10 parents of the child are or have been married and there 11 has been no court order of custody, conceals, detains, or 12 removes the child with physical force or threat of 13 physical force; or 14 (8) Conceals, detains, or removes the child for 15 payment or promise of payment at the instruction of a 16 person who has no legal right to custody; or 17 (9) Retains in this State for 30 days a child 18 removed from another state without the consent of the 19 lawful custodian or in violation of a valid court order 20 of custody; or 21 (10) Intentionally lures or attempts to lure a 22 child under the age of 16 into a motor vehicle, building, 23 housetrailer, or dwelling place without the consent of 24 the parent or lawful custodian of the child for other 25 than a lawful purpose. 26 For the purposes of this subsection (b), paragraph (10), 27 the luring or attempted luring of a child under the age of 16 28 into a motor vehicle, building, housetrailer, or dwelling 29 place without the consent of the parent or lawful custodian 30 of the child shall be prima facie evidence of other than a 31 lawful purpose. 32 (c) It shall be an affirmative defense that: 33 (1) The person had custody of the child pursuant to 34 a court order granting legal custody or visitation rights SB401 Enrolled -6- LRB9201103RCcd 1 which existed at the time of the alleged violation; or 2 (2) The person had physical custody of the child 3 pursuant to a court order granting legal custody or 4 visitation rights and failed to return the child as a 5 result of circumstances beyond his or her control, and 6 the person notified and disclosed to the other parent or 7 legal custodian the specific whereabouts of the child and 8 a means by which such child can be contacted or made a 9 reasonable attempt to notify the other parent or lawful 10 custodian of the child of such circumstances and make 11 such disclosure within 24 hours after the visitation 12 period had expired and returned the child as soon as 13 possible; or 14 (3) The person was fleeing an incidence or pattern 15 of domestic violence; or 16 (4) The person lured or attempted to lure a child 17 under the age of 16 into a motor vehicle, building, 18 housetrailer, or dwelling place for a lawful purpose in 19 prosecutions under subsection (b), paragraph (10). 20 (d) A person convicted of child abduction under this 21 Section is guilty of a Class 4 felony. A person convicted of 22 a second or subsequent violation of paragraph (10) of 23 subsection (b) of this Section is guilty of a Class 3 felony. 24 It shall be a factor in aggravation for which a court may 25 impose a more severe sentence under Section 5-8-1 of the 26 Unified Code of Corrections, if upon sentencing the court 27 finds evidence of any of the following aggravating factors: 28 (1) that the defendant abused or neglected the 29 child following the concealment, detention or removal of 30 the child; or 31 (2) that the defendant inflicted or threatened to 32 inflict physical harm on a parent or lawful custodian of 33 the child or on the child with intent to cause such 34 parent or lawful custodian to discontinue criminal SB401 Enrolled -7- LRB9201103RCcd 1 prosecution of the defendant under this Section; or 2 (3) that the defendant demanded payment in exchange 3 for return of the child or demanded that he or she be 4 relieved of the financial or legal obligation to support 5 the child in exchange for return of the child; or 6 (4) that the defendant has previously been 7 convicted of child abduction; or 8 (5) that the defendant committed the abduction 9 while armed with a deadly weapon or the taking of the 10 child resulted in serious bodily injury to another; or 11 (6) that the defendant committed the abduction 12 while in a school, regardless of the time of day or time 13 of year; in a playground; on any conveyance owned, 14 leased, or contracted by a school to transport students 15 to or from school or a school related activity; on the 16 real property of a school; or on a public way within 17 1,000 feet of the real property comprising any school or 18 playground. For purposes of this paragraph (6), 19 "playground" means a piece of land owned or controlled by 20 a unit of local government that is designated by the unit 21 of local government for use solely or primarily for 22 children's recreation; and "school" means a public or 23 private elementary or secondary school, community 24 college, college, or university. 25 (e) The court may order the child to be returned to the 26 parent or lawful custodian from whom the child was concealed, 27 detained or removed. In addition to any sentence imposed, 28 the court may assess any reasonable expense incurred in 29 searching for or returning the child against any person 30 convicted of violating this Section. 31 (f) Nothing contained in this Section shall be construed 32 to limit the court's contempt power. 33 (g) Every law enforcement officer investigating an 34 alleged incident of child abduction shall make a written SB401 Enrolled -8- LRB9201103RCcd 1 police report of any bona fide allegation and the disposition 2 of such investigation. Every police report completed 3 pursuant to this Section shall be compiled and recorded 4 within the meaning of Section 5.1 of "An Act in relation to 5 criminal identification and investigation", approved July 2, 6 1931, as now or hereafter amended. 7 (h) Whenever a law enforcement officer has reasons to 8 believe a child abduction has occurred, he shall provide the 9 lawful custodian a summary of her or his rights under this 10 Act, including the procedures and relief available to her or 11 him. 12 (i) If during the course of an investigation under this 13 Section the child is found in the physical custody of the 14 defendant or another, the law enforcement officer shall 15 return the child to the parent or lawful custodian from whom 16 the child was concealed, detained or removed, unless there is 17 good cause for the law enforcement officer or the Department 18 of Children and Family Services to retain temporary 19 protective custody of the child pursuant to the Abused and 20 Neglected Child Reporting Act, as now or hereafter amended. 21 (Source: P.A. 90-494, eff. 1-1-98.) 22 (720 ILCS 5/11-15.1) (from Ch. 38, par. 11-15.1) 23 Sec. 11-15.1. Soliciting for a Juvenile Prostitute. 24 (a) Any person who violates any of the provisions of 25 Section 11-15(a) of this Act commits soliciting for a 26 juvenile prostitute where the prostitute for whom such person 27 is soliciting is under 16 years of age or is aan28institutionalizedseverely or profoundly mentally retarded 29 person. 30 (b) It is an affirmative defense to a charge of 31 soliciting for a juvenile prostitute that the accused 32 reasonably believed the person was of the age of 16 years or 33 over or was not aan institutionalizedseverely or profoundly SB401 Enrolled -9- LRB9201103RCcd 1 mentally retarded person at the time of the act giving rise 2 to the charge. 3 (c) Sentence. 4 Soliciting for a juvenile prostitute is a Class 1 felony. 5 (Source: P.A. 85-1392.) 6 (720 ILCS 5/11-19.1) (from Ch. 38, par. 11-19.1) 7 Sec. 11-19.1. Juvenile Pimping. 8 (a) Any person who receives any money, property, token, 9 object, or article or anything of value from a prostitute 10 under 16 years of age or from a prostitute who is aan11institutionalizedseverely or profoundly mentally retarded 12 person, not for a lawful consideration, knowing it was earned 13 in whole or in part from the practice of prostitution, 14 commits juvenile pimping. 15 (b) It is an affirmative defense to a charge of juvenile 16 pimping that the accused reasonably believed the person was 17 of the age of 16 years or over or was not aan18institutionalizedseverely or profoundly mentally retarded 19 person at the time of the act giving rise to the charge. 20 (c) Sentence. 21 Juvenile pimping is a Class 1 felony. 22 (Source: P.A. 91-696, eff. 4-13-00.) 23 (720 ILCS 5/11-19.2) (from Ch. 38, par. 11-19.2) 24 Sec. 11-19.2. Exploitation of a child. 25 (A) A person commits exploitation of a child when he or 26 she confines a child under the age of 16 or aan27institutionalizedseverely or profoundly mentally retarded 28 person against his or her will by the infliction or threat of 29 imminent infliction of great bodily harm, permanent 30 disability or disfigurement or by administering to the child 31 oran institutionalizedseverely or profoundly mentally 32 retarded person without his or her consent or by threat or SB401 Enrolled -10- LRB9201103RCcd 1 deception and for other than medical purposes, any alcoholic 2 intoxicant or a drug as defined in the Illinois Controlled 3 Substances Act or the Cannabis Control Act and: 4 (1) compels the child oran institutionalized5 severely or profoundly mentally retarded person to become 6 a prostitute; or 7 (2) arranges a situation in which the child oran8institutionalizedseverely or profoundly mentally 9 retarded person may practice prostitution; or 10 (3) receives any money, property, token, object, or 11 article or anything of value from the child oran12institutionalizedseverely or profoundly mentally 13 retarded person knowing it was obtained in whole or in 14 part from the practice of prostitution. 15 (B) For purposes of this Section, administering drugs, 16 as defined in subsection (A), or an alcoholic intoxicant to a 17 child under the age of 13 or aan institutionalizedseverely 18 or profoundly mentally retarded person shall be deemed to be 19 without consent if such administering is done without the 20 consent of the parents or legal guardian. 21 (C) Exploitation of a child is a Class X felony. 22 (D) Any person convicted under this Section is subject 23 to the forfeiture provisions of Section 11-20.1A of this Act. 24 (Source: P.A. 91-357, eff. 7-29-99; 91-696, eff. 4-13-00.) 25 (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1) 26 Sec. 11-20.1. Child pornography. 27 (a) A person commits the offense of child pornography 28 who: 29 (1) films, videotapes, photographs, or otherwise 30 depicts or portrays by means of any similar visual medium 31 or reproduction or depicts by computer any child whom he 32 knows or reasonably should know to be under the age of 18 33 or anyinstitutionalizedseverely or profoundly mentally SB401 Enrolled -11- LRB9201103RCcd 1 retarded person where such child orinstitutionalized2 severely or profoundly mentally retarded person is: 3 (i) actually or by simulation engaged in any 4 act of sexual intercourse with any person or animal; 5 or 6 (ii) actually or by simulation engaged in any 7 act of sexual contact involving the sex organs of 8 the child orinstitutionalizedseverely or 9 profoundly mentally retarded person and the mouth, 10 anus, or sex organs of another person or animal; or 11 which involves the mouth, anus or sex organs of the 12 child orinstitutionalizedseverely or profoundly 13 mentally retarded person and the sex organs of 14 another person or animal; or 15 (iii) actually or by simulation engaged in any 16 act of masturbation; or 17 (iv) actually or by simulation portrayed as 18 being the object of, or otherwise engaged in, any 19 act of lewd fondling, touching, or caressing 20 involving another person or animal; or 21 (v) actually or by simulation engaged in any 22 act of excretion or urination within a sexual 23 context; or 24 (vi) actually or by simulation portrayed or 25 depicted as bound, fettered, or subject to sadistic, 26 masochistic, or sadomasochistic abuse in any sexual 27 context; or 28 (vii) depicted or portrayed in any pose, 29 posture or setting involving a lewd exhibition of 30 the unclothed genitals, pubic area, buttocks, or, if 31 such person is female, a fully or partially 32 developed breast of the child or other person; or 33 (2) with the knowledge of the nature or content 34 thereof, reproduces, disseminates, offers to disseminate, SB401 Enrolled -12- LRB9201103RCcd 1 exhibits or possesses with intent to disseminate any 2 film, videotape, photograph or other similar visual 3 reproduction or depiction by computer of any child or 4institutionalizedseverely or profoundly mentally 5 retarded person whom the person knows or reasonably 6 should know to be under the age of 18 or to be aan7institutionalizedseverely or profoundly mentally 8 retarded person, engaged in any activity described in 9 subparagraphs (i) through (vii) of paragraph (1) of this 10 subsection; or 11 (3) with knowledge of the subject matter or theme 12 thereof, produces any stage play, live performance, film, 13 videotape or other similar visual portrayal or depiction 14 by computer which includes a child whom the person knows 15 or reasonably should know to be under the age of 18 or a 16an institutionalizedseverely or profoundly mentally 17 retarded person engaged in any activity described in 18 subparagraphs (i) through (vii) of paragraph (1) of this 19 subsection; or 20 (4) solicits, uses, persuades, induces, entices, or 21 coerces any child whom he knows or reasonably should know 22 to be under the age of 18 or aan institutionalized23 severely or profoundly mentally retarded person to appear 24 in any stage play, live presentation, film, videotape, 25 photograph or other similar visual reproduction or 26 depiction by computer in which the child or 27institutionalizedseverely or profoundly mentally 28 retarded person is or will be depicted, actually or by 29 simulation, in any act, pose or setting described in 30 subparagraphs (i) through (vii) of paragraph (1) of this 31 subsection; or 32 (5) is a parent, step-parent, legal guardian or 33 other person having care or custody of a child whom the 34 person knows or reasonably should know to be under the SB401 Enrolled -13- LRB9201103RCcd 1 age of 18 or aan institutionalizedseverely or 2 profoundly mentally retarded person and who knowingly 3 permits, induces, promotes, or arranges for such child or 4institutionalizedseverely or profoundly mentally 5 retarded person to appear in any stage play, live 6 performance, film, videotape, photograph or other similar 7 visual presentation, portrayal or simulation or depiction 8 by computer of any act or activity described in 9 subparagraphs (i) through (vii) of paragraph (1) of this 10 subsection; or 11 (6) with knowledge of the nature or content 12 thereof, possesses any film, videotape, photograph or 13 other similar visual reproduction or depiction by 14 computer of any child orinstitutionalizedseverely or 15 profoundly mentally retarded person whom the person knows 16 or reasonably should know to be under the age of 18 or to 17 be aan institutionalizedseverely or profoundly mentally 18 retarded person, engaged in any activity described in 19 subparagraphs (i) through (vii) of paragraph (1) of this 20 subsection; or 21 (7) solicits, uses, persuades, induces, entices, or 22 coerces a person to provide a child under the age of 18 23 or aan institutionalizedseverely or profoundly mentally 24 retarded person to appear in any videotape, photograph, 25 film, stage play, live presentation, or other similar 26 visual reproduction or depiction by computer in which the 27 child oran institutionalizedseverely or profoundly 28 mentally retarded person will be depicted, actually or by 29 simulation, in any act, pose, or setting described in 30 subparagraphs (i) through (vii) of paragraph (1) of this 31 subsection. 32 (b) (1) It shall be an affirmative defense to a charge 33 of child pornography that the defendant reasonably believed, 34 under all of the circumstances, that the child was 18 years SB401 Enrolled -14- LRB9201103RCcd 1 of age or older or that the person was not aan2institutionalizedseverely or profoundly mentally retarded 3 person but only where, prior to the act or acts giving rise 4 to a prosecution under this Section, he took some affirmative 5 action or made a bonafide inquiry designed to ascertain 6 whether the child was 18 years of age or older or that the 7 person was not aan institutionalizedseverely or profoundly 8 mentally retarded person and his reliance upon the 9 information so obtained was clearly reasonable. 10 (2) (Blank). 11 (3) The charge of child pornography shall not apply 12 to the performance of official duties by law enforcement 13 or prosecuting officers, court personnel or attorneys, 14 nor to bonafide treatment or professional education 15 programs conducted by licensed physicians, psychologists 16 or social workers. 17 (4) Possession by the defendant of more than one of 18 the same film, videotape or visual reproduction or 19 depiction by computer in which child pornography is 20 depicted shall raise a rebuttable presumption that the 21 defendant possessed such materials with the intent to 22 disseminate them. 23 (5) The charge of child pornography does not apply 24 to a person who does not voluntarily possess a film, 25 videotape, or visual reproduction or depiction by 26 computer in which child pornography is depicted. 27 Possession is voluntary if the defendant knowingly 28 procures or receives a film, videotape, or visual 29 reproduction or depiction for a sufficient time to be 30 able to terminate his or her possession. 31 (c) Violation of paragraph (1), (4), (5), or (7) of 32 subsection (a) is a Class 1 felony with a mandatory minimum 33 fine of $2,000 and a maximum fine of $100,000. Violation of 34 paragraph (3) of subsection (a) is a Class 1 felony with a SB401 Enrolled -15- LRB9201103RCcd 1 mandatory minimum fine of $1500 and a maximum fine of 2 $100,000. Violation of paragraph (2) of subsection (a) is a 3 Class 1 felony with a mandatory minimum fine of $1000 and a 4 maximum fine of $100,000. Violation of paragraph (6) of 5 subsection (a) is a Class 3 felony with a mandatory minimum 6 fine of $1000 and a maximum fine of $100,000. 7 (d) If a person is convicted of a second or subsequent 8 violation of this Section within 10 years of a prior 9 conviction, the court shall order a presentence psychiatric 10 examination of the person. The examiner shall report to the 11 court whether treatment of the person is necessary. 12 (e) Any film, videotape, photograph or other similar 13 visual reproduction or depiction by computer which includes a 14 child under the age of 18 or aan institutionalizedseverely 15 or profoundly mentally retarded person engaged in any 16 activity described in subparagraphs (i) through (vii) or 17 paragraph 1 of subsection (a), and any material or equipment 18 used or intended for use in photographing, filming, printing, 19 producing, reproducing, manufacturing, projecting, 20 exhibiting, depiction by computer, or disseminating such 21 material shall be seized and forfeited in the manner, method 22 and procedure provided by Section 36-1 of this Code for the 23 seizure and forfeiture of vessels, vehicles and aircraft. 24 (e-5) Upon the conclusion of a case brought under this 25 Section, the court shall seal all evidence depicting a victim 26 or witness that is sexually explicit. The evidence may be 27 unsealed and viewed, on a motion of the party seeking to 28 unseal and view the evidence, only for good cause shown and 29 in the discretion of the court. The motion must expressly 30 set forth the purpose for viewing the material. The State's 31 attorney and the victim, if possible, shall be provided 32 reasonable notice of the hearing on the motion to unseal the 33 evidence. Any person entitled to notice of a hearing under 34 this subsection (e-5) may object to the motion. SB401 Enrolled -16- LRB9201103RCcd 1 (f) Definitions. For the purposes of this Section: 2 (1) "Disseminate" means (i) to sell, distribute, 3 exchange or transfer possession, whether with or without 4 consideration or (ii) to make a depiction by computer 5 available for distribution or downloading through the 6 facilities of any telecommunications network or through 7 any other means of transferring computer programs or data 8 to a computer; 9 (2) "Produce" means to direct, promote, advertise, 10 publish, manufacture, issue, present or show; 11 (3) "Reproduce" means to make a duplication or 12 copy; 13 (4) "Depict by computer" means to generate or 14 create, or cause to be created or generated, a computer 15 program or data that, after being processed by a computer 16 either alone or in conjunction with one or more computer 17 programs, results in a visual depiction on a computer 18 monitor, screen, or display. 19 (5) "Depiction by computer" means a computer 20 program or data that, after being processed by a computer 21 either alone or in conjunction with one or more computer 22 programs, results in a visual depiction on a computer 23 monitor, screen, or display. 24 (6) "Computer", "computer program", and "data" have 25 the meanings ascribed to them in Section 16D-2 of this 26 Code. 27 (7) "Child" includes a film, videotape, photograph, 28 or other similar visual medium or reproduction or 29 depiction by computer that is, or appears to be, that of 30 a person, either in part, or in total, under the age of 31 18, regardless of the method by which the film, 32 videotape, photograph, or other similar visual medium or 33 reproduction or depiction by computer is created, 34 adopted, or modified to appear as such. "Child" also SB401 Enrolled -17- LRB9201103RCcd 1 includes a film, videotape, photograph, or other similar 2 visual medium or reproduction or depiction by computer 3 that is advertised, promoted, presented, described, or 4 distributed in such a manner that conveys the impression 5 that the film, videotape, photograph, or other similar 6 visual medium or reproduction or depiction by computer is 7 of a person under the age of 18. 8 (g) Re-enactment; findings; purposes. 9 (1) The General Assembly finds and declares that: 10 (i) Section 50-5 of Public Act 88-680, 11 effective January 1, 1995, contained provisions 12 amending the child pornography statute, Section 13 11-20.1 of the Criminal Code of 1961. Section 50-5 14 also contained other provisions. 15 (ii) In addition, Public Act 88-680 was 16 entitled "AN ACT to create a Safe Neighborhoods 17 Law". (A) Article 5 was entitled JUVENILE JUSTICE 18 and amended the Juvenile Court Act of 1987. (B) 19 Article 15 was entitled GANGS and amended various 20 provisions of the Criminal Code of 1961 and the 21 Unified Code of Corrections. (C) Article 20 was 22 entitled ALCOHOL ABUSE and amended various 23 provisions of the Illinois Vehicle Code. (D) 24 Article 25 was entitled DRUG ABUSE and amended the 25 Cannabis Control Act and the Illinois Controlled 26 Substances Act. (E) Article 30 was entitled FIREARMS 27 and amended the Criminal Code of 1961 and the Code 28 of Criminal Procedure of 1963. (F) Article 35 29 amended the Criminal Code of 1961, the Rights of 30 Crime Victims and Witnesses Act, and the Unified 31 Code of Corrections. (G) Article 40 amended the 32 Criminal Code of 1961 to increase the penalty for 33 compelling organization membership of persons. (H) 34 Article 45 created the Secure Residential Youth Care SB401 Enrolled -18- LRB9201103RCcd 1 Facility Licensing Act and amended the State Finance 2 Act, the Juvenile Court Act of 1987, the Unified 3 Code of Corrections, and the Private Correctional 4 Facility Moratorium Act. (I) Article 50 amended the 5 WIC Vendor Management Act, the Firearm Owners 6 Identification Card Act, the Juvenile Court Act of 7 1987, the Criminal Code of 1961, the Wrongs to 8 Children Act, and the Unified Code of Corrections. 9 (iii) On September 22, 1998, the Third 10 District Appellate Court in People v. Dainty, 701 11 N.E. 2d 118, ruled that Public Act 88-680 violates 12 the single subject clause of the Illinois 13 Constitution (Article IV, Section 8 (d)) and was 14 unconstitutional in its entirety. As of the time 15 this amendatory Act of 1999 was prepared, People v. 16 Dainty was still subject to appeal. 17 (iv) Child pornography is a vital concern to 18 the people of this State and the validity of future 19 prosecutions under the child pornography statute of 20 the Criminal Code of 1961 is in grave doubt. 21 (2) It is the purpose of this amendatory Act of 22 1999 to prevent or minimize any problems relating to 23 prosecutions for child pornography that may result from 24 challenges to the constitutional validity of Public Act 25 88-680 by re-enacting the Section relating to child 26 pornography that was included in Public Act 88-680. 27 (3) This amendatory Act of 1999 re-enacts Section 28 11-20.1 of the Criminal Code of 1961, as it has been 29 amended. This re-enactment is intended to remove any 30 question as to the validity or content of that Section; 31 it is not intended to supersede any other Public Act that 32 amends the text of the Section as set forth in this 33 amendatory Act of 1999. The material is shown as 34 existing text (i.e., without underscoring) because, as SB401 Enrolled -19- LRB9201103RCcd 1 of the time this amendatory Act of 1999 was prepared, 2 People v. Dainty was subject to appeal to the Illinois 3 Supreme Court. 4 (4) The re-enactment by this amendatory Act of 1999 5 of Section 11-20.1 of the Criminal Code of 1961 relating 6 to child pornography that was amended by Public Act 7 88-680 is not intended, and shall not be construed, to 8 imply that Public Act 88-680 is invalid or to limit or 9 impair any legal argument concerning whether those 10 provisions were substantially re-enacted by other Public 11 Acts. 12 (Source: P.A. 90-68, eff. 7-8-97; 90-678, eff. 7-31-98; 13 90-786, eff. 1-1-99; 91-54, eff. 6-30-99; 91-229, eff. 14 1-1-00; 91-357, eff. 7-29-99; revised 8-30-99.) 15 (720 ILCS 5/12-4.3) (from Ch. 38, par. 12-4.3) 16 Sec. 12-4.3. Aggravated battery of a child. 17 (a) Any person of the age 18 years and upwards who 18 intentionally or knowingly, and without legal justification 19 and by any means, causes great bodily harm or permanent 20 disability or disfigurement to any child under the age of 13 21 years or to anyinstitutionalizedseverely or profoundly 22 mentally retarded person, commits the offense of aggravated 23 battery of a child. 24 (b) Aggravated battery of a child is a Class X felony, 25 except that: 26 (1) if the person committed the offense while armed 27 with a firearm, 15 years shall be added to the term of 28 imprisonment imposed by the court; 29 (2) if, during the commission of the offense, the 30 person personally discharged a firearm, 20 years shall be 31 added to the term of imprisonment imposed by the court; 32 (3) if, during the commission of the offense, the 33 person personally discharged a firearm that proximately SB401 Enrolled -20- LRB9201103RCcd 1 caused great bodily harm, permanent disability, permanent 2 disfigurement, or death to another person, 25 years or up 3 to a term of natural life shall be added to the term of 4 imprisonment imposed by the court. 5 (Source: P.A. 91-357, eff. 7-29-99; 91-404, eff. 1-1-00.) 6 (720 ILCS 5/12-14) (from Ch. 38, par. 12-14) 7 Sec. 12-14. Aggravated Criminal Sexual Assault. 8 (a) The accused commits aggravated criminal sexual 9 assault if he or she commits criminal sexual assault and any 10 of the following aggravating circumstances existed during, or 11 for the purposes of paragraph (7) of this subsection (a) as 12 part of the same course of conduct as, the commission of the 13 offense: 14 (1) the accused displayed, threatened to use, or 15 used a dangerous weapon, other than a firearm, or any 16 object fashioned or utilized in such a manner as to lead 17 the victim under the circumstances reasonably to believe 18 it to be a dangerous weapon; or 19 (2) the accused caused bodily harm, except as 20 provided in subsection (a)(10), to the victim; or 21 (3) the accused acted in such a manner as to 22 threaten or endanger the life of the victim or any other 23 person; or 24 (4) the criminal sexual assault was perpetrated 25 during the course of the commission or attempted 26 commission of any other felony by the accused; or 27 (5) the victim was 60 years of age or over when the 28 offense was committed; or 29 (6) the victim was a physically handicapped person; 30 or 31 (7) the accused delivered (by injection, 32 inhalation, ingestion, transfer of possession, or any 33 other means) to the victim without his or her consent, or SB401 Enrolled -21- LRB9201103RCcd 1 by threat or deception, and for other than medical 2 purposes, any controlled substance; or 3 (8) the accused was armed with a firearm; or 4 (9) the accused personally discharged a firearm 5 during the commission of the offense; or 6 (10) the accused, during the commission of the 7 offense, personally discharged a firearm that proximately 8 caused great bodily harm, permanent disability, permanent 9 disfigurement, or death to another person. 10 (b) The accused commits aggravated criminal sexual 11 assault if the accused was under 17 years of age and (i) 12 commits an act of sexual penetration with a victim who was 13 under 9 years of age when the act was committed; or (ii) 14 commits an act of sexual penetration with a victim who was at 15 least 9 years of age but under 13 years of age when the act 16 was committed and the accused used force or threat of force 17 to commit the act. 18 (c) The accused commits aggravated criminal sexual 19 assault if he or she commits an act of sexual penetration 20 with a victim who was aan institutionalizedseverely or 21 profoundly mentally retarded person at the time the act was 22 committed. 23 (d) Sentence. 24 (1) Aggravated criminal sexual assault in violation 25 of paragraph (1), (2), (3), (4), (5), (6), or (7) of 26 subsection (a) is a Class X felony. A violation of 27 subsection (a)(8) is a Class X felony for which 15 years 28 shall be added to the term of imprisonment imposed by the 29 court. A violation of subsection (a)(9) is a Class X 30 felony for which 20 years shall be added to the term of 31 imprisonment imposed by the court. A violation of 32 subsection (a)(10) is a Class X felony for which 25 years 33 or up to a term of natural life imprisonment shall be 34 added to the term of imprisonment imposed by the court. SB401 Enrolled -22- LRB9201103RCcd 1 (2) A person who is convicted of a second or 2 subsequent offense of aggravated criminal sexual assault, 3 or who is convicted of the offense of aggravated criminal 4 sexual assault after having previously been convicted of 5 the offense of criminal sexual assault or the offense of 6 predatory criminal sexual assault of a child, or who is 7 convicted of the offense of aggravated criminal sexual 8 assault after having previously been convicted under the 9 laws of this or any other state of an offense that is 10 substantially equivalent to the offense of criminal 11 sexual assault, the offense of aggravated criminal sexual 12 assault or the offense of predatory criminal sexual 13 assault of a child, shall be sentenced to a term of 14 natural life imprisonment. The commission of the second 15 or subsequent offense is required to have been after the 16 initial conviction for this paragraph (2) to apply. 17 (Source: P.A. 90-396, eff. 1-1-98; 90-735, eff. 8-11-98; 18 91-404, eff. 1-1-00.) 19 (720 ILCS 5/12-16) (from Ch. 38, par. 12-16) 20 Sec. 12-16. Aggravated Criminal Sexual Abuse. 21 (a) The accused commits aggravated criminal sexual abuse 22 if he or she commits criminal sexual abuse as defined in 23 subsection (a) of Section 12-15 of this Code and any of the 24 following aggravating circumstances existed during, or for 25 the purposes of paragraph (7) of this subsection (a) as part 26 of the same course of conduct as, the commission of the 27 offense: 28 (1) the accused displayed, threatened to use or 29 used a dangerous weapon or any object fashioned or 30 utilized in such a manner as to lead the victim under the 31 circumstances reasonably to believe it to be a dangerous 32 weapon; or 33 (2) the accused caused bodily harm to the victim; SB401 Enrolled -23- LRB9201103RCcd 1 or 2 (3) the victim was 60 years of age or over when the 3 offense was committed; or 4 (4) the victim was a physically handicapped person; 5 or 6 (5) the accused acted in such a manner as to 7 threaten or endanger the life of the victim or any other 8 person; or 9 (6) the criminal sexual abuse was perpetrated 10 during the course of the commission or attempted 11 commission of any other felony by the accused; or 12 (7) the accused delivered (by injection, 13 inhalation, ingestion, transfer of possession, or any 14 other means) to the victim without his or her consent, or 15 by threat or deception, and for other than medical 16 purposes, any controlled substance. 17 (b) The accused commits aggravated criminal sexual abuse 18 if he or she commits an act of sexual conduct with a victim 19 who was under 18 years of age when the act was committed and 20 the accused was a family member. 21 (c) The accused commits aggravated criminal sexual abuse 22 if: 23 (1) the accused was 17 years of age or over and (i) 24 commits an act of sexual conduct with a victim who was 25 under 13 years of age when the act was committed; or (ii) 26 commits an act of sexual conduct with a victim who was at 27 least 13 years of age but under 17 years of age when the 28 act was committed and the accused used force or threat of 29 force to commit the act; or 30 (2) the accused was under 17 years of age and (i) 31 commits an act of sexual conduct with a victim who was 32 under 9 years of age when the act was committed; or (ii) 33 commits an act of sexual conduct with a victim who was at 34 least 9 years of age but under 17 years of age when the SB401 Enrolled -24- LRB9201103RCcd 1 act was committed and the accused used force or threat of 2 force to commit the act. 3 (d) The accused commits aggravated criminal sexual abuse 4 if he or she commits an act of sexual penetration or sexual 5 conduct with a victim who was at least 13 years of age but 6 under 17 years of age and the accused was at least 5 years 7 older than the victim. 8 (e) The accused commits aggravated criminal sexual abuse 9 if he or she commits an act of sexual conduct with a victim 10 who was aan institutionalizedseverely or profoundly 11 mentally retarded person at the time the act was committed. 12 (f) The accused commits aggravated criminal sexual abuse 13 if he or she commits an act of sexual conduct with a victim 14 who was at least 13 years of age but under 18 years of age 15 when the act was committed and the accused was 17 years of 16 age or over and held a position of trust, authority or 17 supervision in relation to the victim. 18 (g) Sentence. Aggravated criminal sexual abuse is a 19 Class 2 felony. 20 (Source: P.A. 89-586, eff. 7-31-96; 90-735, eff. 8-11-98.) 21 Section 10. The Code of Criminal Procedure of 1963 is 22 amended by changing Sections 106B-5 and 115-10 and by adding 23 Section 102-23 as follows: 24 (725 ILCS 5/102-23 new) 25 Sec. 102-23. "Moderately mentally retarded person" means 26 a person whose intelligence quotient is between 41 and 55 and 27 who does not suffer from significant mental illness to the 28 extent that the person's ability to exercise rational 29 judgment is impaired. 30 (725 ILCS 5/106B-5) 31 Sec. 106B-5. Testimony by a victim who is a child or a SB401 Enrolled -25- LRB9201103RCcd 1 moderately, severely, or profoundly mentally retarded person 2victim. 3 (a) In a proceeding in the prosecution of an offense of 4 criminal sexual assault, predatory criminal sexual assault of 5 a child, aggravated criminal sexual assault, criminal sexual 6 abuse, or aggravated criminal sexual abuse, a court may order 7 that the testimony of a victim who is a childvictimunder 8 the age of 18 years or a moderately, severely, or profoundly 9 mentally retarded person be taken outside the courtroom and 10 shown in the courtroom by means of a closed circuit 11 television if: 12 (1) the testimony is taken during the proceeding; 13 and 14 (2) the judge determines that testimony by the 15 child victim or the moderately, severely, or profoundly 16 mentally retarded victim in the courtroom will result in 17 the child or moderately, severely, or profoundly mentally 18 retarded person suffering serious emotional distress such 19 that the child or moderately, severely, or profoundly 20 mentally retarded person cannot reasonably communicate or 21 that the child or moderately, severely, or profoundly 22 mentally retarded person will suffer severe emotional 23 distress that is likely to cause the child or moderately, 24 severely, or profoundly mentally retarded person to 25 suffer severe adverse effects. 26 (b) Only the prosecuting attorney, the attorney for the 27 defendant, and the judge may question the child or 28 moderately, severely, or profoundly mentally retarded person. 29 (c) The operators of the closed circuit television shall 30 make every effort to be unobtrusive. 31 (d) Only the following persons may be in the room with 32 the child or moderately, severely, or profoundly mentally 33 retarded person when the child or moderately, severely, or 34 profoundly mentally retarded person testifies by closed SB401 Enrolled -26- LRB9201103RCcd 1 circuit television: 2 (1) the prosecuting attorney; 3 (2) the attorney for the defendant; 4 (3) the judge; 5 (4) the operators of the closed circuit television 6 equipment; and 7 (5) any person or persons whose presence, in the 8 opinion of the court, contributes to the well-being of 9 the child or moderately, severely, or profoundly mentally 10 retarded person, including a person who has dealt with 11 the child in a therapeutic setting concerning the abuse, 12 a parent or guardian of the child or moderately, 13 severely, or profoundly mentally retarded person, and 14 court security personnel. 15 (e) During the child's or moderately, severely, or 16 profoundly mentally retarded person's testimony by closed 17 circuit television, the defendant shall be in the courtroom 18 and shall not communicate with the jury if the cause is being 19 heard before a jury. 20 (f) The defendant shall be allowed to communicate with 21 the persons in the room where the child or moderately, 22 severely, or profoundly mentally retarded person is 23 testifying by any appropriate electronic method. 24 (g) The provisions of this Section do not apply if the 25 defendant represents himself pro se. 26 (h) This Section may not be interpreted to preclude, for 27 purposes of identification of a defendant, the presence of 28 both the victim and the defendant in the courtroom at the 29 same time. 30 (i) This Section applies to prosecutions pending on or 31 commenced on or after the effective date of this amendatory 32 Act of 1994. 33 (Source: P.A. 88-674, eff. 12-14-94; 89-428, eff. 12-13-95; 34 89-462, eff. 5-29-96.) SB401 Enrolled -27- LRB9201103RCcd 1 (725 ILCS 5/115-10) (from Ch. 38, par. 115-10) 2 Sec. 115-10. Certain hearsay exceptions. 3 (a) In a prosecution for a physical or sexual act 4 perpetrated upon or against a child under the age of 13, or a 5 person who was a moderately,an institutionalizedseverely, 6 or profoundly mentally retarded person as defined in this 7 Code and in Section 2-10.1 of the Criminal Code of 1961 at 8 the time the act was committed, including but not limited to 9 prosecutions for violations of Sections 12-13 through 12-16 10 of the Criminal Code of 1961 and prosecutions for violations 11 of Sections 10-1, 10-2, 10-3, 10-3.1, 10-4, 10-5, 10-6, 10-7, 12 11-6, 11-9, 11-11, 11-15.1, 11-17.1, 11-18.1, 11-19.1, 13 11-19.2, 11-20.1, 11-21, 12-1, 12-2, 12-3, 12-3.2, 12-4, 14 12-4.1, 12-4.2, 12-4.3, 12-4.7, 12-5, 12-6, 12-6.1, 12-7.1, 15 12-7.3, 12-7.4, 12-10, 12-11, 12-21.5, 12-21.6 and 12-32 of 16 the Criminal Code of 1961, the following evidence shall be 17 admitted as an exception to the hearsay rule: 18 (1) testimony by the victim of an out of court 19 statement made by the victim that he or she complained of 20 such act to another; and 21 (2) testimony of an out of court statement made by 22 the victim describing any complaint of such act or matter 23 or detail pertaining to any act which is an element of an 24 offense which is the subject of a prosecution for a 25 sexual or physical act against that victim. 26 (b) Such testimony shall only be admitted if: 27 (1) The court finds in a hearing conducted outside 28 the presence of the jury that the time, content, and 29 circumstances of the statement provide sufficient 30 safeguards of reliability; and 31 (2) The child or moderately,institutionalized32 severely, or profoundly mentally retarded person either: 33 (A) testifies at the proceeding; or 34 (B) is unavailable as a witness and there is SB401 Enrolled -28- LRB9201103RCcd 1 corroborative evidence of the act which is the 2 subject of the statement; and 3 (3) In a case involving an offense perpetrated 4 against a child under the age of 13, the out of court 5 statement was made before the victim attained 13 years of 6 age or within 3 months after the commission of the 7 offense, whichever occurs later, but the statement may be 8 admitted regardless of the age of the victim at the time 9 of the proceeding. 10 (c) If a statement is admitted pursuant to this Section, 11 the court shall instruct the jury that it is for the jury to 12 determine the weight and credibility to be given the 13 statement and that, in making the determination, it shall 14 consider the age and maturity of the child, or the 15 intellectual capabilities of the moderately, 16institutionalizedseverely, or profoundly mentally retarded 17 person, the nature of the statement, the circumstances under 18 which the statement was made, and any other relevant factor. 19 (d) The proponent of the statement shall give the 20 adverse party reasonable notice of his intention to offer the 21 statement and the particulars of the statement. 22 (e) Statements described in paragraphs (1) and (2) of 23 subsection (a) shall not be excluded on the basis that they 24 were obtained as a result of interviews conducted pursuant to 25 a protocol adopted by a Child Advocacy Advisory Board as set 26 forth in subsections (c), (d), and (e) of Section 3 of the 27 Children's Advocacy Center Act or that an interviewer or 28 witness to the interview was or is an employee, agent, or 29 investigator of a State's Attorney's office. 30 (Source: P.A. 90-656, eff. 7-30-98; 90-786, eff. 1-1-99; 31 91-357, eff. 7-29-99.)