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Judiciary I - Civil Law Committee
Filed: 3/9/2005
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09400HB4023ham002 |
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LRB094 11300 RLC 43353 a |
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| AMENDMENT TO HOUSE BILL 4023
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| AMENDMENT NO. ______. Amend House Bill 4023 on page 1, line |
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| 1, by changing "video games" to "criminal law"; and |
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| on page 1, by replacing lines 4 and 5 with the following:
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| "Section 5. The Criminal Code of 1961 is amended by |
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| changing Section 11-21 and by adding Articles 12A and 12B as |
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| follows:
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| (720 ILCS 5/11-21) (from Ch. 38, par. 11-21)
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| Sec. 11-21. Harmful material.
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| (a) As used in this Section:
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| "Distribute" means transfer possession of, whether |
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| with or without consideration.
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| "Harmful to minors" means that quality of any |
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| description or representation, in whatever form, of |
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| nudity, sexual conduct, sexual excitement, or |
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| sado-masochistic abuse, when, taken as a whole, it (i) |
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| predominately appeals to the prurient interest in sex of |
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| minors, (ii) is patently offensive to prevailing standards |
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| in the adult community in the State as a whole with respect |
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| to what is suitable material for minors, and (iii) lacks |
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| serious literary, artistic, political, or scientific value |
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| for minors.
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| "Knowingly" means having knowledge of the contents of |
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| the subject matter, or recklessly failing to exercise |
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LRB094 11300 RLC 43353 a |
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| reasonable inspection which would have disclosed the |
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| contents.
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| "Material" means (i) any picture, photograph, drawing, |
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| sculpture, film, video game, computer game, video or |
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| similar visual depiction, including any such |
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| representation or image which is stored electronically, or |
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| (ii) any book, magazine, printed matter however |
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| reproduced, or recorded audio of any sort.
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| "Minor" means any person under the age of 18.
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| "Nudity" means the showing of the human male or female |
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| genitals, pubic area or buttocks with less than a full |
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| opaque covering, or the showing of the female breast with |
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| less than a fully opaque covering of any portion below the |
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| top of the nipple, or the depiction of covered male |
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| genitals in a discernably turgid state.
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| "Sado-masochistic abuse" means flagellation or torture |
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| by or upon a person clad in undergarments, a mask or |
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| bizarre costume, or the condition of being fettered, bound |
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| or otherwise physically restrained on the part of one |
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| clothed for sexual gratification or stimulation.
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| "Sexual conduct" means acts of masturbation, sexual |
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| intercourse, or physical contact with a person's clothed or |
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| unclothed genitals, pubic area, buttocks or, if such person |
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| be a female, breast.
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| "Sexual excitement" means the condition of human male |
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| or female genitals when in a state of sexual stimulation or |
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| arousal.
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| (b) A person is guilty of distributing harmful material to |
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| a minor when he or she:
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| (1) knowingly sells, lends, distributes, or gives away |
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| to a minor, knowing that the minor is under the age of 18 |
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| or failing to exercise reasonable care in ascertaining the |
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| person's true age:
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| (A) any material which depicts nudity, sexual |
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09400HB4023ham002 |
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LRB094 11300 RLC 43353 a |
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| conduct or sado-masochistic abuse, or which contains |
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| explicit and detailed verbal descriptions or narrative |
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| accounts of sexual excitement, sexual conduct or |
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| sado-masochistic abuse, and which taken as a whole is |
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| harmful to minors;
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| (B) a motion picture, show, or other presentation |
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| which depicts nudity, sexual conduct or |
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| sado-masochistic abuse and is harmful to minors; or
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| (C) an admission ticket or pass to premises where |
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| there is exhibited or to be exhibited such a motion |
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| picture, show, or other presentation; or
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| (2) admits a minor to premises where there is exhibited |
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| or to be exhibited such a motion picture, show, or other |
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| presentation, knowing that the minor is a person under the |
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| age of 18 or failing to exercise reasonable care in |
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| ascertaining the person's true age.
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| (c) In any prosecution arising under this Section, it is an |
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| affirmative defense:
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| (1) that the minor as to whom the offense is alleged to |
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| have been committed exhibited to the accused a draft card, |
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| driver's license, birth certificate or other official or |
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| apparently official document purporting to establish that |
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| the minor was 18 years of age or older, which was relied |
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| upon by the accused;
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| (2) that the defendant was in a parental or |
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| guardianship relationship with the minor or that the minor |
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| was accompanied by a parent or legal guardian;
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| (3) that the defendant was a bona fide school, museum, |
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| or public library, or was a person acting in the course of |
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| his or her employment as an employee or official of such |
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| organization or retail outlet affiliated with and serving |
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| the educational purpose of such organization;
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| (4) that the act charged was committed in aid of |
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| legitimate scientific or educational purposes; or
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09400HB4023ham002 |
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LRB094 11300 RLC 43353 a |
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| (5) that an advertisement of harmful material as |
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| defined in this Section culminated in the sale or |
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| distribution of such harmful material to a child under |
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| circumstances where there was no personal confrontation of |
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| the child by the defendant, his employees, or agents, as |
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| where the order or request for such harmful material was |
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| transmitted by mail, telephone, Internet or similar means |
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| of communication, and delivery of such harmful material to |
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| the child was by mail, freight, Internet or similar means |
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| of transport, which advertisement contained the following |
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| statement, or a substantially similar statement, and that |
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| the defendant required the purchaser to certify that he or |
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| she was not under the age of 18 and that the purchaser |
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| falsely stated that he or she was not under the age of 18: |
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| "NOTICE: It is unlawful for any person under the age of 18 |
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| to purchase the matter advertised. Any person under the age |
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| of 18 that falsely states that he or she is not under the |
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| age of 18 for the purpose of obtaining the material |
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| advertised is guilty of a Class B misdemeanor under the |
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| laws of the State."
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| (d) The predominant appeal to prurient interest of the |
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| material shall be judged with reference to average children of |
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| the same general age of the child to whom such material was |
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| sold, lent, distributed or given, unless it appears from the |
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| nature of the matter or the circumstances of its dissemination |
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| or distribution that it is designed for specially susceptible |
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| groups, in which case the predominant appeal of the material |
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| shall be judged with reference to its intended or probable |
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| recipient group.
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| (e) Distribution of harmful material in violation of this |
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| Section is a Class A misdemeanor. A second or subsequent |
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| offense is a Class 4 felony.
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| (f) Any person under the age of 18 that falsely states, |
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| either orally or in writing, that he or she is not under the |
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09400HB4023ham002 |
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LRB094 11300 RLC 43353 a |
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| age of 18, or that presents or offers to any person any |
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| evidence of age and identity that is false or not actually his |
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| or her own for the purpose of ordering, obtaining, viewing, or |
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| otherwise procuring or attempting to procure or view any |
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| harmful material is guilty of a Class B misdemeanor.
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| (a) Elements of the Offense.
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| A person who, with knowledge that a person is a child, that |
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| is a person
under 18 years of age, or who fails to exercise |
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| reasonable care in
ascertaining the true age of a child, |
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| knowingly distributes to or sends or
causes to be sent to, or |
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| exhibits to, or offers to distribute or exhibit
any harmful |
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| material to a child, is guilty of a misdemeanor.
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| (b) Definitions.
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| (1) Material is harmful if, to the average person, applying |
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| contemporary
standards, its predominant appeal, taken as a |
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| whole, is to prurient
interest, that is a shameful or morbid |
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| interest in nudity, sex, or
excretion, which goes substantially |
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| beyond customary limits of candor in
description or |
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| representation of such matters, and is material the
redeeming |
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| social importance of which is substantially less than its
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| prurient appeal.
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| (2) Material, as used in this Section means any writing, |
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| picture, record
or other representation or embodiment.
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| (3) Distribute means to transfer possession of, whether |
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| with or without
consideration.
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| (4) Knowingly, as used in this section means having |
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| knowledge of the
contents of the subject matter, or recklessly |
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| failing to exercise
reasonable inspection which would have |
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| disclosed the contents thereof.
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| (c) Interpretation of Evidence.
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| The predominant appeal to prurient interest of the material |
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| shall be
judged with reference to average children of the same |
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| general age of the
child to whom such material was offered, |
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| distributed, sent or exhibited,
unless it appears from the |
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09400HB4023ham002 |
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LRB094 11300 RLC 43353 a |
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| nature of the matter or the circumstances of its
dissemination, |
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| distribution or exhibition that it is designed for specially
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| susceptible groups, in which case the predominant appeal of the |
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| material
shall be judged with reference to its intended or |
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| probable recipient group.
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| In prosecutions under this section, where circumstances of |
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| production,
presentation, sale, dissemination, distribution, |
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| or publicity indicate the
material is being commercially |
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| exploited for the sake of its prurient
appeal, such evidence is |
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| probative with respect to the nature of the
material and can |
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| justify the conclusion that the redeeming social
importance of |
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| the material is in fact substantially less than its prurient
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| appeal.
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| (d) Sentence.
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| Distribution of harmful material in violation of this |
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| Section is a Class
A misdemeanor. A second or subsequent |
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| offense is a Class 4 felony.
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| (e) Affirmative Defenses.
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| (1) Nothing in this section shall prohibit any public |
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| library or any
library operated by an accredited institution of |
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| higher education from
circulating harmful material to any |
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| person under 18 years of age, provided
such circulation is in |
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| aid of a legitimate scientific or educational
purpose, and it |
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| shall be an affirmative defense in any prosecution for a
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| violation of this section that the act charged was committed in |
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| aid of
legitimate scientific or educational purposes.
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| (2) Nothing in this section shall prohibit any parent from |
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| distributing
to his child any harmful material.
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| (3) Proof that the defendant demanded, was shown and acted |
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| in reliance
upon any of the following documents as proof of the |
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| age of a child, shall
be a defense to any criminal prosecution |
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| under this section: A document
issued by the federal government |
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| or any state, county or municipal
government or subdivision or |
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| agency thereof, including, but not limited to,
a motor vehicle |
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09400HB4023ham002 |
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LRB094 11300 RLC 43353 a |
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| operator's license, a registration certificate issued under
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| the Federal Selective Service Act or an identification card |
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| issued to a
member of the armed forces.
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| (4) In the event an advertisement of harmful material as |
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| defined in this
section culminates in the sale or distribution |
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| of such harmful material to
a child, under circumstances where |
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| there was no personal confrontation of
the child by the |
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| defendant, his employees or agents, as where the order or
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| request for such harmful material was transmitted by mail, |
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| telephone, or
similar means of communication, and delivery of |
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| such harmful material to
the child was by mail, freight, or |
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| similar means of transport, it shall be
a defense in any |
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| prosecution for a violation of this section that the
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| advertisement contained the following statement, or a |
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| statement
substantially similar thereto, and that the |
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| defendant required the
purchaser to certify that he was not |
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| under 18 years of age and that the
purchaser falsely stated |
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| that he was not under 18 years of age: "NOTICE: It
is unlawful |
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| for any person under 18 years of age to purchase the matter
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| herein advertised. Any person under 18 years of age who falsely |
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| states that
he is not under 18 years of age for the purpose of |
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| obtaining the material
advertised herein, is guilty of a Class |
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| B misdemeanor under the laws of the
State of Illinois."
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| (f) Child Falsifying Age.
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| Any person under 18 years of age who falsely states, either |
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| orally or in
writing, that he is not under the age of 18 years, |
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| or who presents or
offers to any person any evidence of age and |
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| identity which is false or not
actually his own for the purpose |
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| of ordering, obtaining, viewing, or
otherwise procuring or |
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| attempting to procure or view any harmful material,
is guilty |
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| of a Class B misdemeanor.
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| (Source: P.A. 77-2638.)".
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