Sen. Jacqueline Y. Collins
Filed: 4/11/2011
 
 

 

 

 
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1
AMENDMENT TO SENATE BILL 1038




2    AMENDMENT NO. ______. Amend Senate Bill 1038 by replacing 
3everything after the enacting clause with the following:

 
4    "Section 5. The Criminal Code of 1961 is amended  by 
5changing Section 10-5 as follows:
 



6    (720 ILCS 5/10-5)  (from Ch. 38, par. 10-5)



7    Sec. 10-5. Child abduction. 

8    (a) For purposes of this Section, the following terms have

9the following meanings:


10        (1) "Child" means a person who, at the time the alleged 
11    violation occurred, was under the age of 18 or
severely or 
12    profoundly mentally retarded.


13        (2) "Detains" means taking or retaining physical 
14    custody of a child,
whether or not the child resists or 
15    objects.

16        (2.1) "Express consent" means oral or written 
 
 
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1    permission that is positive, direct, and unequivocal, 
2    requiring no inference or implication to supply its 
3    meaning. 
4        (2.2)  "Luring" means any knowing act to solicit, 
5    entice, tempt, or attempt to attract the minor. 

6        (3) "Lawful custodian" means a person or persons 
7    granted legal custody
of a child or entitled to physical 
8    possession of a child pursuant to a
court order.  It is 
9    presumed that, when the parties have never been
married to 
10    each other, the mother has legal custody of the child 
11    unless a
valid court order states otherwise.  If an 
12    adjudication of paternity has
been completed and the father 
13    has been assigned support obligations or
visitation 
14    rights, such a paternity order should, for the purposes of 
15    this
Section, be considered a valid court order granting 
16    custody to the mother.

17        (4) "Putative father" means a man who has a reasonable 
18    belief that he is the father of a child born of a woman who 
19    is not his wife. 
20        (5)  "Unlawful purpose" means any misdemeanor or felony 
21    violation of State law or a similar federal or sister state 
22    law or local ordinance. 
23    (b) A person commits the offense of child abduction when he 
24or she does any one of the following:


25        (1) Intentionally violates any terms of a valid court 
26    order granting
sole or joint custody, care, or possession 
 
 
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1    to another by concealing or
detaining the child or removing 
2    the child from the jurisdiction of the
court.


3        (2) Intentionally violates a court order prohibiting 
4    the person from
concealing or detaining the child or 
5    removing the child
from the jurisdiction of the court.


6        (3) Intentionally conceals, detains, or removes the 
7    child without the
consent of the mother or lawful custodian 
8    of the child if the person is a
putative father and either: 
9    (A) the paternity of the child has not been
legally 
10    established or (B) the paternity of the child has been 
11    legally
established but no orders relating to custody have 
12    been entered. Notwithstanding the presumption created by 
13    paragraph (3) of subsection (a),
however, a mother commits 
14    child abduction when she intentionally conceals or removes

15    a child, whom she has abandoned or relinquished custody of, 
16    from an
unadjudicated father who has provided sole ongoing 
17    care and custody of the
child in her absence.


18        (4) Intentionally conceals or removes the child from a 
19    parent after
filing a petition or being served with process 
20    in an action affecting
marriage or paternity but prior to 
21    the issuance of a temporary or final
order determining 
22    custody.


23        (5) At the expiration of visitation rights outside the 
24    State,
intentionally fails or refuses to return or impedes 
25    the return of the child
to the lawful custodian in 
26    Illinois.


 
 
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1        (6) Being a parent of the child, and if the parents of 
2    that child
are or have been married and there has been no 
3    court order of custody,
knowingly conceals the child for 15 
4    days, and fails to make reasonable attempts
within the 
5    15-day period to notify the other parent as to the specific

6    whereabouts of the child, including a means by which to 
7    contact the child,
or to arrange reasonable visitation or 
8    contact with the child. It is not a
violation of this 
9    Section for a person fleeing domestic violence to take
the 
10    child with him or her to housing provided by a domestic 
11    violence program.


12        (7) Being a parent of the child, and if the parents of 
13    the child
are or have been married and there has been no 
14    court order of
custody, knowingly conceals, detains, or 
15    removes the child with physical force or
threat of physical 
16    force.


17        (8) Knowingly conceals, detains, or removes the child 
18    for payment or promise of
payment at the instruction of a 
19    person who has no legal right to custody.


20        (9) Knowingly retains in this State for 30 days a child 
21    removed from another state
without the consent of the 
22    lawful custodian or in violation of a valid
court order of 
23    custody.


24        (10) Intentionally lures or attempts to lure a child 
25    under the age of 16
into a motor vehicle, building, 
26    housetrailer, or dwelling place without the
consent of the 
 
 
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1    child's parent or lawful custodian for other than a lawful 
2    purpose. For the purposes of this item (10), the trier of 
3    fact may infer that luring
or attempted luring of a child 
4    under the age of 16 into a motor vehicle,
building, 
5    housetrailer, or dwelling place without the express 
6    consent of the child's parent
or lawful custodian or with 
7    the intent to avoid the express consent of the child's 
8    parent or lawful custodian was for is prima facie evidence 
9    of other
than a lawful purpose.

10        (11) With the intent to obstruct or prevent efforts to 
11    locate the child victim of a child abduction, knowingly 
12    destroys, alters, conceals, or disguises physical evidence 
13    or furnishes false information. 
14    (c) It is an affirmative defense to subsections (b)(1) 
15through (b)(10) of this Section that:


16        (1) the person had custody of the child pursuant to a 
17    court order
granting legal custody or visitation rights 
18    that existed at the time of
the alleged violation;


19        (2) the person had physical custody of the child 
20    pursuant to a court
order granting legal custody or 
21    visitation rights and failed to return the
child as a 
22    result of circumstances beyond his or her control, and the

23    person notified and disclosed to the other parent or legal 
24    custodian the
specific whereabouts of the child and a means 
25    by which the child could be
contacted or made a reasonable 
26    attempt to notify the other parent or lawful
custodian of 
 
 
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1    the child of those circumstances and made the disclosure

2    within 24 hours after the visitation period had expired and 
3    returned the
child as soon as possible;


4        (3) the person was fleeing an incidence or pattern of 
5    domestic violence; or


6        (4) the person lured or attempted to lure a child under 
7    the age of 16
into a motor vehicle, building, housetrailer, 
8    or dwelling place for a
lawful purpose in prosecutions 
9    under paragraph (10) of subsection (b).

10    (d) A person convicted of child abduction under this 
11Section is guilty of
a Class 4 felony.  A person convicted of 
12child abduction under subsection (b)(10) shall undergo a sex 
13offender evaluation prior to a sentence being imposed. A person 
14convicted of a second or subsequent violation of
paragraph (10) 
15of subsection (b) of this Section is guilty of a Class 3

16felony.  A person convicted of child abduction under subsection 
17(b)(10) when the person has a prior conviction of a sex offense 
18as defined in the Sex Offender Registration Act or any 
19substantially similar federal, Uniform Code of Military 
20Justice, sister state, or foreign government offense is guilty 
21of a Class 2 felony. It is a factor in aggravation under 
22subsections (b)(1) through (b)(10) of this Section for which a 
23court
may impose a more severe sentence under Section 5-8-1 
24(730 ILCS 5/5-8-1) or Article 4.5 of Chapter V of the Unified 
25Code
of Corrections if, upon sentencing, the court finds 
26evidence of any of the
following aggravating factors:


 
 
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1        (1) that the defendant abused or neglected the child 
2    following the
concealment, detention, or removal of the 
3    child;


4        (2) that the defendant inflicted or threatened to 
5    inflict physical harm
on a parent or lawful custodian of 
6    the child or on the child with intent to
cause that parent 
7    or lawful custodian to discontinue criminal prosecution
of 
8    the defendant under this Section;


9        (3) that the defendant demanded payment in exchange for 
10    return of the
child or demanded that he or she be relieved 
11    of the financial or legal
obligation to support the child 
12    in exchange for return of the child;


13        (4) that the defendant has previously been convicted of 
14    child abduction;



15        (5) that the defendant committed the abduction while 
16    armed with a deadly
weapon or the taking of the child 
17    resulted in serious bodily injury to
another; or


18        (6) that the defendant committed the abduction while in 
19    a school,
regardless of the time of day or time of year; in 
20    a playground; on any
conveyance owned,
leased, or 
21    contracted by a school to transport students to or from 
22    school or a
school related activity; on the real property 
23    of a school;
or on a
public way within 1,000 feet of the 
24    real property comprising any school or
playground.  For 
25    purposes of this paragraph (6), "playground" means a piece

26    of land owned or controlled by a unit of local government 
 
 
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1    that is designated by
the unit of local government for use 
2    solely or primarily for children's
recreation;
and 
3    "school" means a public or private
elementary or secondary 
4    school, community college, college, or university.

5    (e) The court may order the child to be returned to the 
6parent or lawful
custodian from whom the child was concealed, 
7detained, or removed.  In
addition to any sentence imposed, the 
8court may assess any reasonable
expense incurred in searching 
9for or returning the child against any
person convicted of 
10violating this Section.

11    (f) Nothing contained in this Section shall be construed to 
12limit the
court's contempt power.

13    (g) Every law enforcement officer investigating an alleged 
14incident of
child abduction shall make a written police report 
15of any bona fide
allegation and the disposition of that 
16investigation.  Every police report
completed pursuant to this 
17Section shall be compiled and recorded within
the meaning of 
18Section 5.1 of the Criminal Identification Act.

19    (h) Whenever a law enforcement officer has reasons to 
20believe a child
abduction has occurred, she or he shall provide 
21the lawful custodian a summary of
her or his rights under this 
22Code, including the procedures and relief
available to her or 
23him.

24    (i) If during the course of an investigation under this

25Section the child is found in the physical custody of the 
26defendant or
another, the law enforcement officer shall return 
 
 
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1the child to the parent
or lawful custodian from whom the child 
2was concealed, detained, or removed,
unless there is good cause 
3for the law enforcement officer or the
Department of Children 
4and Family Services to retain temporary protective
custody of 
5the child pursuant to the Abused and Neglected Child Reporting

6Act.

7(Source: P.A. 95-1052, eff. 7-1-09; 96-710, eff. 1-1-10; 
896-1000, eff. 7-2-10.)".