Sen. John J. Millner
Filed: 3/15/2011
 
 

 

 

 
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1
AMENDMENT TO SENATE BILL 1228 




2    AMENDMENT NO. ______. Amend Senate Bill 1228 by replacing 
3everything after the enacting clause with the following:

 
 
4    "Section 5. The Criminal Code of 1961 is amended  by 
5changing Sections 8-4 and 10-5 as follows:
 



6    (720 ILCS 5/8-4)  (from Ch. 38, par. 8-4)


7    Sec. 8-4. Attempt. 

8    (a) Elements of the offense.

9    A person commits the offense of attempt when, with intent 
10to commit a specific
offense, he or she does any act that 
11constitutes a substantial step toward the
commission of that 
12offense.

13    (b) Impossibility.

14    It is not a defense to a charge of attempt that because of 
15a
misapprehension of the circumstances it would have been 
16impossible for
the accused to commit the offense attempted.

 
 
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1    (c) Sentence.

2    A person convicted of attempt may be fined or imprisoned or 
3both
not to exceed the maximum provided for the offense 
4attempted but, except
for an attempt to commit the offense 
5defined in Section 33A-2 of this Code:



6        (1) the sentence for attempt to commit first degree 
7    murder is the
sentence for a Class X felony, except that


8            (A) an attempt to commit first
degree murder when 
9        at least one of the aggravating factors specified in

10        paragraphs (1), (2), and (12) of subsection (b) of 
11        Section 9-1 is present is
a Class X felony for which 
12        the sentence shall be a term of imprisonment of
not 
13        less than 20 years and not more than 80 years;


14            (B) an attempt to commit first degree murder while 
15        armed with a
firearm is a Class X felony for which 15 
16        years shall be added to the term of
imprisonment 
17        imposed by the court;


18            (C) an attempt to commit first degree murder during 
19        which the person
personally discharged a firearm is a 
20        Class X felony for which 20 years
shall be added to the 
21        term of imprisonment imposed by the court;


22            (D) an attempt to commit first degree murder during 
23        which the person
personally discharged a firearm that 
24        proximately caused great bodily harm,
permanent 
25        disability, permanent disfigurement, or death to

26        another person is a Class X felony for which 25 years 
 
 
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1        or up to a term of
natural life shall be added to the 
2        term of imprisonment imposed by the court; and

3            (E) if the defendant proves by a preponderance of 
4        the evidence at sentencing that, at the time of the 
5        attempted murder, he or she was acting under a sudden 
6        and intense passion resulting from serious provocation 
7        by the individual whom the defendant endeavored to 
8        kill,  or another, and, had the individual the defendant 
9        endeavored to kill died, the defendant would have 
10        negligently or accidentally caused that death, then 
11        the sentence for the attempted murder is the sentence 
12        for a Class 1 felony; 
13        (1.5) the sentence for attempt to commit child 
14    abduction under paragraph (10) of subsection (b) of Section 
15    10-5 of this Code is the sentence for a Class 4 felony; 

16        (2) the sentence for attempt to commit a Class X felony 
17    is the sentence
for a Class 1 felony;


18        (3) the sentence for attempt to commit a Class 1 felony 
19    is the sentence
for a Class 2 felony;


20        (4) the sentence for attempt to commit a Class 2 felony 
21    is the sentence
for a Class 3 felony; and


22        (5) the sentence for attempt to commit any felony other 
23    than those
specified in items (1), (1.5), (2), (3), and (4) 
24    of this subsection (c) is
the sentence for a Class A 
25    misdemeanor.

26(Source: P.A. 96-710, eff. 1-1-10.)

 



 
 
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1    (720 ILCS 5/10-5)  (from Ch. 38, par. 10-5)



2    Sec. 10-5. Child abduction. 

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

4the following meanings:


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


8        (2) "Detains" means taking or retaining physical 
9    custody of a child,
whether or not the child resists or 
10    objects.


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

22        (4) "Putative father" means a man who has a reasonable 
23    belief that he is the father of a child born of a woman who 
24    is not his wife. 
25    (b) A person commits the offense of child abduction when he 
 
 
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1or she does any one of the following:


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


6        (2) Intentionally violates a court order prohibiting 
7    the person from
concealing or detaining the child or 
8    removing the child
from the jurisdiction of the court.


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

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


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


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


4        (6) Being a parent of the child, and if the parents of 
5    that child
are or have been married and there has been no 
6    court order of custody,
knowingly conceals the child for 15 
7    days, and fails to make reasonable attempts
within the 
8    15-day period to notify the other parent as to the specific

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


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


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


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


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

11        (11) With the intent to obstruct or prevent efforts to 
12    locate the child victim of a child abduction, knowingly 
13    destroys, alters, conceals, or disguises physical evidence 
14    or furnishes false information. 
15    (c) It is an affirmative defense to subsections (b)(1) 
16through (b)(10) of this Section that:


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


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

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

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


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


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

11    (d) Other than a person convicted for a violation of 
12paragraph (10) of subsection (b), a A person convicted of child 
13abduction under this Section is guilty of
a Class 4 felony. A 
14person convicted of a violation of paragraph (10) of subsection 
15(b) of this Section is guilty of a Class 3 felony.  A person 
16convicted of a second or subsequent violation of
paragraph (10) 
17of subsection (b) of this Section is guilty of a Class 2 3

18felony.  It is a factor in aggravation under subsections (b)(1) 
19through (b)(10) of this Section for which a court
may impose a 
20more severe sentence under Section 5-8-1 (730 ILCS 5/5-8-1) or 
21Article 4.5 of Chapter V of the Unified Code
of Corrections if, 
22upon sentencing, the court finds evidence of any of the

23following aggravating factors:


24        (1) that the defendant abused or neglected the child 
25    following the
concealment, detention, or removal of the 
26    child;


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


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


10        (4) that the defendant has previously been convicted of 
11    child abduction;



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


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

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

2    (e) The court may order the child to be returned to the 
3parent or lawful
custodian from whom the child was concealed, 
4detained, or removed.  In
addition to any sentence imposed, the 
5court may assess any reasonable
expense incurred in searching 
6for or returning the child against any
person convicted of 
7violating this Section.

8    (f) Nothing contained in this Section shall be construed to 
9limit the
court's contempt power.

10    (g) Every law enforcement officer investigating an alleged 
11incident of
child abduction shall make a written police report 
12of any bona fide
allegation and the disposition of that 
13investigation.  Every police report
completed pursuant to this 
14Section shall be compiled and recorded within
the meaning of 
15Section 5.1 of the Criminal Identification Act.

16    (h) Whenever a law enforcement officer has reasons to 
17believe a child
abduction has occurred, she or he shall provide 
18the lawful custodian a summary of
her or his rights under this 
19Code, including the procedures and relief
available to her or 
20him.

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

22Section the child is found in the physical custody of the 
23defendant or
another, the law enforcement officer shall return 
24the child to the parent
or lawful custodian from whom the child 
25was concealed, detained, or removed,
unless there is good cause 
26for the law enforcement officer or the
Department of Children 
 
 
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1and Family Services to retain temporary protective
custody of 
2the child pursuant to the Abused and Neglected Child Reporting

3Act.

4(Source: P.A. 95-1052, eff. 7-1-09; 96-710, eff. 1-1-10;  
596-1000, eff. 7-2-10.)".