103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB4837

 

Introduced 2/7/2024, by Rep. Abdelnasser Rashid

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/11-20.1  from Ch. 38, par. 11-20.1

    Amends the Criminal Code of 2012. Provides that for purposes of violating the child pornography law, depicting a person under 18 years of age personally engaging in or personally simulating any act of sexual penetration or sexual conduct includes a representation of a real or fictitious person through use of artificially intelligent software or computer-generated means, who is, or who a reasonable person would regard as being, a real person under 18 years of age, engaging in or simulating any act of sexual penetration or sexual conduct.


LRB103 38161 RLC 68294 b

 

 

A BILL FOR

 

HB4837LRB103 38161 RLC 68294 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 2012 is amended by
5changing Section 11-20.1 as follows:
 
6    (720 ILCS 5/11-20.1)  (from Ch. 38, par. 11-20.1)
7    Sec. 11-20.1. Child pornography.
8    (a) A person commits child pornography who:
9        (1) films, videotapes, photographs, or otherwise
10    depicts or portrays by means of any similar visual medium
11    or reproduction or depicts by computer any child whom he
12    or she knows or reasonably should know to be under the age
13    of 18 or any person with a severe or profound intellectual
14    disability where such child or person with a severe or
15    profound intellectual disability is:
16            (i) actually or by simulation engaged in any act
17        of sexual penetration or sexual conduct with any
18        person or animal; or
19            (ii) actually or by simulation engaged in any act
20        of sexual penetration or sexual conduct involving the
21        sex organs of the child or person with a severe or
22        profound intellectual disability and the mouth, anus,
23        or sex organs of another person or animal; or which

 

 

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1        involves the mouth, anus or sex organs of the child or
2        person with a severe or profound intellectual
3        disability and the sex organs of another person or
4        animal; or
5            (iii) actually or by simulation engaged in any act
6        of masturbation; or
7            (iv) actually or by simulation portrayed as being
8        the object of, or otherwise engaged in, any act of lewd
9        fondling, touching, or caressing involving another
10        person or animal; or
11            (v) actually or by simulation engaged in any act
12        of excretion or urination within a sexual context; or
13            (vi) actually or by simulation portrayed or
14        depicted as bound, fettered, or subject to sadistic,
15        masochistic, or sadomasochistic abuse in any sexual
16        context; or
17            (vii) depicted or portrayed in any pose, posture
18        or setting involving a lewd exhibition of the
19        unclothed or transparently clothed genitals, pubic
20        area, buttocks, or, if such person is female, a fully
21        or partially developed breast of the child or other
22        person; or
23        (2) with the knowledge of the nature or content
24    thereof, reproduces, disseminates, offers to disseminate,
25    exhibits or possesses with intent to disseminate any film,
26    videotape, photograph or other similar visual reproduction

 

 

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1    or depiction by computer of any child or person with a
2    severe or profound intellectual disability whom the person
3    knows or reasonably should know to be under the age of 18
4    or to be a person with a severe or profound intellectual
5    disability, engaged in any activity described in
6    subparagraphs (i) through (vii) of paragraph (1) of this
7    subsection; or
8        (3) with knowledge of the subject matter or theme
9    thereof, produces any stage play, live performance, film,
10    videotape or other similar visual portrayal or depiction
11    by computer which includes a child whom the person knows
12    or reasonably should know to be under the age of 18 or a
13    person with a severe or profound intellectual disability
14    engaged in any activity described in subparagraphs (i)
15    through (vii) of paragraph (1) of this subsection; or
16        (4) solicits, uses, persuades, induces, entices, or
17    coerces any child whom he or she knows or reasonably
18    should know to be under the age of 18 or a person with a
19    severe or profound intellectual disability to appear in
20    any stage play, live presentation, film, videotape,
21    photograph or other similar visual reproduction or
22    depiction by computer in which the child or person with a
23    severe or profound intellectual disability is or will be
24    depicted, actually or by simulation, in any act, pose or
25    setting described in subparagraphs (i) through (vii) of
26    paragraph (1) of this subsection; or

 

 

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1        (5) is a parent, step-parent, legal guardian or other
2    person having care or custody of a child whom the person
3    knows or reasonably should know to be under the age of 18
4    or a person with a severe or profound intellectual
5    disability and who knowingly permits, induces, promotes,
6    or arranges for such child or person with a severe or
7    profound intellectual disability to appear in any stage
8    play, live performance, film, videotape, photograph or
9    other similar visual presentation, portrayal or simulation
10    or depiction by computer of any act or activity described
11    in subparagraphs (i) through (vii) of paragraph (1) of
12    this subsection; or
13        (6) with knowledge of the nature or content thereof,
14    possesses any film, videotape, photograph or other similar
15    visual reproduction or depiction by computer of any child
16    or person with a severe or profound intellectual
17    disability whom the person knows or reasonably should know
18    to be under the age of 18 or to be a person with a severe
19    or profound intellectual disability, engaged in any
20    activity described in subparagraphs (i) through (vii) of
21    paragraph (1) of this subsection; or
22        (7) solicits, or knowingly uses, persuades, induces,
23    entices, or coerces, a person to provide a child under the
24    age of 18 or a person with a severe or profound
25    intellectual disability to appear in any videotape,
26    photograph, film, stage play, live presentation, or other

 

 

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1    similar visual reproduction or depiction by computer in
2    which the child or person with a severe or profound
3    intellectual disability will be depicted, actually or by
4    simulation, in any act, pose, or setting described in
5    subparagraphs (i) through (vii) of paragraph (1) of this
6    subsection.
7    (a-1) For purposes of paragraphs (1) through (7) of
8subsection (a), depicting a person under 18 years of age
9personally engaging in or personally simulating any act of
10sexual penetration or sexual conduct includes a representation
11of a real or fictitious person through use of artificially
12intelligent software or computer-generated means, who is, or
13who a reasonable person would regard as being, a real person
14under 18 years of age, engaging in or simulating any act of
15sexual penetration or sexual conduct.
16    (a-5) The possession of each individual film, videotape,
17photograph, or other similar visual reproduction or depiction
18by computer in violation of this Section constitutes a single
19and separate violation. This subsection (a-5) does not apply
20to multiple copies of the same film, videotape, photograph, or
21other similar visual reproduction or depiction by computer
22that are identical to each other.
23    (b)(1) It shall be an affirmative defense to a charge of
24child pornography that the defendant reasonably believed,
25under all of the circumstances, that the child was 18 years of
26age or older or that the person was not a person with a severe

 

 

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1or profound intellectual disability but only where, prior to
2the act or acts giving rise to a prosecution under this
3Section, he or she took some affirmative action or made a
4bonafide inquiry designed to ascertain whether the child was
518 years of age or older or that the person was not a person
6with a severe or profound intellectual disability and his or
7her reliance upon the information so obtained was clearly
8reasonable.
9    (1.5) Telecommunications carriers, commercial mobile
10service providers, and providers of information services,
11including, but not limited to, Internet service providers and
12hosting service providers, are not liable under this Section
13by virtue of the transmission, storage, or caching of
14electronic communications or messages of others or by virtue
15of the provision of other related telecommunications,
16commercial mobile services, or information services used by
17others in violation of this Section.
18    (2) (Blank).
19    (3) The charge of child pornography shall not apply to the
20performance of official duties by law enforcement or
21prosecuting officers or persons employed by law enforcement or
22prosecuting agencies, court personnel or attorneys, nor to
23bonafide treatment or professional education programs
24conducted by licensed physicians, psychologists or social
25workers. In any criminal proceeding, any property or material
26that constitutes child pornography shall remain in the care,

 

 

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1custody, and control of either the State or the court. A motion
2to view the evidence shall comply with subsection (e-5) of
3this Section.
4    (4) If the defendant possessed more than one of the same
5film, videotape or visual reproduction or depiction by
6computer in which child pornography is depicted, then the
7trier of fact may infer that the defendant possessed such
8materials with the intent to disseminate them.
9    (5) The charge of child pornography does not apply to a
10person who does not voluntarily possess a film, videotape, or
11visual reproduction or depiction by computer in which child
12pornography is depicted. Possession is voluntary if the
13defendant knowingly procures or receives a film, videotape, or
14visual reproduction or depiction for a sufficient time to be
15able to terminate his or her possession.
16    (6) Any violation of paragraph (1), (2), (3), (4), (5), or
17(7) of subsection (a) that includes a child engaged in,
18solicited for, depicted in, or posed in any act of sexual
19penetration or bound, fettered, or subject to sadistic,
20masochistic, or sadomasochistic abuse in a sexual context
21shall be deemed a crime of violence.
22    (c) If the violation does not involve a film, videotape,
23or other moving depiction, a violation of paragraph (1), (4),
24(5), or (7) of subsection (a) is a Class 1 felony with a
25mandatory minimum fine of $2,000 and a maximum fine of
26$100,000. If the violation involves a film, videotape, or

 

 

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1other moving depiction, a violation of paragraph (1), (4),
2(5), or (7) of subsection (a) is a Class X felony with a
3mandatory minimum fine of $2,000 and a maximum fine of
4$100,000. If the violation does not involve a film, videotape,
5or other moving depiction, a violation of paragraph (3) of
6subsection (a) is a Class 1 felony with a mandatory minimum
7fine of $1500 and a maximum fine of $100,000. If the violation
8involves a film, videotape, or other moving depiction, a
9violation of paragraph (3) of subsection (a) is a Class X
10felony with a mandatory minimum fine of $1500 and a maximum
11fine of $100,000. If the violation does not involve a film,
12videotape, or other moving depiction, a violation of paragraph
13(2) of subsection (a) is a Class 1 felony with a mandatory
14minimum fine of $1000 and a maximum fine of $100,000. If the
15violation involves a film, videotape, or other moving
16depiction, a violation of paragraph (2) of subsection (a) is a
17Class X felony with a mandatory minimum fine of $1000 and a
18maximum fine of $100,000. If the violation does not involve a
19film, videotape, or other moving depiction, a violation of
20paragraph (6) of subsection (a) is a Class 3 felony with a
21mandatory minimum fine of $1000 and a maximum fine of
22$100,000. If the violation involves a film, videotape, or
23other moving depiction, a violation of paragraph (6) of
24subsection (a) is a Class 2 felony with a mandatory minimum
25fine of $1000 and a maximum fine of $100,000.
26    (c-5) Where the child depicted is under the age of 13, a

 

 

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1violation of paragraph (1), (2), (3), (4), (5), or (7) of
2subsection (a) is a Class X felony with a mandatory minimum
3fine of $2,000 and a maximum fine of $100,000. Where the child
4depicted is under the age of 13, a violation of paragraph (6)
5of subsection (a) is a Class 2 felony with a mandatory minimum
6fine of $1,000 and a maximum fine of $100,000. Where the child
7depicted is under the age of 13, a person who commits a
8violation of paragraph (1), (2), (3), (4), (5), or (7) of
9subsection (a) where the defendant has previously been
10convicted under the laws of this State or any other state of
11the offense of child pornography, aggravated child
12pornography, aggravated criminal sexual abuse, aggravated
13criminal sexual assault, predatory criminal sexual assault of
14a child, or any of the offenses formerly known as rape, deviate
15sexual assault, indecent liberties with a child, or aggravated
16indecent liberties with a child where the victim was under the
17age of 18 years or an offense that is substantially equivalent
18to those offenses, is guilty of a Class X felony for which the
19person shall be sentenced to a term of imprisonment of not less
20than 9 years with a mandatory minimum fine of $2,000 and a
21maximum fine of $100,000. Where the child depicted is under
22the age of 13, a person who commits a violation of paragraph
23(6) of subsection (a) where the defendant has previously been
24convicted under the laws of this State or any other state of
25the offense of child pornography, aggravated child
26pornography, aggravated criminal sexual abuse, aggravated

 

 

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1criminal sexual assault, predatory criminal sexual assault of
2a child, or any of the offenses formerly known as rape, deviate
3sexual assault, indecent liberties with a child, or aggravated
4indecent liberties with a child where the victim was under the
5age of 18 years or an offense that is substantially equivalent
6to those offenses, is guilty of a Class 1 felony with a
7mandatory minimum fine of $1,000 and a maximum fine of
8$100,000. The issue of whether the child depicted is under the
9age of 13 is an element of the offense to be resolved by the
10trier of fact.
11    (d) If a person is convicted of a second or subsequent
12violation of this Section within 10 years of a prior
13conviction, the court shall order a presentence psychiatric
14examination of the person. The examiner shall report to the
15court whether treatment of the person is necessary.
16    (e) Any film, videotape, photograph or other similar
17visual reproduction or depiction by computer which includes a
18child under the age of 18 or a person with a severe or profound
19intellectual disability engaged in any activity described in
20subparagraphs (i) through (vii) or paragraph 1 of subsection
21(a), and any material or equipment used or intended for use in
22photographing, filming, printing, producing, reproducing,
23manufacturing, projecting, exhibiting, depiction by computer,
24or disseminating such material shall be seized and forfeited
25in the manner, method and procedure provided by Section 36-1
26of this Code for the seizure and forfeiture of vessels,

 

 

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1vehicles and aircraft.
2    In addition, any person convicted under this Section is
3subject to the property forfeiture provisions set forth in
4Article 124B of the Code of Criminal Procedure of 1963.
5    (e-5) Upon the conclusion of a case brought under this
6Section, the court shall seal all evidence depicting a victim
7or witness that is sexually explicit. The evidence may be
8unsealed and viewed, on a motion of the party seeking to unseal
9and view the evidence, only for good cause shown and in the
10discretion of the court. The motion must expressly set forth
11the purpose for viewing the material. The State's attorney and
12the victim, if possible, shall be provided reasonable notice
13of the hearing on the motion to unseal the evidence. Any person
14entitled to notice of a hearing under this subsection (e-5)
15may object to the motion.
16    (f) Definitions. For the purposes of this Section:
17        (1) "Disseminate" means (i) to sell, distribute,
18    exchange or transfer possession, whether with or without
19    consideration or (ii) to make a depiction by computer
20    available for distribution or downloading through the
21    facilities of any telecommunications network or through
22    any other means of transferring computer programs or data
23    to a computer.
24        (2) "Produce" means to direct, promote, advertise,
25    publish, manufacture, issue, present or show.
26        (3) "Reproduce" means to make a duplication or copy.

 

 

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1        (4) "Depict by computer" means to generate or create,
2    or cause to be created or generated, a computer program or
3    data that, after being processed by a computer either
4    alone or in conjunction with one or more computer
5    programs, results in a visual depiction on a computer
6    monitor, screen, or display.
7        (5) "Depiction by computer" means a computer program
8    or data that, after being processed by a computer either
9    alone or in conjunction with one or more computer
10    programs, results in a visual depiction on a computer
11    monitor, screen, or display.
12        (6) "Computer", "computer program", and "data" have
13    the meanings ascribed to them in Section 17.05 of this
14    Code.
15        (7) For the purposes of this Section, "child
16    pornography" includes a film, videotape, photograph, or
17    other similar visual medium or reproduction or depiction
18    by computer that is, or appears to be, that of a person,
19    either in part, or in total, under the age of 18 or a
20    person with a severe or profound intellectual disability,
21    regardless of the method by which the film, videotape,
22    photograph, or other similar visual medium or reproduction
23    or depiction by computer is created, adopted, or modified
24    to appear as such. "Child pornography" also includes a
25    film, videotape, photograph, or other similar visual
26    medium or reproduction or depiction by computer that is

 

 

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1    advertised, promoted, presented, described, or distributed
2    in such a manner that conveys the impression that the
3    film, videotape, photograph, or other similar visual
4    medium or reproduction or depiction by computer is of a
5    person under the age of 18 or a person with a severe or
6    profound intellectual disability.
7    (g) Re-enactment; findings; purposes.
8        (1) The General Assembly finds and declares that:
9            (i) Section 50-5 of Public Act 88-680, effective
10        January 1, 1995, contained provisions amending the
11        child pornography statute, Section 11-20.1 of the
12        Criminal Code of 1961. Section 50-5 also contained
13        other provisions.
14            (ii) In addition, Public Act 88-680 was entitled
15        "AN ACT to create a Safe Neighborhoods Law". (A)
16        Article 5 was entitled JUVENILE JUSTICE and amended
17        the Juvenile Court Act of 1987. (B) Article 15 was
18        entitled GANGS and amended various provisions of the
19        Criminal Code of 1961 and the Unified Code of
20        Corrections. (C) Article 20 was entitled ALCOHOL ABUSE
21        and amended various provisions of the Illinois Vehicle
22        Code. (D) Article 25 was entitled DRUG ABUSE and
23        amended the Cannabis Control Act and the Illinois
24        Controlled Substances Act. (E) Article 30 was entitled
25        FIREARMS and amended the Criminal Code of 1961 and the
26        Code of Criminal Procedure of 1963. (F) Article 35

 

 

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1        amended the Criminal Code of 1961, the Rights of Crime
2        Victims and Witnesses Act, and the Unified Code of
3        Corrections. (G) Article 40 amended the Criminal Code
4        of 1961 to increase the penalty for compelling
5        organization membership of persons. (H) Article 45
6        created the Secure Residential Youth Care Facility
7        Licensing Act and amended the State Finance Act, the
8        Juvenile Court Act of 1987, the Unified Code of
9        Corrections, and the Private Correctional Facility
10        Moratorium Act. (I) Article 50 amended the WIC Vendor
11        Management Act, the Firearm Owners Identification Card
12        Act, the Juvenile Court Act of 1987, the Criminal Code
13        of 1961, the Wrongs to Children Act, and the Unified
14        Code of Corrections.
15            (iii) On September 22, 1998, the Third District
16        Appellate Court in People v. Dainty, 701 N.E. 2d 118,
17        ruled that Public Act 88-680 violates the single
18        subject clause of the Illinois Constitution (Article
19        IV, Section 8 (d)) and was unconstitutional in its
20        entirety. As of the time this amendatory Act of 1999
21        was prepared, People v. Dainty was still subject to
22        appeal.
23            (iv) Child pornography is a vital concern to the
24        people of this State and the validity of future
25        prosecutions under the child pornography statute of
26        the Criminal Code of 1961 is in grave doubt.

 

 

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1        (2) It is the purpose of this amendatory Act of 1999 to
2    prevent or minimize any problems relating to prosecutions
3    for child pornography that may result from challenges to
4    the constitutional validity of Public Act 88-680 by
5    re-enacting the Section relating to child pornography that
6    was included in Public Act 88-680.
7        (3) This amendatory Act of 1999 re-enacts Section
8    11-20.1 of the Criminal Code of 1961, as it has been
9    amended. This re-enactment is intended to remove any
10    question as to the validity or content of that Section; it
11    is not intended to supersede any other Public Act that
12    amends the text of the Section as set forth in this
13    amendatory Act of 1999. The material is shown as existing
14    text (i.e., without underscoring) because, as of the time
15    this amendatory Act of 1999 was prepared, People v. Dainty
16    was subject to appeal to the Illinois Supreme Court.
17        (4) The re-enactment by this amendatory Act of 1999 of
18    Section 11-20.1 of the Criminal Code of 1961 relating to
19    child pornography that was amended by Public Act 88-680 is
20    not intended, and shall not be construed, to imply that
21    Public Act 88-680 is invalid or to limit or impair any
22    legal argument concerning whether those provisions were
23    substantially re-enacted by other Public Acts.
24(Source: P.A. 101-87, eff. 1-1-20; 102-567, eff. 1-1-22.)