94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB5817

 

Introduced 8/3/2006, by Rep. Ed Sullivan, Jr.

 

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

    Amends the Criminal Code of 1961. Provides that possession by a defendant of 100 or more items of child pornography is prima facie evidence that the defendant possessed those items with the intent to disseminate them.


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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1     AN ACT concerning criminal law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Criminal Code of 1961 is amended by changing
5 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 the offense of 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     knows or reasonably should know to be under the age of 18
13     or any severely or profoundly mentally retarded person
14     where such child or severely or profoundly mentally
15     retarded person is:
16             (i) actually or by simulation engaged in any act of
17         sexual penetration or sexual conduct with any person or
18         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 severely or profoundly
22         mentally retarded person and the mouth, anus, or sex
23         organs of another person or animal; or which involves
24         the mouth, anus or sex organs of the child or severely
25         or profoundly mentally retarded person and the sex
26         organs of another person or animal; or
27             (iii) actually or by simulation engaged in any act
28         of masturbation; or
29             (iv) actually or by simulation portrayed as being
30         the object of, or otherwise engaged in, any act of lewd
31         fondling, touching, or caressing involving another
32         person or animal; or

 

 

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1             (v) actually or by simulation engaged in any act of
2         excretion or urination within a sexual context; or
3             (vi) actually or by simulation portrayed or
4         depicted as bound, fettered, or subject to sadistic,
5         masochistic, or sadomasochistic abuse in any sexual
6         context; or
7             (vii) depicted or portrayed in any pose, posture or
8         setting involving a lewd exhibition of the unclothed or
9         transparently clothed genitals, pubic area, buttocks,
10         or, if such person is female, a fully or partially
11         developed breast of the child or other person; or
12         (2) with the knowledge of the nature or content
13     thereof, reproduces, disseminates, offers to disseminate,
14     exhibits or possesses with intent to disseminate any film,
15     videotape, photograph or other similar visual reproduction
16     or depiction by computer of any child or severely or
17     profoundly mentally retarded person whom the person knows
18     or reasonably should know to be under the age of 18 or to
19     be a severely or profoundly mentally retarded person,
20     engaged in any activity described in subparagraphs (i)
21     through (vii) of paragraph (1) of this subsection; or
22         (3) with knowledge of the subject matter or theme
23     thereof, produces any stage play, live performance, film,
24     videotape or other similar visual portrayal or depiction by
25     computer which includes a child whom the person knows or
26     reasonably should know to be under the age of 18 or a
27     severely or profoundly mentally retarded person engaged in
28     any activity described in subparagraphs (i) through (vii)
29     of paragraph (1) of this subsection; or
30         (4) solicits, uses, persuades, induces, entices, or
31     coerces any child whom he knows or reasonably should know
32     to be under the age of 18 or a severely or profoundly
33     mentally retarded person to appear in any stage play, live
34     presentation, film, videotape, photograph or other similar
35     visual reproduction or depiction by computer in which the
36     child or severely or profoundly mentally retarded person is

 

 

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1     or will be depicted, actually or by simulation, in any act,
2     pose or setting described in subparagraphs (i) through
3     (vii) of paragraph (1) of this subsection; or
4         (5) is a parent, step-parent, legal guardian or other
5     person having care or custody of a child whom the person
6     knows or reasonably should know to be under the age of 18
7     or a severely or profoundly mentally retarded person and
8     who knowingly permits, induces, promotes, or arranges for
9     such child or severely or profoundly mentally retarded
10     person to appear in any stage play, live performance, film,
11     videotape, photograph or other similar visual
12     presentation, portrayal or simulation or depiction by
13     computer of any act or activity described in subparagraphs
14     (i) through (vii) of paragraph (1) of this subsection; or
15         (6) with knowledge of the nature or content thereof,
16     possesses any film, videotape, photograph or other similar
17     visual reproduction or depiction by computer of any child
18     or severely or profoundly mentally retarded person whom the
19     person knows or reasonably should know to be under the age
20     of 18 or to be a severely or profoundly mentally retarded
21     person, engaged in any activity described in subparagraphs
22     (i) through (vii) of paragraph (1) of this subsection; or
23         (7) solicits, uses, persuades, induces, entices, or
24     coerces a person to provide a child under the age of 18 or
25     a severely or profoundly mentally retarded person to appear
26     in any videotape, photograph, film, stage play, live
27     presentation, or other similar visual reproduction or
28     depiction by computer in which the child or severely or
29     profoundly mentally retarded person will be depicted,
30     actually or by simulation, in any act, pose, or setting
31     described in subparagraphs (i) through (vii) of paragraph
32     (1) of this subsection.
33     (b) (1) It shall be an affirmative defense to a charge of
34     child pornography that the defendant reasonably believed,
35     under all of the circumstances, that the child was 18 years
36     of age or older or that the person was not a severely or

 

 

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1     profoundly mentally retarded person but only where, prior
2     to the act or acts giving rise to a prosecution under this
3     Section, he took some affirmative action or made a bonafide
4     inquiry designed to ascertain whether the child was 18
5     years of age or older or that the person was not a severely
6     or profoundly mentally retarded person and his reliance
7     upon the information so obtained was clearly reasonable.
8         (2) (Blank).
9         (3) The charge of child pornography shall not apply to
10     the performance of official duties by law enforcement or
11     prosecuting officers or persons employed by law
12     enforcement or prosecuting agencies, court personnel or
13     attorneys, nor to bonafide treatment or professional
14     education programs conducted by licensed physicians,
15     psychologists or social workers.
16         (4) Possession by the defendant of more than one of the
17     same film, videotape or visual reproduction or depiction by
18     computer in which child pornography is depicted shall raise
19     a rebuttable presumption that the defendant possessed such
20     materials with the intent to disseminate them.
21         (4.5) Possession by the defendant of 100 or more items
22     depicting any child or severely or profoundly mentally
23     retarded person whom the person knows or reasonably should
24     know to be under the age of 18 or to be a severely or
25     profoundly mentally retarded person engaged in any
26     activity described in subparagraphs (i) through (vii) of
27     paragraph (1) of subsection (a) is prima facie evidence
28     that the defendant possessed those items with the intent to
29     disseminate those items.
30         (5) The charge of child pornography does not apply to a
31     person who does not voluntarily possess a film, videotape,
32     or visual reproduction or depiction by computer in which
33     child pornography is depicted. Possession is voluntary if
34     the defendant knowingly procures or receives a film,
35     videotape, or visual reproduction or depiction for a
36     sufficient time to be able to terminate his or her

 

 

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1     possession.
2     (c) Violation of paragraph (1), (4), (5), or (7) of
3 subsection (a) is a Class 1 felony with a mandatory minimum
4 fine of $2,000 and a maximum fine of $100,000. Violation of
5 paragraph (3) of subsection (a) is a Class 1 felony with a
6 mandatory minimum fine of $1500 and a maximum fine of $100,000.
7 Violation of paragraph (2) of subsection (a) is a Class 1
8 felony with a mandatory minimum fine of $1000 and a maximum
9 fine of $100,000. Violation of paragraph (6) of subsection (a)
10 is a Class 3 felony with a mandatory minimum fine of $1000 and
11 a maximum fine of $100,000.
12     (d) If a person is convicted of a second or subsequent
13 violation of this Section within 10 years of a prior
14 conviction, the court shall order a presentence psychiatric
15 examination of the person. The examiner shall report to the
16 court whether treatment of the person is necessary.
17     (e) Any film, videotape, photograph or other similar visual
18 reproduction or depiction by computer which includes a child
19 under the age of 18 or a severely or profoundly mentally
20 retarded person engaged in any activity described in
21 subparagraphs (i) through (vii) or paragraph 1 of subsection
22 (a), and any material or equipment used or intended for use in
23 photographing, filming, printing, producing, reproducing,
24 manufacturing, projecting, exhibiting, depiction by computer,
25 or disseminating such material shall be seized and forfeited in
26 the manner, method and procedure provided by Section 36-1 of
27 this Code for the seizure and forfeiture of vessels, vehicles
28 and aircraft.
29     (e-5) Upon the conclusion of a case brought under this
30 Section, the court shall seal all evidence depicting a victim
31 or witness that is sexually explicit. The evidence may be
32 unsealed and viewed, on a motion of the party seeking to unseal
33 and view the evidence, only for good cause shown and in the
34 discretion of the court. The motion must expressly set forth
35 the purpose for viewing the material. The State's attorney and
36 the victim, if possible, shall be provided reasonable notice of

 

 

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1 the hearing on the motion to unseal the evidence. Any person
2 entitled to notice of a hearing under this subsection (e-5) may
3 object to the motion.
4     (f) Definitions. For the purposes of this Section:
5         (1) "Disseminate" means (i) to sell, distribute,
6     exchange or transfer possession, whether with or without
7     consideration or (ii) to make a depiction by computer
8     available for distribution or downloading through the
9     facilities of any telecommunications network or through
10     any other means of transferring computer programs or data
11     to a computer.
12         (2) "Produce" means to direct, promote, advertise,
13     publish, manufacture, issue, present or show.
14         (3) "Reproduce" means to make a duplication or copy.
15         (4) "Depict by computer" means to generate or create,
16     or cause to be created or generated, a computer program or
17     data that, after being processed by a computer either alone
18     or in conjunction with one or more computer programs,
19     results in a visual depiction on a computer monitor,
20     screen, or display.
21         (5) "Depiction by computer" means a computer program or
22     data that, after being processed by a computer either alone
23     or in conjunction with one or more computer programs,
24     results in a visual depiction on a computer monitor,
25     screen, or display.
26         (6) "Computer", "computer program", and "data" have
27     the meanings ascribed to them in Section 16D-2 of this
28     Code.
29         (7) "Child" includes a film, videotape, photograph, or
30     other similar visual medium or reproduction or depiction by
31     computer that is, or appears to be, that of a person,
32     either in part, or in total, under the age of 18,
33     regardless of the method by which the film, videotape,
34     photograph, or other similar visual medium or reproduction
35     or depiction by computer is created, adopted, or modified
36     to appear as such. "Child" also includes a film, videotape,

 

 

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1     photograph, or other similar visual medium or reproduction
2     or depiction by computer that is advertised, promoted,
3     presented, described, or distributed in such a manner that
4     conveys the impression that the film, videotape,
5     photograph, or other similar visual medium or reproduction
6     or depiction by computer is of a person under the age of
7     18.
8         (8) "Sexual penetration" and "sexual conduct" have the
9     meanings ascribed to them in Section 12-12 of this Code.
10     (g) Re-enactment; findings; purposes.
11         (1) The General Assembly finds and declares that:
12             (i) Section 50-5 of Public Act 88-680, effective
13         January 1, 1995, contained provisions amending the
14         child pornography statute, Section 11-20.1 of the
15         Criminal Code of 1961. Section 50-5 also contained
16         other provisions.
17             (ii) In addition, Public Act 88-680 was entitled
18         "AN ACT to create a Safe Neighborhoods Law". (A)
19         Article 5 was entitled JUVENILE JUSTICE and amended the
20         Juvenile Court Act of 1987. (B) Article 15 was entitled
21         GANGS and amended various provisions of the Criminal
22         Code of 1961 and the Unified Code of Corrections. (C)
23         Article 20 was entitled ALCOHOL ABUSE and amended
24         various provisions of the Illinois Vehicle Code. (D)
25         Article 25 was entitled DRUG ABUSE and amended the
26         Cannabis Control Act and the Illinois Controlled
27         Substances Act. (E) Article 30 was entitled FIREARMS
28         and amended the Criminal Code of 1961 and the Code of
29         Criminal Procedure of 1963. (F) Article 35 amended the
30         Criminal Code of 1961, the Rights of Crime Victims and
31         Witnesses Act, and the Unified Code of Corrections. (G)
32         Article 40 amended the Criminal Code of 1961 to
33         increase the penalty for compelling organization
34         membership of persons. (H) Article 45 created the
35         Secure Residential Youth Care Facility Licensing Act
36         and amended the State Finance Act, the Juvenile Court

 

 

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1         Act of 1987, the Unified Code of Corrections, and the
2         Private Correctional Facility Moratorium Act. (I)
3         Article 50 amended the WIC Vendor Management Act, the
4         Firearm Owners Identification Card Act, the Juvenile
5         Court Act of 1987, the Criminal Code of 1961, the
6         Wrongs to Children Act, and the Unified Code of
7         Corrections.
8             (iii) On September 22, 1998, the Third District
9         Appellate Court in People v. Dainty, 701 N.E. 2d 118,
10         ruled that Public Act 88-680 violates the single
11         subject clause of the Illinois Constitution (Article
12         IV, Section 8 (d)) and was unconstitutional in its
13         entirety. As of the time this amendatory Act of 1999
14         was prepared, People v. Dainty was still subject to
15         appeal.
16             (iv) Child pornography is a vital concern to the
17         people of this State and the validity of future
18         prosecutions under the child pornography statute of
19         the Criminal Code of 1961 is in grave doubt.
20         (2) It is the purpose of this amendatory Act of 1999 to
21     prevent or minimize any problems relating to prosecutions
22     for child pornography that may result from challenges to
23     the constitutional validity of Public Act 88-680 by
24     re-enacting the Section relating to child pornography that
25     was included in Public Act 88-680.
26         (3) This amendatory Act of 1999 re-enacts Section
27     11-20.1 of the Criminal Code of 1961, as it has been
28     amended. This re-enactment is intended to remove any
29     question as to the validity or content of that Section; it
30     is not intended to supersede any other Public Act that
31     amends the text of the Section as set forth in this
32     amendatory Act of 1999. The material is shown as existing
33     text (i.e., without underscoring) because, as of the time
34     this amendatory Act of 1999 was prepared, People v. Dainty
35     was subject to appeal to the Illinois Supreme Court.
36         (4) The re-enactment by this amendatory Act of 1999 of

 

 

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1     Section 11-20.1 of the Criminal Code of 1961 relating to
2     child pornography that was amended by Public Act 88-680 is
3     not intended, and shall not be construed, to imply that
4     Public Act 88-680 is invalid or to limit or impair any
5     legal argument concerning whether those provisions were
6     substantially re-enacted by other Public Acts.
7 (Source: P.A. 94-366, eff. 7-29-05.)