Illinois General Assembly - Full Text of HB4889
Illinois General Assembly

  Bills & Resolutions  
  Compiled Statutes  
  Public Acts  
  Legislative Reports  
  IL Constitution  
  Legislative Guide  
  Legislative Glossary  

 Search By Number
 (example: HB0001)
Search Tips

Search By Keyword

Full Text of HB4889  103rd General Assembly

HB4889 103RD GENERAL ASSEMBLY

 


 
103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB4889

 

Introduced 2/7/2024, by Rep. Dave Vella

 

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

    Amends the Criminal Code of 2012. Provides that possession of child pornography that does not involve a film, videotape, or other moving depiction is a Class 2 (rather than a Class 3) felony with a mandatory minimum fine of $1,000 and a maximum fine of $100,000. Provides that possession of child pornography that involves a film, videotape, or other moving depiction is a Class 1 (rather than a Class 2) felony with a mandatory minimum fine of $1,000 and a maximum fine of $100,000. Provides that where the child depicted is under the age of 13, the penalty for a first offense of possession of child pornography is a Class 1 (rather than a Class 2) felony with a mandatory minimum fine of $1,000 and a maximum fine of $100,000. Provides that where the child depicted is under 13 years of age, possession of child pornography, where the defendant has previously been convicted under the laws of this State or any other state of the offense of child pornography, aggravated child pornography, aggravated criminal sexual abuse, aggravated criminal sexual assault, predatory criminal sexual assault of a child, or any of the offenses formerly known as rape, deviate sexual assault, indecent liberties with a child, or aggravated indecent liberties with a child where the victim was under the age of 18 years or an offense that is substantially equivalent to those offenses, is guilty of a Class X (rather than a Class 1) felony with a mandatory minimum fine of $1,000 and a maximum fine of $100,000.


LRB103 35581 RLC 65653 b

 

 

A BILL FOR

 

HB4889LRB103 35581 RLC 65653 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

 

 

HB4889- 2 -LRB103 35581 RLC 65653 b

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

 

 

HB4889- 3 -LRB103 35581 RLC 65653 b

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

 

 

HB4889- 4 -LRB103 35581 RLC 65653 b

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

 

 

HB4889- 5 -LRB103 35581 RLC 65653 b

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-5) The possession of each individual film, videotape,
8photograph, or other similar visual reproduction or depiction
9by computer in violation of this Section constitutes a single
10and separate violation. This subsection (a-5) does not apply
11to multiple copies of the same film, videotape, photograph, or
12other similar visual reproduction or depiction by computer
13that are identical to each other.
14    (b)(1) It shall be an affirmative defense to a charge of
15child pornography that the defendant reasonably believed,
16under all of the circumstances, that the child was 18 years of
17age or older or that the person was not a person with a severe
18or profound intellectual disability but only where, prior to
19the act or acts giving rise to a prosecution under this
20Section, he or she took some affirmative action or made a
21bonafide inquiry designed to ascertain whether the child was
2218 years of age or older or that the person was not a person
23with a severe or profound intellectual disability and his or
24her reliance upon the information so obtained was clearly
25reasonable.
26    (1.5) Telecommunications carriers, commercial mobile

 

 

HB4889- 6 -LRB103 35581 RLC 65653 b

1service providers, and providers of information services,
2including, but not limited to, Internet service providers and
3hosting service providers, are not liable under this Section
4by virtue of the transmission, storage, or caching of
5electronic communications or messages of others or by virtue
6of the provision of other related telecommunications,
7commercial mobile services, or information services used by
8others in violation of this Section.
9    (2) (Blank).
10    (3) The charge of child pornography shall not apply to the
11performance of official duties by law enforcement or
12prosecuting officers or persons employed by law enforcement or
13prosecuting agencies, court personnel or attorneys, nor to
14bonafide treatment or professional education programs
15conducted by licensed physicians, psychologists or social
16workers. In any criminal proceeding, any property or material
17that constitutes child pornography shall remain in the care,
18custody, and control of either the State or the court. A motion
19to view the evidence shall comply with subsection (e-5) of
20this Section.
21    (4) If the defendant possessed more than one of the same
22film, videotape or visual reproduction or depiction by
23computer in which child pornography is depicted, then the
24trier of fact may infer that the defendant possessed such
25materials with the intent to disseminate them.
26    (5) The charge of child pornography does not apply to a

 

 

HB4889- 7 -LRB103 35581 RLC 65653 b

1person who does not voluntarily possess a film, videotape, or
2visual reproduction or depiction by computer in which child
3pornography is depicted. Possession is voluntary if the
4defendant knowingly procures or receives a film, videotape, or
5visual reproduction or depiction for a sufficient time to be
6able to terminate his or her possession.
7    (6) Any violation of paragraph (1), (2), (3), (4), (5), or
8(7) of subsection (a) that includes a child engaged in,
9solicited for, depicted in, or posed in any act of sexual
10penetration or bound, fettered, or subject to sadistic,
11masochistic, or sadomasochistic abuse in a sexual context
12shall be deemed a crime of violence.
13    (c) If the violation does not involve a film, videotape,
14or other moving depiction, a violation of paragraph (1), (4),
15(5), or (7) of subsection (a) is a Class 1 felony with a
16mandatory minimum fine of $2,000 and a maximum fine of
17$100,000. If the violation involves a film, videotape, or
18other moving depiction, a violation of paragraph (1), (4),
19(5), or (7) of subsection (a) is a Class X felony with a
20mandatory minimum fine of $2,000 and a maximum fine of
21$100,000. If the violation does not involve a film, videotape,
22or other moving depiction, a violation of paragraph (3) of
23subsection (a) is a Class 1 felony with a mandatory minimum
24fine of $1500 and a maximum fine of $100,000. If the violation
25involves a film, videotape, or other moving depiction, a
26violation of paragraph (3) of subsection (a) is a Class X

 

 

HB4889- 8 -LRB103 35581 RLC 65653 b

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

 

 

HB4889- 9 -LRB103 35581 RLC 65653 b

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

 

 

HB4889- 10 -LRB103 35581 RLC 65653 b

1Class X 1 felony with a mandatory minimum fine of $1,000 and a
2maximum fine of $100,000. The issue of whether the child
3depicted is under the age of 13 is an element of the offense to
4be resolved by the trier of fact.
5    (d) If a person is convicted of a second or subsequent
6violation of this Section within 10 years of a prior
7conviction, the court shall order a presentence psychiatric
8examination of the person. The examiner shall report to the
9court whether treatment of the person is necessary.
10    (e) Any film, videotape, photograph or other similar
11visual reproduction or depiction by computer which includes a
12child under the age of 18 or a person with a severe or profound
13intellectual disability engaged in any activity described in
14subparagraphs (i) through (vii) or paragraph 1 of subsection
15(a), and any material or equipment used or intended for use in
16photographing, filming, printing, producing, reproducing,
17manufacturing, projecting, exhibiting, depiction by computer,
18or disseminating such material shall be seized and forfeited
19in the manner, method and procedure provided by Section 36-1
20of this Code for the seizure and forfeiture of vessels,
21vehicles and aircraft.
22    In addition, any person convicted under this Section is
23subject to the property forfeiture provisions set forth in
24Article 124B of the Code of Criminal Procedure of 1963.
25    (e-5) Upon the conclusion of a case brought under this
26Section, the court shall seal all evidence depicting a victim

 

 

HB4889- 11 -LRB103 35581 RLC 65653 b

1or witness that is sexually explicit. The evidence may be
2unsealed and viewed, on a motion of the party seeking to unseal
3and view the evidence, only for good cause shown and in the
4discretion of the court. The motion must expressly set forth
5the purpose for viewing the material. The State's attorney and
6the victim, if possible, shall be provided reasonable notice
7of the hearing on the motion to unseal the evidence. Any person
8entitled to notice of a hearing under this subsection (e-5)
9may object to the motion.
10    (f) Definitions. For the purposes of this Section:
11        (1) "Disseminate" means (i) to sell, distribute,
12    exchange or transfer possession, whether with or without
13    consideration or (ii) to make a depiction by computer
14    available for distribution or downloading through the
15    facilities of any telecommunications network or through
16    any other means of transferring computer programs or data
17    to a computer.
18        (2) "Produce" means to direct, promote, advertise,
19    publish, manufacture, issue, present or show.
20        (3) "Reproduce" means to make a duplication or copy.
21        (4) "Depict by computer" means to generate or create,
22    or cause to be created or generated, a computer program or
23    data that, after being processed by a computer either
24    alone or in conjunction with one or more computer
25    programs, results in a visual depiction on a computer
26    monitor, screen, or display.

 

 

HB4889- 12 -LRB103 35581 RLC 65653 b

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

 

 

HB4889- 13 -LRB103 35581 RLC 65653 b

1    (g) Re-enactment; findings; purposes.
2        (1) The General Assembly finds and declares that:
3            (i) Section 50-5 of Public Act 88-680, effective
4        January 1, 1995, contained provisions amending the
5        child pornography statute, Section 11-20.1 of the
6        Criminal Code of 1961. Section 50-5 also contained
7        other provisions.
8            (ii) In addition, Public Act 88-680 was entitled
9        "AN ACT to create a Safe Neighborhoods Law". (A)
10        Article 5 was entitled JUVENILE JUSTICE and amended
11        the Juvenile Court Act of 1987. (B) Article 15 was
12        entitled GANGS and amended various provisions of the
13        Criminal Code of 1961 and the Unified Code of
14        Corrections. (C) Article 20 was entitled ALCOHOL ABUSE
15        and amended various provisions of the Illinois Vehicle
16        Code. (D) Article 25 was entitled DRUG ABUSE and
17        amended the Cannabis Control Act and the Illinois
18        Controlled Substances Act. (E) Article 30 was entitled
19        FIREARMS and amended the Criminal Code of 1961 and the
20        Code of Criminal Procedure of 1963. (F) Article 35
21        amended the Criminal Code of 1961, the Rights of Crime
22        Victims and Witnesses Act, and the Unified Code of
23        Corrections. (G) Article 40 amended the Criminal Code
24        of 1961 to increase the penalty for compelling
25        organization membership of persons. (H) Article 45
26        created the Secure Residential Youth Care Facility

 

 

HB4889- 14 -LRB103 35581 RLC 65653 b

1        Licensing Act and amended the State Finance Act, the
2        Juvenile Court Act of 1987, the Unified Code of
3        Corrections, and the Private Correctional Facility
4        Moratorium Act. (I) Article 50 amended the WIC Vendor
5        Management Act, the Firearm Owners Identification Card
6        Act, the Juvenile Court Act of 1987, the Criminal Code
7        of 1961, the Wrongs to Children Act, and the Unified
8        Code of Corrections.
9            (iii) On September 22, 1998, the Third District
10        Appellate Court in People v. Dainty, 701 N.E. 2d 118,
11        ruled that Public Act 88-680 violates the single
12        subject clause of the Illinois Constitution (Article
13        IV, Section 8 (d)) and was unconstitutional in its
14        entirety. As of the time this amendatory Act of 1999
15        was prepared, People v. Dainty was still subject to
16        appeal.
17            (iv) Child pornography is a vital concern to the
18        people of this State and the validity of future
19        prosecutions under the child pornography statute of
20        the Criminal Code of 1961 is in grave doubt.
21        (2) It is the purpose of this amendatory Act of 1999 to
22    prevent or minimize any problems relating to prosecutions
23    for child pornography that may result from challenges to
24    the constitutional validity of Public Act 88-680 by
25    re-enacting the Section relating to child pornography that
26    was included in Public Act 88-680.

 

 

HB4889- 15 -LRB103 35581 RLC 65653 b

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