Full Text of HB4837 103rd General Assembly
HB4837 103RD GENERAL ASSEMBLY | | | 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. |
| |
| | A BILL FOR |
| | | | HB4837 | | LRB103 38161 RLC 68294 b |
|
| 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 2012 is amended by | 5 | | changing 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 |
| | | HB4837 | - 2 - | LRB103 38161 RLC 68294 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 |
| | | HB4837 | - 3 - | LRB103 38161 RLC 68294 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 |
| | | HB4837 | - 4 - | LRB103 38161 RLC 68294 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 |
| | | HB4837 | - 5 - | LRB103 38161 RLC 68294 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-1) For purposes of paragraphs (1) through (7) of | 8 | | subsection (a), depicting a person under 18 years of age | 9 | | personally engaging in or personally simulating any act of | 10 | | sexual penetration or sexual conduct includes a representation | 11 | | of a real or fictitious person through use of artificially | 12 | | intelligent software or computer-generated means, who is, or | 13 | | who a reasonable person would regard as being, a real person | 14 | | under 18 years of age, engaging in or simulating any act of | 15 | | sexual penetration or sexual conduct. | 16 | | (a-5) The possession of each individual film, videotape, | 17 | | photograph, or other similar visual reproduction or depiction | 18 | | by computer in violation of this Section constitutes a single | 19 | | and separate violation. This subsection (a-5) does not apply | 20 | | to multiple copies of the same film, videotape, photograph, or | 21 | | other similar visual reproduction or depiction by computer | 22 | | that are identical to each other. | 23 | | (b)(1) It shall be an affirmative defense to a charge of | 24 | | child pornography that the defendant reasonably believed, | 25 | | under all of the circumstances, that the child was 18 years of | 26 | | age or older or that the person was not a person with a severe |
| | | HB4837 | - 6 - | LRB103 38161 RLC 68294 b |
|
| 1 | | or profound intellectual disability but only where, prior to | 2 | | the act or acts giving rise to a prosecution under this | 3 | | Section, he or she took some affirmative action or made a | 4 | | bonafide inquiry designed to ascertain whether the child was | 5 | | 18 years of age or older or that the person was not a person | 6 | | with a severe or profound intellectual disability and his or | 7 | | her reliance upon the information so obtained was clearly | 8 | | reasonable. | 9 | | (1.5) Telecommunications carriers, commercial mobile | 10 | | service providers, and providers of information services, | 11 | | including, but not limited to, Internet service providers and | 12 | | hosting service providers, are not liable under this Section | 13 | | by virtue of the transmission, storage, or caching of | 14 | | electronic communications or messages of others or by virtue | 15 | | of the provision of other related telecommunications, | 16 | | commercial mobile services, or information services used by | 17 | | others in violation of this Section. | 18 | | (2) (Blank). | 19 | | (3) The charge of child pornography shall not apply to the | 20 | | performance of official duties by law enforcement or | 21 | | prosecuting officers or persons employed by law enforcement or | 22 | | prosecuting agencies, court personnel or attorneys, nor to | 23 | | bonafide treatment or professional education programs | 24 | | conducted by licensed physicians, psychologists or social | 25 | | workers. In any criminal proceeding, any property or material | 26 | | that constitutes child pornography shall remain in the care, |
| | | HB4837 | - 7 - | LRB103 38161 RLC 68294 b |
|
| 1 | | custody, and control of either the State or the court. A motion | 2 | | to view the evidence shall comply with subsection (e-5) of | 3 | | this Section. | 4 | | (4) If the defendant possessed more than one of the same | 5 | | film, videotape or visual reproduction or depiction by | 6 | | computer in which child pornography is depicted, then the | 7 | | trier of fact may infer that the defendant possessed such | 8 | | materials with the intent to disseminate them. | 9 | | (5) The charge of child pornography does not apply to a | 10 | | person who does not voluntarily possess a film, videotape, or | 11 | | visual reproduction or depiction by computer in which child | 12 | | pornography is depicted. Possession is voluntary if the | 13 | | defendant knowingly procures or receives a film, videotape, or | 14 | | visual reproduction or depiction for a sufficient time to be | 15 | | able 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, | 18 | | solicited for, depicted in, or posed in any act of sexual | 19 | | penetration or bound, fettered, or subject to sadistic, | 20 | | masochistic, or sadomasochistic abuse in a sexual context | 21 | | shall be deemed a crime of violence. | 22 | | (c) If the violation does not involve a film, videotape, | 23 | | or other moving depiction, a violation of paragraph (1), (4), | 24 | | (5), or (7) of subsection (a) is a Class 1 felony with a | 25 | | mandatory minimum fine of $2,000 and a maximum fine of | 26 | | $100,000. If the violation involves a film, videotape, or |
| | | HB4837 | - 8 - | LRB103 38161 RLC 68294 b |
|
| 1 | | other moving depiction, a violation of paragraph (1), (4), | 2 | | (5), or (7) of subsection (a) is a Class X felony with a | 3 | | mandatory minimum fine of $2,000 and a maximum fine of | 4 | | $100,000. If the violation does not involve a film, videotape, | 5 | | or other moving depiction, a violation of paragraph (3) of | 6 | | subsection (a) is a Class 1 felony with a mandatory minimum | 7 | | fine of $1500 and a maximum fine of $100,000. If the violation | 8 | | involves a film, videotape, or other moving depiction, a | 9 | | violation of paragraph (3) of subsection (a) is a Class X | 10 | | felony with a mandatory minimum fine of $1500 and a maximum | 11 | | fine of $100,000. If the violation does not involve a film, | 12 | | videotape, or other moving depiction, a violation of paragraph | 13 | | (2) of subsection (a) is a Class 1 felony with a mandatory | 14 | | minimum fine of $1000 and a maximum fine of $100,000. If the | 15 | | violation involves a film, videotape, or other moving | 16 | | depiction, a violation of paragraph (2) of subsection (a) is a | 17 | | Class X felony with a mandatory minimum fine of $1000 and a | 18 | | maximum fine of $100,000. If the violation does not involve a | 19 | | film, videotape, or other moving depiction, a violation of | 20 | | paragraph (6) of subsection (a) is a Class 3 felony with a | 21 | | mandatory minimum fine of $1000 and a maximum fine of | 22 | | $100,000. If the violation involves a film, videotape, or | 23 | | other moving depiction, a violation of paragraph (6) of | 24 | | subsection (a) is a Class 2 felony with a mandatory minimum | 25 | | fine of $1000 and a maximum fine of $100,000. | 26 | | (c-5) Where the child depicted is under the age of 13, a |
| | | HB4837 | - 9 - | LRB103 38161 RLC 68294 b |
|
| 1 | | violation of paragraph (1), (2), (3), (4), (5), or (7) of | 2 | | subsection (a) is a Class X felony with a mandatory minimum | 3 | | fine of $2,000 and a maximum fine of $100,000. Where the child | 4 | | depicted is under the age of 13, a violation of paragraph (6) | 5 | | of subsection (a) is a Class 2 felony with a mandatory minimum | 6 | | fine of $1,000 and a maximum fine of $100,000. Where the child | 7 | | depicted is under the age of 13, a person who commits a | 8 | | violation of paragraph (1), (2), (3), (4), (5), or (7) of | 9 | | subsection (a) where the defendant has previously been | 10 | | convicted under the laws of this State or any other state of | 11 | | the offense of child pornography, aggravated child | 12 | | pornography, aggravated criminal sexual abuse, aggravated | 13 | | criminal sexual assault, predatory criminal sexual assault of | 14 | | a child, or any of the offenses formerly known as rape, deviate | 15 | | sexual assault, indecent liberties with a child, or aggravated | 16 | | indecent liberties with a child where the victim was under the | 17 | | age of 18 years or an offense that is substantially equivalent | 18 | | to those offenses, is guilty of a Class X felony for which the | 19 | | person shall be sentenced to a term of imprisonment of not less | 20 | | than 9 years with a mandatory minimum fine of $2,000 and a | 21 | | maximum fine of $100,000. Where the child depicted is under | 22 | | the age of 13, a person who commits a violation of paragraph | 23 | | (6) of subsection (a) where the defendant has previously been | 24 | | convicted under the laws of this State or any other state of | 25 | | the offense of child pornography, aggravated child | 26 | | pornography, aggravated criminal sexual abuse, aggravated |
| | | HB4837 | - 10 - | LRB103 38161 RLC 68294 b |
|
| 1 | | criminal sexual assault, predatory criminal sexual assault of | 2 | | a child, or any of the offenses formerly known as rape, deviate | 3 | | sexual assault, indecent liberties with a child, or aggravated | 4 | | indecent liberties with a child where the victim was under the | 5 | | age of 18 years or an offense that is substantially equivalent | 6 | | to those offenses, is guilty of a Class 1 felony with a | 7 | | mandatory minimum fine of $1,000 and a maximum fine of | 8 | | $100,000. The issue of whether the child depicted is under the | 9 | | age of 13 is an element of the offense to be resolved by the | 10 | | trier of fact. | 11 | | (d) If a person is convicted of a second or subsequent | 12 | | violation of this Section within 10 years of a prior | 13 | | conviction, the court shall order a presentence psychiatric | 14 | | examination of the person. The examiner shall report to the | 15 | | court whether treatment of the person is necessary. | 16 | | (e) Any film, videotape, photograph or other similar | 17 | | visual reproduction or depiction by computer which includes a | 18 | | child under the age of 18 or a person with a severe or profound | 19 | | intellectual disability engaged in any activity described in | 20 | | subparagraphs (i) through (vii) or paragraph 1 of subsection | 21 | | (a), and any material or equipment used or intended for use in | 22 | | photographing, filming, printing, producing, reproducing, | 23 | | manufacturing, projecting, exhibiting, depiction by computer, | 24 | | or disseminating such material shall be seized and forfeited | 25 | | in the manner, method and procedure provided by Section 36-1 | 26 | | of this Code for the seizure and forfeiture of vessels, |
| | | HB4837 | - 11 - | LRB103 38161 RLC 68294 b |
|
| 1 | | vehicles and aircraft. | 2 | | In addition, any person convicted under this Section is | 3 | | subject to the property forfeiture provisions set forth in | 4 | | Article 124B of the Code of Criminal Procedure of 1963. | 5 | | (e-5) Upon the conclusion of a case brought under this | 6 | | Section, the court shall seal all evidence depicting a victim | 7 | | or witness that is sexually explicit. The evidence may be | 8 | | unsealed and viewed, on a motion of the party seeking to unseal | 9 | | and view the evidence, only for good cause shown and in the | 10 | | discretion of the court. The motion must expressly set forth | 11 | | the purpose for viewing the material. The State's attorney and | 12 | | the victim, if possible, shall be provided reasonable notice | 13 | | of the hearing on the motion to unseal the evidence. Any person | 14 | | entitled to notice of a hearing under this subsection (e-5) | 15 | | may 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. |
| | | HB4837 | - 12 - | LRB103 38161 RLC 68294 b |
|
| 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 |
| | | HB4837 | - 13 - | LRB103 38161 RLC 68294 b |
|
| 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 |
| | | HB4837 | - 14 - | LRB103 38161 RLC 68294 b |
|
| 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. |
| | | HB4837 | - 15 - | LRB103 38161 RLC 68294 b |
|
| 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 .) |
|