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90_HB0472ham001
LRB9002449RCksam
1 AMENDMENT TO HOUSE BILL 472
2 AMENDMENT NO. . Amend House Bill 472, on page 1, by
3 replacing lines 1 and 2 with the following:
4 "AN ACT in relation to child pornography."; and
5 on page 1, by inserting between lines 4 and 5 the following:
6 "Section 2. The Criminal Code of 1961 is amended by
7 changing Section 11-20.1 as follows:
8 (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
9 Sec. 11-20.1. Child pornography.
10 (a) A person commits the offense of child pornography
11 who:
12 (1) films, videotapes, photographs, or otherwise
13 depicts or portrays by means of any similar visual medium
14 or reproduction or depicts by computer any child whom he
15 knows or reasonably should know to be under the age of 18
16 or any institutionalized severely or profoundly mentally
17 retarded person where such child or institutionalized
18 severely or profoundly mentally retarded person is:
19 (i) actually or by simulation engaged in any
20 act of sexual intercourse with any person or animal;
21 or
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1 (ii) actually or by simulation engaged in any
2 act of sexual contact involving the sex organs of
3 the child or institutionalized severely or
4 profoundly mentally retarded person and the mouth,
5 anus, or sex organs of another person or animal; or
6 which involves the mouth, anus or sex organs of the
7 child or institutionalized severely or profoundly
8 mentally retarded person and the sex organs of
9 another person or animal; or
10 (iii) actually or by simulation engaged in any
11 act of masturbation; or
12 (iv) actually or by simulation portrayed as
13 being the object of, or otherwise engaged in, any
14 act of lewd fondling, touching, or caressing
15 involving another person or animal; or
16 (v) actually or by simulation engaged in any
17 act of excretion or urination within a sexual
18 context; or
19 (vi) actually or by simulation portrayed or
20 depicted as bound, fettered, or subject to sadistic,
21 masochistic, or sadomasochistic abuse in any sexual
22 context; or
23 (vii) depicted or portrayed in any pose,
24 posture or setting involving a lewd exhibition of
25 the unclothed genitals, pubic area, buttocks, or, if
26 such person is female, a fully or partially
27 developed breast of the child or other person; or
28 (2) with the knowledge of the nature or content
29 thereof, reproduces, disseminates, offers to disseminate,
30 exhibits or possesses with intent to disseminate any
31 film, videotape, photograph or other similar visual
32 reproduction or depiction by computer of any child or
33 institutionalized severely or profoundly mentally
34 retarded person whom the person knows or reasonably
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1 should know to be under the age of 18 or to be an
2 institutionalized severely or profoundly mentally
3 retarded person, engaged in any activity described in
4 subparagraphs (i) through (vii) of paragraph (1) of this
5 subsection; or
6 (3) with knowledge of the subject matter or theme
7 thereof, produces any stage play, live performance, film,
8 videotape or other similar visual portrayal or depiction
9 by computer which includes a child whom the person knows
10 or reasonably should know to be under the age of 18 or an
11 institutionalized severely or profoundly mentally
12 retarded person engaged in any activity described in
13 subparagraphs (i) through (vii) of paragraph (1) of this
14 subsection; or
15 (4) solicits, uses, persuades, induces, entices, or
16 coerces any child whom he knows or reasonably should know
17 to be under the age of 18 or an institutionalized
18 severely or profoundly mentally retarded person to appear
19 in any stage play, live presentation, film, videotape,
20 photograph or other similar visual reproduction or
21 depiction by computer in which the child or
22 institutionalized severely or profoundly mentally
23 retarded person is or will be depicted, actually or by
24 simulation, in any act, pose or setting described in
25 subparagraphs (i) through (vii) of paragraph (1) of this
26 subsection; or
27 (5) is a parent, step-parent, legal guardian or
28 other person having care or custody of a child whom the
29 person knows or reasonably should know to be under the
30 age of 18 or an institutionalized severely or profoundly
31 mentally retarded person and who knowingly permits,
32 induces, promotes, or arranges for such child or
33 institutionalized severely or profoundly mentally
34 retarded person to appear in any stage play, live
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1 performance, film, videotape, photograph or other similar
2 visual presentation, portrayal or simulation or depiction
3 by computer of any act or activity described in
4 subparagraphs (i) through (vii) of paragraph (1) of this
5 subsection; or
6 (6) with knowledge of the nature or content
7 thereof, possesses any film, videotape, photograph or
8 other similar visual reproduction or depiction by
9 computer of any child or institutionalized severely or
10 profoundly mentally retarded person whom the person knows
11 or reasonably should know to be under the age of 18 or to
12 be an institutionalized severely or profoundly mentally
13 retarded person, engaged in any activity described in
14 subparagraphs (i) through (vii) of paragraph (1) of this
15 subsection; or
16 (7) solicits, uses, persuades, induces, entices, or
17 coerces a person to provide a child under the age of 18
18 or an institutionalized severely or profoundly mentally
19 retarded person to appear in any videotape, photograph,
20 film, stage play, live presentation, or other similar
21 visual reproduction or depiction by computer in which the
22 child or an institutionalized severely or profoundly
23 mentally retarded person will be depicted, actually or by
24 simulation, in any act, pose, or setting described in
25 subparagraphs (i) through (vii) of paragraph (1) of this
26 subsection.
27 (b) (1) It shall be an affirmative defense to a charge
28 of child pornography that the defendant reasonably believed,
29 under all of the circumstances, that the child was 18 years
30 of age or older or that the person was not an
31 institutionalized severely or profoundly mentally retarded
32 person but only where, prior to the act or acts giving rise
33 to a prosecution under this Section, he took some affirmative
34 action or made a bonafide inquiry designed to ascertain
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1 whether the child was 18 years of age or older or that the
2 person was not an institutionalized severely or profoundly
3 mentally retarded person and his reliance upon the
4 information so obtained was clearly reasonable.
5 (2) It shall be an affirmative defense to a charge of
6 child pornography that the defendant was employed by a public
7 library or any library operated by an institution accredited
8 by a generally recognized accrediting agency, at the time the
9 act leading to the charge of child pornography took place and
10 such act was committed during the course of employment.
11 (3) The charge of child pornography shall not apply to
12 the performance of official duties by law enforcement or
13 prosecuting officers, court personnel or attorneys, nor to
14 bonafide treatment or professional education programs
15 conducted by licensed physicians, psychologists or social
16 workers.
17 (4) Possession by the defendant of more than one of the
18 same film, videotape or visual reproduction or depiction by
19 computer in which child pornography is depicted shall raise a
20 rebuttable presumption that the defendant possessed such
21 materials with the intent to disseminate them.
22 (c) Violation of paragraph (1), (4), (5), or (7) of
23 subsection (a) is a Class 1 felony with a mandatory minimum
24 fine of $2,000 and a maximum fine of $100,000. Violation of
25 paragraph (3) of subsection (a) is a Class 1 2 felony with a
26 mandatory minimum fine of $1500 and a maximum fine of
27 $100,000. Violation of paragraph (2) of subsection (a) is a
28 Class 1 3 felony with a mandatory minimum fine of $1000 and a
29 maximum fine of $100,000. Violation of paragraph (6) of
30 subsection (a) is a Class 3 4 felony with a mandatory minimum
31 fine of $1000 and a maximum fine of $100,000.
32 (d) If a person is convicted of a second or subsequent
33 violation of this Section within 10 years of a prior
34 conviction, the court shall order a presentence psychiatric
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1 examination of the person. The examiner shall report to the
2 court whether treatment of the person is necessary.
3 (e) Any film, videotape, photograph or other similar
4 visual reproduction or depiction by computer which includes a
5 child under the age of 18 or an institutionalized severely or
6 profoundly mentally retarded person engaged in any activity
7 described in subparagraphs (i) through (vii) or paragraph 1
8 of subsection (a), and any material or equipment used or
9 intended for use in photographing, filming, printing,
10 producing, reproducing, manufacturing, projecting,
11 exhibiting, depiction by computer, or disseminating such
12 material shall be seized and forfeited in the manner, method
13 and procedure provided by Section 36-1 of this Code for the
14 seizure and forfeiture of vessels, vehicles and aircraft.
15 (f) Definitions. For the purposes of this Section:
16 (1) "Disseminate" means (i) to sell, distribute,
17 exchange or transfer possession, whether with or without
18 consideration or (ii) to make a depiction by computer
19 available for distribution or downloading through the
20 facilities of any telecommunications network or through
21 any other means of transferring computer programs or data
22 to a computer;
23 (2) "Produce" means to direct, promote, advertise,
24 publish, manufacture, issue, present or show;
25 (3) "Reproduce" means to make a duplication or
26 copy;
27 (4) "Depict by computer" means to generate or
28 create, or cause to be created or generated, a computer
29 program or data that, after being processed by a computer
30 either alone or in conjunction with one or more computer
31 programs, results in a visual depiction on a computer
32 monitor, screen, or display.
33 (5) "Depiction by computer" means a computer
34 program or data that, after being processed by a computer
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1 either alone or in conjunction with one or more computer
2 programs, results in a visual depiction on a computer
3 monitor, screen, or display.
4 (6) "Computer", "computer program", and "data" have
5 the meanings ascribed to them in Section 16D-2 of this
6 Code.
7 (Source: P.A. 87-1069; 87-1070; 88-45; 88-680, eff.
8 1-1-95.)"; and
9 on page 4, line 27, by inserting "(2), (3)," after "(1),";
10 and
11 on page 17, line 1, by inserting "(2), (3)," after "(1),".