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90_SB0009eng
720 ILCS 5/12-7.1 from Ch. 38, par. 12-7.1
720 ILCS 135/Act title
720 ILCS 135/0.01 from Ch. 134, par. 16.3h
720 ILCS 135/1-2 new
720 ILCS 135/1-3 new
720 ILCS 135/1-4 new
720 ILCS 135/2 from Ch. 134, par. 16.5
720 ILCS 135/3 new
Amends the Obscene Phone Call Act. Changes short title
to the Harassing and Obscene Communications Act. Creates the
offense of harassment through electronic communications.
Provides that the court may order a person convicted under
the Act to submit to psychiatric examination. Requires the
court to impose a minimum of 14 days in jail or 240 hours of
public service employment upon an offender who commits a
second or third violation. Provides that certain violations
are Class 4 felonies. Provides for the seizure and
forfeiture of telephonic or electronic communications
equipment used in the commission of an offense prohibited by
the Act. Amends the Criminal Code of 1961 to change a cross
reference from the Obscene Phone Call Act to the Harassing
and Obscene Communications Act.
LRB9000805RCcd
SB9 Engrossed LRB9000805RCcd
1 AN ACT in relation to harassing and obscene
2 communications.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Criminal Code of 1961 is amended by
6 changing Section 12-7.1 as follows:
7 (720 ILCS 5/12-7.1) (from Ch. 38, par. 12-7.1)
8 Sec. 12-7.1. Hate crime.
9 (a) A person commits hate crime when, by reason of the
10 actual or perceived race, color, creed, religion, ancestry,
11 gender, sexual orientation, physical or mental disability, or
12 national origin of another individual or group of
13 individuals, he commits assault, battery, aggravated assault,
14 misdemeanor theft, criminal trespass to residence,
15 misdemeanor criminal damage to property, criminal trespass to
16 vehicle, criminal trespass to real property, mob action or
17 disorderly conduct as these crimes are defined in Sections
18 12-1, 12-2, 12-3, 16-1, 19-4, 21-1, 21-2, 21-3, 25-1, and
19 26-1 of this Code, respectively, or harassment by telephone
20 as defined in Section 1-1 of the Harassing and Obscene
21 Communications Phone Call Act against a victim who is: (i)
22 the other individual; (ii) a member of the group of
23 individuals; (iii) a person who has an association with, is
24 married to, or has a friendship with the other individual or
25 a member of the group of individuals; or (iv) a relative (by
26 blood or marriage) of a person described in clause (i), (ii),
27 or (iii).
28 (b) Hate crime is a Class 4 felony for a first offense
29 and a Class 2 felony for a second or subsequent offense. Any
30 order of probation or conditional discharge entered following
31 a conviction for an offense under this Section shall include,
SB9 Engrossed -2- LRB9000805RCcd
1 a condition that the offender perform public or community
2 service of no less than 200 hours if that service is
3 established in the county where the offender was convicted of
4 hate crime. In addition the court may impose any other
5 condition of probation or conditional discharge under this
6 Section.
7 (c) Independent of any criminal prosecution or the
8 result thereof, any person suffering injury to his person or
9 damage to his property as a result of hate crime may bring a
10 civil action for damages, injunction or other appropriate
11 relief. The court may award actual damages, including damages
12 for emotional distress, or punitive damages. A judgment may
13 include attorney's fees and costs. The parents or legal
14 guardians, other than guardians appointed pursuant to the
15 Juvenile Court Act or the Juvenile Court Act of 1987, of an
16 unemancipated minor shall be liable for the amount of any
17 judgment for actual damages rendered against such minor under
18 this subsection (c) in any amount not exceeding the amount
19 provided under Section 5 of the Parental Responsibility Law.
20 (d) "Sexual orientation" means heterosexuality,
21 homosexuality, or bisexuality.
22 (Source: P.A. 88-45; 88-259; 88-659; 89-689, eff. 12-31-96.)
23 Section 10. The Obscene Phone Call Act is amended by
24 changing the title of the Act and Sections 0.01 and 2 and
25 adding Sections 1-2, 1-3, 1-4, and 3 as follows:
26 (720 ILCS 135/Act title)
27 An Act to prohibit the use of telephone and telegraph
28 lines for the sending of certain messages, to prevent
29 harassment by the use of telephone communications and
30 electronic communications, and to provide a penalty for
31 violation of the Act.
SB9 Engrossed -3- LRB9000805RCcd
1 (720 ILCS 135/0.01) (from Ch. 134, par. 16.3h)
2 Sec. 0.01. Short title. This Act may be cited as the
3 Harassing and Obscene Communications Phone Call Act.
4 (Source: P.A. 86-1324.)
5 (720 ILCS 135/1-2 new)
6 Sec. 1-2. Harassment through electronic communications.
7 (a) Harassment through electronic communications is the
8 use of electronic communication for any of the following
9 purposes:
10 (1) Making any comment, request, suggestion or
11 proposal which is obscene with an intent to offend;
12 (2) Interrupting, with the intent to harass, the
13 telephone service or the electronic communication service
14 of any person;
15 (3) Transmitting to any person, with the intent to
16 harass and regardless of whether the communication is
17 read in its entirety or at all, any file, document, or
18 other communication which prevents that person from using
19 his or her telephone service or electronic communications
20 device;
21 (4) Threatening injury to the person or to the
22 property of the person to whom an electronic
23 communication is directed or to any of his or her family
24 or household members; or
25 (5) Knowingly permitting any electronic
26 communications device to be used for any of the purposes
27 mentioned in this subsection (a).
28 (b) As used in this Act:
29 (1) "Electronic communication" means any transfer
30 of signs, signals, writings, images, sounds, data or
31 intelligence of any nature transmitted in whole or in
32 part by a wire, radio, electromagnetic, photoelectric or
33 photo-optical system.
SB9 Engrossed -4- LRB9000805RCcd
1 (2) "Family or household member" includes spouses,
2 former spouses, parents, children, stepchildren and other
3 persons related by blood or by present or prior marriage,
4 persons who share or formerly shared a common dwelling,
5 persons who have or allegedly share a blood relationship
6 through a child, persons who have or have had a dating or
7 engagement relationship, and persons with disabilities
8 and their personal assistants. For purposes of this Act,
9 neither a casual acquaintanceship nor ordinary
10 fraternization between 2 individuals in business or
11 social contexts shall be deemed to constitute a dating
12 relationship.
13 (720 ILCS 135/1-3 new)
14 Sec. 1-3. Rebuttable presumption. Evidence that a
15 defendant made additional telephone calls or engaged in
16 additional electronic communications after having been
17 requested by a named complainant or by a family or household
18 member of the complainant to stop shall give rise to a
19 rebuttable presumption that the defendant made the subsequent
20 telephone call or electronic communication with the intent to
21 harass.
22 (720 ILCS 135/1-4 new)
23 Sec. 1-4. Psychiatric examination. The court may order
24 any person convicted under this Act to submit to a
25 psychiatric examination.
26 (720 ILCS 135/2) (from Ch. 134, par. 16.5)
27 Sec. 2. Sentence. A person who violates any of the
28 provisions of Section 1, or 1-1, or 1-2 of this Act is guilty
29 of a Class B misdemeanor. A second or third violation of
30 Section 1, or 1-1, or 1-2 of this Act is a Class A
31 misdemeanor. Upon a second or third violation of Section 1,
SB9 Engrossed -5- LRB9000805RCcd
1 1-1 or 1-2, the court shall impose a minimum of 14 days in
2 jail or 240 hours of public service employment. In any of
3 the following circumstances, a person who violates Section 1,
4 1-1, or 1-2 of this Act shall be guilty of A fourth or
5 subsequent violation of Section 1 or 1-1 of this Act is a
6 Class 4 felony:.
7 (a) The person has 3 or more violations in the last 10
8 years of harassment by telephone under Section 1-1 of this
9 Act, harassment through electronic communications under
10 Section 1-2 of this Act, or any similar offense of any state;
11 (b) The person has previously violated the harassment by
12 telephone provisions of Section 1-1 of this Act or the
13 harassment through electronic communications provisions of
14 Section 1-2 of this Act or committed any similar offense in
15 any state with the same victim or a member of the victim's
16 family or household;
17 (c) At the time of the offense, the offender was under
18 conditions of bail, probation, mandatory supervised release
19 or was the subject of an order of protection, in this or any
20 other state, prohibiting contact with the victim or any
21 member of the victim's family or household;
22 (d) In the course of the offense, the offender
23 threatened to kill the victim or any member of the victim's
24 family or household; or
25 (e) The person has been convicted in the last 10 years
26 of a forcible felony as defined in Section 2-8 of the
27 Criminal Code of 1961.
28 (Source: P.A. 89-547, eff. 1-1-97.)
29 (720 ILCS 135/3 new)
30 Sec. 3. Seizure and forfeiture of electronic
31 communications equipment. Any telephonic or electronic
32 communications equipment used in the commission of an offense
33 prohibited by Section 1-1 or 1-2 of this Act may be seized
SB9 Engrossed -6- LRB9000805RCcd
1 and delivered forthwith to the sheriff of the county of
2 seizure. Upon the seizure of any property as provided in
3 this Section, the State's Attorney in the county in which the
4 seizure occurs shall forthwith bring an action for forfeiture
5 in the circuit court within whose jurisdiction the seizure
6 and confiscation has taken place.
7 The State's Attorney shall give notice of the forfeiture
8 proceeding by mailing a copy of the complaint in the
9 forfeiture proceeding to the person who illegally used the
10 property and to the owner and person in possession of the
11 property. The owner of the seized property may, within 20
12 days after the mailing of the notice, file a verified answer
13 to the complaint and may appear at the hearing on the action
14 for forfeiture. The State shall show at the hearing, by a
15 preponderance of the evidence, that the equipment was used in
16 commission of an offense described in Section 1-1 or 1-2 of
17 this Act. The owner of the equipment may show by a
18 preponderance of the evidence that he or she did not know,
19 and did not have reason to know, that the equipment was to be
20 used in the commission of such an offense. Unless the State
21 makes such a showing, the court shall order the equipment
22 released to the owner.
23 When the State has made such a showing, the court may
24 order the equipment destroyed; may order it delivered to any
25 local, municipal or county law enforcement agency; or may
26 order it sold at public auction. The proceeds of any sale at
27 public auction, after deduction for reasonable charges and
28 expenses incurred by the sheriff in storing and selling the
29 equipment, shall be paid into the general fund of the county
30 of seizure.