State of Illinois
92nd General Assembly
Legislation

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92_SB2032

 
                                               LRB9215857RCcd

 1        AN ACT in relation to 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
 5    changing Sections 11-20-1 and 33D-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
 9    who:
10             (1)  films, videotapes,  photographs,  or  otherwise
11        depicts or portrays by means of any similar visual medium
12        or  reproduction or depicts by computer any child whom he
13        knows or reasonably should know to be under the age of 18
14        or any severely or profoundly  mentally  retarded  person
15        where  such  child  or  severely  or  profoundly mentally
16        retarded person is:
17                  (i)  actually or by simulation engaged  in  any
18             act   of   sexual   penetration  or  sexual  conduct
19             intercourse with any person or animal; or
20                  (ii)  actually or by simulation engaged in  any
21             act  of sexual penetration or sexual conduct contact
22             involving the sex organs of the child or severely or
23             profoundly mentally retarded person and  the  mouth,
24             anus,  or sex organs of another person or animal; or
25             which involves the mouth, anus or sex organs of  the
26             child  or  severely  or profoundly mentally retarded
27             person and the  sex  organs  of  another  person  or
28             animal; or
29                  (iii)  actually or by simulation engaged in any
30             act of masturbation; or
31                  (iv)  actually  or  by  simulation portrayed as
 
                            -2-                LRB9215857RCcd
 1             being the object of, or otherwise  engaged  in,  any
 2             act   of   lewd  fondling,  touching,  or  caressing
 3             involving another person or animal; or
 4                  (v)  actually or by simulation engaged  in  any
 5             act  of  excretion  or  urination  within  a  sexual
 6             context; or
 7                  (vi)  actually  or  by  simulation portrayed or
 8             depicted as bound, fettered, or subject to sadistic,
 9             masochistic, or sadomasochistic abuse in any  sexual
10             context; or
11                  (vii)  depicted   or  portrayed  in  any  pose,
12             posture or setting involving a  lewd  exhibition  of
13             the unclothed genitals, pubic area, buttocks, or, if
14             such   person   is  female,  a  fully  or  partially
15             developed breast of the child or other person; or
16             (2)  with the knowledge of  the  nature  or  content
17        thereof, reproduces, disseminates, offers to disseminate,
18        exhibits  or  possesses  with  intent  to disseminate any
19        film,  videotape,  photograph  or  other  similar  visual
20        reproduction or depiction by computer  of  any  child  or
21        severely  or profoundly mentally retarded person whom the
22        person knows or reasonably should know to  be  under  the
23        age  of  18  or  to  be a severely or profoundly mentally
24        retarded person, engaged in  any  activity  described  in
25        subparagraphs  (i) through (vii) of paragraph (1) of this
26        subsection; or
27             (3)  with knowledge of the subject matter  or  theme
28        thereof, produces any stage play, live performance, film,
29        videotape  or other similar visual portrayal or depiction
30        by computer which includes a child whom the person  knows
31        or  reasonably should know to be under the age of 18 or a
32        severely or profoundly mentally retarded  person  engaged
33        in  any  activity  described in subparagraphs (i) through
34        (vii) of paragraph (1) of this subsection; or
 
                            -3-                LRB9215857RCcd
 1             (4)  solicits, uses, persuades, induces, entices, or
 2        coerces any child whom he knows or reasonably should know
 3        to be under the age of 18 or  a  severely  or  profoundly
 4        mentally  retarded  person  to  appear in any stage play,
 5        live presentation, film, videotape, photograph  or  other
 6        similar  visual  reproduction or depiction by computer in
 7        which  the  child  or  severely  or  profoundly  mentally
 8        retarded person is or will be depicted,  actually  or  by
 9        simulation,  in  any  act,  pose  or setting described in
10        subparagraphs (i) through (vii) of paragraph (1) of  this
11        subsection; or
12             (5)  is  a  parent,  step-parent,  legal guardian or
13        other person having care or custody of a child  whom  the
14        person  knows  or  reasonably should know to be under the
15        age of 18 or a severely or profoundly  mentally  retarded
16        person  and  who knowingly permits, induces, promotes, or
17        arranges  for  such  child  or  severely  or   profoundly
18        mentally  retarded  person  to  appear in any stage play,
19        live performance, film, videotape,  photograph  or  other
20        similar  visual  presentation, portrayal or simulation or
21        depiction by computer of any act or activity described in
22        subparagraphs (i) through (vii) of paragraph (1) of  this
23        subsection; or
24             (6)  with   knowledge   of  the  nature  or  content
25        thereof, possesses any  film,  videotape,  photograph  or
26        other   similar   visual  reproduction  or  depiction  by
27        computer of any child or severely or profoundly  mentally
28        retarded  person  whom  the  person  knows  or reasonably
29        should know to be under the age of 18 or to be a severely
30        or profoundly mentally retarded person,  engaged  in  any
31        activity  described in subparagraphs (i) through (vii) of
32        paragraph (1) of this subsection; or
33             (7)  solicits, uses, persuades, induces, entices, or
34        coerces a person to provide a child under the age  of  18
 
                            -4-                LRB9215857RCcd
 1        or  a  severely or profoundly mentally retarded person to
 2        appear in any videotape, photograph,  film,  stage  play,
 3        live  presentation,  or other similar visual reproduction
 4        or depiction by computer in which the child  or  severely
 5        or  profoundly mentally retarded person will be depicted,
 6        actually or by simulation, in any act, pose,  or  setting
 7        described in subparagraphs (i) through (vii) of paragraph
 8        (1) of this subsection.
 9        (b) (1)  It  shall  be an affirmative defense to a charge
10    of child pornography that the defendant reasonably  believed,
11    under  all  of the circumstances, that the child was 18 years
12    of age or older or that the person  was  not  a  severely  or
13    profoundly  mentally retarded person but only where, prior to
14    the act or acts giving  rise  to  a  prosecution  under  this
15    Section,  he  took some affirmative action or made a bonafide
16    inquiry designed to ascertain whether the child was 18  years
17    of  age  or  older  or  that the person was not a severely or
18    profoundly mentally retarded person and his reliance upon the
19    information so obtained was clearly reasonable.
20             (2)  (Blank).
21             (3)  The charge of child pornography shall not apply
22        to the performance of official duties by law  enforcement
23        or  prosecuting  officers,  court personnel or attorneys,
24        nor  to  bonafide  treatment  or  professional  education
25        programs conducted by licensed physicians,  psychologists
26        or social workers.
27             (4)  Possession by the defendant of more than one of
28        the  same  film,  videotape  or  visual  reproduction  or
29        depiction  by  computer  in  which  child  pornography is
30        depicted shall raise a rebuttable  presumption  that  the
31        defendant  possessed  such  materials  with the intent to
32        disseminate them.
33             (5)  The charge of child pornography does not  apply
34        to  a  person  who  does  not voluntarily possess a film,
 
                            -5-                LRB9215857RCcd
 1        videotape,  or  visual  reproduction  or   depiction   by
 2        computer   in   which   child  pornography  is  depicted.
 3        Possession  is  voluntary  if  the  defendant   knowingly
 4        procures   or  receives  a  film,  videotape,  or  visual
 5        reproduction or depiction for a  sufficient  time  to  be
 6        able to terminate his or her possession.
 7        (c)  Violation  of  paragraph  (1),  (4),  (5), or (7) of
 8    subsection (a) is a Class 1 felony with a  mandatory  minimum
 9    fine  of $2,000 and a maximum fine of $100,000.  Violation of
10    paragraph (3) of subsection (a) is a Class 1  felony  with  a
11    mandatory  minimum  fine  of  $1500  and  a  maximum  fine of
12    $100,000.  Violation of paragraph (2) of subsection (a) is  a
13    Class  1  felony with a mandatory minimum fine of $1000 and a
14    maximum fine of  $100,000.  Violation  of  paragraph  (6)  of
15    subsection  (a)  is a Class 3 felony with a mandatory minimum
16    fine of $1000 and a maximum fine of $100,000.
17        (d)  If a person is convicted of a second  or  subsequent
18    violation  of  this  Section  within  10  years  of  a  prior
19    conviction,  the  court shall order a presentence psychiatric
20    examination of the person.  The examiner shall report to  the
21    court whether treatment of the person is necessary.
22        (e)  Any  film,  videotape,  photograph  or other similar
23    visual reproduction or depiction by computer which includes a
24    child under the  age  of  18  or  a  severely  or  profoundly
25    mentally retarded person engaged in any activity described in
26    subparagraphs  (i) through (vii) or paragraph 1 of subsection
27    (a), and any material or equipment used or intended  for  use
28    in  photographing, filming, printing, producing, reproducing,
29    manufacturing, projecting, exhibiting, depiction by computer,
30    or disseminating such material shall be seized and  forfeited
31    in  the manner, method and procedure provided by Section 36-1
32    of this Code for  the  seizure  and  forfeiture  of  vessels,
33    vehicles and aircraft.
34        (e-5)  Upon  the  conclusion of a case brought under this
 
                            -6-                LRB9215857RCcd
 1    Section, the court shall seal all evidence depicting a victim
 2    or witness that is sexually explicit.  The  evidence  may  be
 3    unsealed  and  viewed,  on  a  motion of the party seeking to
 4    unseal and view the evidence, only for good cause  shown  and
 5    in  the  discretion  of the court.  The motion must expressly
 6    set forth the purpose for viewing the material.  The  State's
 7    attorney  and  the  victim,  if  possible,  shall be provided
 8    reasonable notice of  the hearing on the motion to unseal the
 9    evidence.  Any person entitled to notice of a  hearing  under
10    this subsection (e-5) may object to the motion.
11        (f)  Definitions.  For the purposes of this Section:
12             (1)  "Disseminate"  means  (i)  to sell, distribute,
13        exchange or transfer possession, whether with or  without
14        consideration  or  (ii)  to  make a depiction by computer
15        available for distribution  or  downloading  through  the
16        facilities  of  any telecommunications network or through
17        any other means of transferring computer programs or data
18        to a computer;
19             (2)  "Produce" means to direct, promote,  advertise,
20        publish, manufacture, issue, present or show;
21             (3)  "Reproduce"  means  to  make  a  duplication or
22        copy;
23             (4)  "Depict  by  computer"  means  to  generate  or
24        create, or cause to be created or generated,  a  computer
25        program or data that, after being processed by a computer
26        either  alone or in conjunction with one or more computer
27        programs, results in a visual  depiction  on  a  computer
28        monitor, screen, or display.
29             (5)  "Depiction   by   computer"  means  a  computer
30        program or data that, after being processed by a computer
31        either alone or in conjunction with one or more  computer
32        programs,  results  in  a  visual depiction on a computer
33        monitor, screen, or display.
34             (6)  "Computer", "computer program", and "data" have
 
                            -7-                LRB9215857RCcd
 1        the meanings ascribed to them in Section  16D-2  of  this
 2        Code.
 3             (7)  "Child" includes a film, videotape, photograph,
 4        or   other  similar  visual  medium  or  reproduction  or
 5        depiction by computer that is, or appears to be, that  of
 6        a  person,  either in part, or in total, under the age of
 7        18,  regardless  of  the  method  by  which   the   film,
 8        videotape,  photograph, or other similar visual medium or
 9        reproduction  or  depiction  by  computer   is   created,
10        adopted,  or  modified  to  appear as such.  "Child" also
11        includes a film, videotape, photograph, or other  similar
12        visual  medium  or  reproduction or depiction by computer
13        that is advertised, promoted,  presented,  described,  or
14        distributed  in such a manner that conveys the impression
15        that the film, videotape, photograph,  or  other  similar
16        visual medium or reproduction or depiction by computer is
17        of a person under the age of 18.
18             (8)  "Sexual  penetration" and "sexual conduct" have
19        the meanings ascribed to them in Section  12-12  of  this
20        Code.
21        (g)  Re-enactment; findings; purposes.
22             (1)  The General Assembly finds and declares that:
23                  (i)  Section   50-5   of   Public  Act  88-680,
24             effective  January  1,  1995,  contained  provisions
25             amending  the  child  pornography  statute,  Section
26             11-20.1 of the Criminal Code of 1961.  Section  50-5
27             also contained other provisions.
28                  (ii)  In   addition,   Public  Act  88-680  was
29             entitled "AN ACT  to  create  a  Safe  Neighborhoods
30             Law".   (A)  Article 5 was entitled JUVENILE JUSTICE
31             and amended the Juvenile Court  Act  of  1987.   (B)
32             Article  15  was  entitled GANGS and amended various
33             provisions of the Criminal  Code  of  1961  and  the
34             Unified  Code  of  Corrections.   (C) Article 20 was
 
                            -8-                LRB9215857RCcd
 1             entitled   ALCOHOL   ABUSE   and   amended   various
 2             provisions  of  the  Illinois  Vehicle  Code.    (D)
 3             Article  25  was entitled DRUG ABUSE and amended the
 4             Cannabis Control Act  and  the  Illinois  Controlled
 5             Substances Act. (E) Article 30 was entitled FIREARMS
 6             and  amended  the Criminal Code of 1961 and the Code
 7             of  Criminal  Procedure  of  1963.  (F)  Article  35
 8             amended the Criminal Code of  1961,  the  Rights  of
 9             Crime  Victims  and  Witnesses  Act, and the Unified
10             Code of Corrections.  (G)  Article  40  amended  the
11             Criminal  Code  of  1961 to increase the penalty for
12             compelling organization membership of  persons.  (H)
13             Article 45 created the Secure Residential Youth Care
14             Facility Licensing Act and amended the State Finance
15             Act,  the  Juvenile  Court  Act of 1987, the Unified
16             Code of Corrections, and  the  Private  Correctional
17             Facility Moratorium Act.  (I) Article 50 amended the
18             WIC   Vendor  Management  Act,  the  Firearm  Owners
19             Identification Card Act, the Juvenile Court  Act  of
20             1987,  the  Criminal  Code  of  1961,  the Wrongs to
21             Children Act, and the Unified Code of Corrections.
22                  (iii)  On  September  22,   1998,   the   Third
23             District  Appellate  Court  in People v. Dainty, 701
24             N.E. 2d 118, ruled that Public Act  88-680  violates
25             the   single   subject   clause   of   the  Illinois
26             Constitution (Article IV, Section  8  (d))  and  was
27             unconstitutional  in  its  entirety.  As of the time
28             this amendatory Act of 1999 was prepared, People  v.
29             Dainty was still subject to appeal.
30                  (iv)  Child  pornography  is a vital concern to
31             the people of this State and the validity of  future
32             prosecutions  under the child pornography statute of
33             the Criminal Code of 1961 is in grave doubt.
34             (2)  It is the purpose of  this  amendatory  Act  of
 
                            -9-                LRB9215857RCcd
 1        1999  to  prevent  or  minimize  any problems relating to
 2        prosecutions for child pornography that may  result  from
 3        challenges  to  the constitutional validity of Public Act
 4        88-680 by  re-enacting  the  Section  relating  to  child
 5        pornography that was included in Public Act 88-680.
 6             (3)  This  amendatory  Act of 1999 re-enacts Section
 7        11-20.1 of the Criminal Code of  1961,  as  it  has  been
 8        amended.   This  re-enactment  is  intended to remove any
 9        question as to the validity or content of  that  Section;
10        it is not intended to supersede any other Public Act that
11        amends  the  text  of  the  Section  as set forth in this
12        amendatory  Act  of  1999.   The  material  is  shown  as
13        existing text  (i.e., without underscoring)  because,  as
14        of  the  time  this  amendatory Act of 1999 was prepared,
15        People v. Dainty was subject to appeal  to  the  Illinois
16        Supreme Court.
17             (4)  The re-enactment by this amendatory Act of 1999
18        of  Section 11-20.1 of the Criminal Code of 1961 relating
19        to child pornography  that  was  amended  by  Public  Act
20        88-680  is  not  intended, and shall not be construed, to
21        imply that Public Act 88-680 is invalid or  to  limit  or
22        impair   any  legal  argument  concerning  whether  those
23        provisions were substantially re-enacted by other  Public
24        Acts.
25    (Source: P.A.  91-54,  eff.  6-30-99;  91-229,  eff.  1-1-00;
26    91-357,  eff.  7-29-99;  92-16,  eff.  6-28-01;  92-434, eff.
27    1-1-02.)

28        (720 ILCS 5/33D-1) (from Ch. 38, par. 33D-1)
29        Sec. 33D-1.  (a) Contributing to the criminal delinquency
30    of a juvenile. Any person of the  age  of  17  21  years  and
31    upwards,  who  with  the  intent to promote or facilitate the
32    commission  of  an  offense  that  is  either  a  felony   or
33    misdemeanor,  solicits,  compels  or directs any person under
 
                            -10-               LRB9215857RCcd
 1    the age of 17 years in the commission of the offense  commits
 2    the  offense of contributing to the criminal delinquency of a
 3    juvenile.
 4        (b)  Sentence. Contributing to the  criminal  delinquency
 5    of  a  juvenile is a felony one grade higher than the offense
 6    committed, if the offense committed is a felony, except  when
 7    the  offense  committed  is  first degree murder or a Class X
 8    felony. When the offense committed is first degree murder  or
 9    a  Class  X  felony,  the  penalty  for  contributing  to the
10    criminal delinquency of a juvenile is the same as the penalty
11    for first degree murder or a Class  X  felony,  respectively.
12    Contributing  to  the criminal delinquency of a juvenile is a
13    misdemeanor one grade higher than the offense  committed,  if
14    the  offense  committed  is  a  misdemeanor,  except when the
15    offense committed is a Class A misdemeanor.  If  the  offense
16    committed   is   a  Class  A  misdemeanor,  the  penalty  for
17    contributing to the criminal delinquency of a juvenile  is  a
18    Class 4 felony.
19    (Source: P.A. 91-337, eff. 1-1-00.)

20        Section   10.   The  Wrongs to Children Act is amended by
21    changing Section 5.1 as follows:

22        (720 ILCS 150/5.1) (from Ch. 23, par. 2355.1)
23        Sec. 5.1.  Permitting sexual abuse of a child.
24        (a)  A person responsible for a child's  welfare  commits
25    the  offense  of  permitting sexual abuse of a child if he or
26    she knowingly permits or allows an act of sexual  abuse  upon
27    the child, or knowingly permits or allows the child to engage
28    in  prostitution  as defined in Section 11-14 of the Criminal
29    Code of 1961.
30        (b)  In this Section:
31        "Child" means a minor under the age of 17 years.
32        "Person responsible for the child's  welfare"  means  the
 
                            -11-               LRB9215857RCcd
 1    child's  parent,  step-parent,  guardian, foster parent, or a
 2    person over 17 years  of  age  who  is  responsible  for  the
 3    child's care at the time of the alleged sexual abuse.
 4        "Sexual abuse" includes criminal sexual abuse or criminal
 5    sexual  assault  as defined in Section 12-13, 12-14, 12-14.1,
 6    12-15, or 12-16 of the Criminal Code of 1961.
 7        (c)  This Section does not apply to a person  responsible
 8    for  the  child's  welfare who, having reason to believe that
 9    sexual  abuse  has  occurred,  makes  timely  and  reasonable
10    efforts to stop the sexual  abuse  by  reporting  the  sexual
11    abuse  in  conformance  with  the  Abused and Neglected Child
12    Reporting Act or by reporting the sexual abuse, or causing  a
13    report to be made, to medical or law enforcement authorities.
14        (d)  A person convicted of permitting the sexual abuse of
15    a  child  is  guilty  of  a  Class  4  felony.   A  second or
16    subsequent offense is a Class 2 felony, except that when  the
17    sexual  abuse involved sexual penetration causing bodily harm
18    to the child, it is a Class 1 felony.  As a condition of  any
19    sentence of supervision, probation, conditional discharge, or
20    mandatory supervised release, any person convicted under this
21    Section  shall  be  ordered  to  undergo  child sexual abuse,
22    domestic  violence,  or   other   appropriate   training   or
23    counseling  for a specified duration, with a qualified social
24    or mental health worker.  A.  A  parent,  step-parent,  legal
25    guardian,  or  other  person  having  custody  of a child who
26    knowingly allows or permits an act of criminal  sexual  abuse
27    or  criminal  sexual  assault  as  defined  in Section 12-13,
28    12-14, 12-14.1, 12-15 or 12-16 of the Criminal Code of  1961,
29    upon  his  or  her  child,  or  knowingly  permits,  induces,
30    promotes, or arranges for the child to engage in prostitution
31    as defined in Section 11-14 of the Criminal Code of 1961, and
32    fails  to  take reasonable steps to prevent its commission or
33    future occurrences  of  such  acts  commits  the  offense  of
34    permitting the sexual abuse of a child.  For purposes of this
 
                            -12-               LRB9215857RCcd
 1    Section, "child" means a minor under the age of 17 years.
 2        B.  Any  person  convicted of permitting the sexual abuse
 3    of a child is guilty of a Class 1 felony.
 4    (Source: P.A. 91-696, eff. 4-13-00.)

 5        Section 99.  Effective date.  This Act takes effect  upon
 6    becoming law.

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