Public Act 094-0397
 		





HB0701 Enrolled
LRB094 05298 RLC 37185 b






    AN ACT concerning criminal law.

 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:


 
    Section 5. The Criminal Code of 1961 is amended  by changing 
Section 12-18 as follows:
 



    (720 ILCS 5/12-18)  (from Ch. 38, par. 12-18)


    Sec. 12-18. General Provisions. 

    (a) No person accused of violating Sections 12-13, 12-14, 
12-15 or 12-16
of this Code shall be presumed to be incapable 
of committing an offense
prohibited by Sections 12-13, 12-14, 
12-14.1, 12-15 or 12-16 of this Code
because of age, physical 
condition or relationship to the victim, except as
otherwise 
provided in subsection (c) of this Section.  Nothing in this 
Section
shall be construed to modify or abrogate the 
affirmative defense of infancy
under Section 6-1 of this Code 
or the provisions of Section 5-805 of the
Juvenile Court Act of 
1987.

    (b) Any medical examination or procedure which is conducted 
by a physician,
nurse, medical or hospital personnel, parent, 
or caretaker for purposes
and in a manner consistent with 
reasonable medical standards is not an offense
under Sections 
12-13, 12-14, 12-14.1, 12-15 and 12-16 of this Code.

    (c) (Blank).

    (d) (Blank).
In addition to the sentences provided for in 
Sections 12-13,
12-14, 12-14.1, 12-15 and 12-16 of the Criminal 
Code of 1961 the Court may
order any person who is convicted of 
violating any of those Sections to meet
all or any portion of 
the financial obligations of treatment, including but not

limited to medical, psychiatric, rehabilitative or 
psychological treatment,
prescribed for the victim or victims 
of the offense.

    (e) After a finding at a preliminary hearing that there is 
probable
cause to believe that an accused has committed a 
violation of Section
12-13, 12-14, or 12-14.1 of this Code, or 
after an indictment is returned
charging an accused with a 
violation of Section 12-13, 12-14, or 12-14.1 of
this Code,
or 
after a finding that a defendant charged with a violation of 
Section
12-13, 12-14, or 12-14.1 of this Code is unfit to stand 
trial pursuant to
Section 104-16 of the Code of
Criminal 
Procedure of 1963 where the finding is made prior to 
preliminary
hearing,
at the request of the person who was the 
victim of the violation of
Section 12-13, 12-14, or 12-14.1, 
the prosecuting State's attorney shall seek
an order from the 
court to compel the accused to be tested for any sexually

transmissible disease, including a test for infection with

human immunodeficiency virus (HIV).  The medical tests shall be

performed only
by appropriately licensed medical 
practitioners.  The test for infection with
human 
immunodeficiency virus (HIV) shall consist of an
enzyme-linked 
immunosorbent assay (ELISA) test, or such other test as may
be 
approved by the Illinois Department of Public Health; in the 
event of a
positive result, the Western Blot Assay or a more 
reliable confirmatory
test shall be administered.  The results 
of the tests shall be
kept
strictly confidential by all medical 
personnel involved in the testing and
must be personally 
delivered in a sealed envelope to the victim and to the
judge 
who entered the order, for the judge's inspection in camera.  
Acting
in accordance with the best interests of the victim and 
the public, the
judge shall have the discretion to determine to 
whom, if anyone, the result
of the testing may be revealed; 
however, in no case shall the identity of
the victim be 
disclosed.  The court shall order that the cost of the tests

shall be paid by the county, and may be taxed as costs against 
the accused
if convicted.

    (f) Whenever any law enforcement officer has reasonable 
cause to believe
that a person has been delivered a controlled 
substance without his or her
consent, the law enforcement 
officer shall advise the victim about seeking
medical treatment 
and preserving evidence.

    (g) Every hospital providing emergency hospital services 
to an alleged
sexual assault survivor, when there is reasonable

cause to believe that a person has been delivered a controlled 
substance
without his or her consent, shall designate personnel 
to provide:

        (1) An explanation to the victim about the nature and 
    effects of commonly
used controlled substances and how such 
    controlled substances are administered.

        (2) An offer to the victim of testing for the presence 
    of such controlled
substances.

        (3) A disclosure to the victim that all controlled 
    substances or alcohol
ingested by the victim will be 
    disclosed by the test.

        (4) A statement that the test is completely voluntary.

        (5) A form for written authorization for sample 
    analysis of all controlled
substances and alcohol ingested 
    by the victim.

    A physician licensed to practice medicine in all its 
branches may agree to
be a designated person under this 
subsection.

    No sample analysis may be performed unless the victim

returns a signed written authorization within 30 days

after the 
sample was
collected.

    Any medical treatment or care under this subsection shall 
be only in
accordance with the order of a physician licensed to 
practice medicine in all
of its branches.  Any testing under 
this subsection shall be only in accordance
with the order of a 
licensed individual authorized to order the testing.

(Source: P.A. 92-81, eff. 7-12-01; 93-958, eff. 8-20-04.)


 
    Section 10. The Unified Code of Corrections is amended  by 
changing Section 5-5-6 as follows:
 



    (730 ILCS 5/5-5-6)  (from Ch. 38, par. 1005-5-6)



    Sec. 5-5-6. In all convictions for offenses in violation of 
the Criminal
Code of 1961 in which the person received any 
injury to their person or damage
to their real or personal 
property as a result of the criminal act of the
defendant, the 
court shall order restitution as provided in this Section.  In

all other cases, except cases in which restitution is required 
under this
Section, the court must at the sentence hearing 
determine whether restitution
is an appropriate sentence to be 
imposed on each defendant convicted of an
offense.  If the court 
determines that an order directing the offender to make

restitution is appropriate, the offender may be sentenced to 
make restitution.
The court may consider restitution an 
appropriate sentence to be imposed on each defendant convicted 
of an offense in addition to a sentence of imprisonment.  The 
sentence of the  defendant to a term of imprisonment is not a 
mitigating factor that prevents the court from ordering the 
defendant to pay restitution. If
the offender is sentenced to 
make restitution the Court shall determine the
restitution as 
hereinafter set forth:

        (a) At the sentence hearing, the court shall determine 
    whether the
property
may be restored in kind to the 
    possession of the owner or the person entitled
to 
    possession thereof; or whether the defendant is possessed 
    of sufficient
skill to repair and restore property damaged; 
    or whether the defendant should
be required to make 
    restitution in cash, for out-of-pocket expenses, damages,

    losses, or injuries found to have been proximately caused 
    by the conduct
of the defendant or another for whom the 
    defendant is legally accountable
under the provisions of 
    Article V of the Criminal Code of 1961.

        (b) In fixing the amount of restitution to be paid in 
    cash, the court
shall allow credit for property returned in 
    kind, for property damages ordered
to be repaired by the 
    defendant, and for property ordered to be restored
by the 
    defendant; and after granting the credit, the court shall 
    assess
the actual out-of-pocket expenses, losses, damages, 
    and injuries suffered
by the victim named in the charge and 
    any other victims who may also have
suffered out-of-pocket 
    expenses, losses, damages, and injuries proximately
caused 
    by the same criminal conduct of the defendant, and 
    insurance
carriers who have indemnified the named victim or 
    other victims for the
out-of-pocket expenses, losses, 
    damages, or injuries, provided that in no
event shall 
    restitution be ordered to be paid on account of pain and

    suffering.  If a defendant is placed on supervision for, or 
    convicted of,
domestic battery, the defendant shall be 
    required to pay restitution to any
domestic violence 
    shelter in which the victim and any other family or 
    household
members lived because of the domestic battery.  
    The amount of the restitution
shall equal the actual 
    expenses of the domestic violence shelter in providing

    housing and any other services for the victim and any other 
    family or household
members living at the shelter.  If a 
    defendant fails to pay restitution in
the manner or within

    the time period specified by the court, the court may enter 
    an order
directing the sheriff to seize any real or 
    personal property of a defendant
to the extent necessary to 
    satisfy the order of restitution and dispose of
the 
    property by public sale.  All proceeds from such sale in 
    excess of the
amount of restitution plus court costs and 
    the costs of the sheriff in
conducting the sale shall be 
    paid to the defendant.  The defendant convicted of
domestic 
    battery, if a person under 18 years of age who is the child 
    of the
offender or of the victim was present and witnessed 
    the domestic battery of the
victim, is liable to pay 
    restitution for the cost of any counseling required
for
the 
    child at the discretion of the court.

        (c) In cases where more than one defendant is 
    accountable for the same
criminal conduct that results in 
    out-of-pocket expenses, losses, damages,
or injuries, each 
    defendant shall be ordered to pay restitution in the amount

    of the total actual out-of-pocket expenses, losses, 
    damages, or injuries
to the victim proximately caused by 
    the conduct of all of the defendants
who are legally 
    accountable for the offense.

            (1) In no event shall the victim be entitled to 
        recover restitution in
excess of the actual 
        out-of-pocket expenses, losses, damages, or injuries,

        proximately caused by the conduct of all of the 
        defendants.

            (2) As between the defendants, the court may 
        apportion the restitution
that is payable in 
        proportion to each co-defendant's culpability in the

        commission of the offense.

            (3) In the absence of a specific order apportioning 
        the restitution,
each defendant shall bear his pro rata 
        share of the restitution.

            (4) As between the defendants, each defendant 
        shall be entitled to a pro
rata reduction in the total 
        restitution required to be paid to the victim
for 
        amounts of restitution actually paid by co-defendants, 
        and defendants
who shall have paid more than their pro 
        rata share shall be entitled to
refunds to be computed 
        by the court as additional amounts are
paid by 
        co-defendants.

        (d) In instances where a defendant has more than one 
    criminal charge
pending
against him in a single case, or 
    more than one case, and the defendant stands
convicted of 
    one or more charges, a plea agreement negotiated by the 
    State's
Attorney and the defendants may require the 
    defendant to make restitution
to victims of charges that 
    have been dismissed or which it is contemplated
will be 
    dismissed under the terms of the plea agreement, and under 
    the
agreement, the court may impose a sentence of 
    restitution on the charge
or charges of which the defendant 
    has been convicted that would require
the defendant to make 
    restitution to victims of other offenses as provided
in the 
    plea agreement.

        (e) The court may require the defendant to apply the 
    balance of the cash
bond, after payment of court costs, and 
    any fine that may be imposed to
the payment of restitution.

        (f) Taking into consideration the ability of the 
    defendant to pay, including any real or personal property 
    or any other assets of the defendant,
the court shall 
    determine whether restitution shall be paid in a single

    payment or in installments, and shall fix a period of time 
    not in excess
of 5 years or the period of time specified in 
    subsection (f-1), not including periods of incarceration, 
    within which payment of
restitution is to be paid in full.

    Complete restitution shall be paid in as short a time 
    period as possible.
However, if the court deems it 
    necessary and in the best interest of the
victim, the court 
    may extend beyond 5 years the period of time within which 
    the
payment of restitution is to be paid.
If the defendant 
    is ordered to pay restitution and the court orders that

    restitution is to be paid over a period greater than 6 
    months, the court
shall order that the defendant make 
    monthly payments; the court may waive
this requirement of 
    monthly payments only if there is a specific finding of

    good cause for waiver.

        (f-1)(1)  In addition to any other penalty prescribed by 
    law and any restitution ordered under this Section that did 
    not include long-term physical health care costs, the court 
    may, upon conviction of any misdemeanor or felony, order a 
    defendant to pay restitution to a victim in accordance with 
    the provisions of this subsection (f-1) if the victim has 
    suffered physical injury as a result of the offense that  is 
    reasonably probable to require or has required long-term 
    physical health care for more than 3 months.  As used in 
    this subsection (f-1) "long-term physical health care" 
    includes mental health care.

        (2)  The victim's estimate of long-term physical health 
    care costs may be made as part of a victim impact statement 
    under Section 6 of the Rights of Crime Victims and 
    Witnesses Act or made separately.  The court shall enter the 
    long-term physical health care restitution order at the 
    time of sentencing.  An order of restitution made under this 
    subsection (f-1) shall fix a monthly amount to be paid by 
    the defendant for as long as long-term physical health care 
    of the victim is required as a result of the offense.  The 
    order may exceed the length of any sentence imposed upon 
    the defendant for the criminal activity. The court shall 
    include as a special finding in the judgment of conviction 
    its determination of the monthly cost of long-term physical 
    health care.

        (3) After a sentencing order has been entered, the 
    court may from time to time, on the petition of either the 
    defendant or the victim, or upon its own motion, enter an 
    order for restitution for long-term physical care or modify 
    the existing order for restitution for long-term physical 
    care as to the amount of monthly payments.  Any modification 
    of the order shall be based only upon a substantial change 
    of circumstances relating to the cost of long-term physical 
    health care or the financial condition of either the 
    defendant or the victim.  The petition shall be filed as 
    part of the original criminal docket.

        (g) In addition to the sentences provided for in 
    Sections 11-19.2, 11-20.1, 12-13,
12-14, 12-14.1, 12-15, 
    and 12-16 of the Criminal Code of 1961, the court may
order 
    any person who is convicted of violating any of those 
    Sections or who was charged with any of those offenses and 
    which charge was reduced to another charge as a result of a 
    plea agreement under subsection (d) of this Section to meet

    all or any portion of the financial obligations of 
    treatment, including but not
limited to medical, 
    psychiatric, or  rehabilitative treatment or psychological 
    counseling,
prescribed for the victim or victims of the 
    offense.
The court shall, after determining that the 
    defendant has the
ability to pay, require the defendant to 
    pay for the
victim's counseling services if:

            (1) the defendant was convicted of an offense under 
        Sections 11-19.2,
11-20.1, 12-13, 12-14, 12-14.1, 
        12-15 or 12-16 of the Criminal Code of
1961,
or was 
        charged with such an offense and the charge was reduced 
        to another
charge as a result of a plea agreement under 
        subsection (d) of this Section,
and

            (2) the victim was under 18 years of age at the 
        time the
offense was committed and requires counseling 
        as a result of the offense.

        The payments shall be made by the defendant to the 
    clerk of the circuit
court
and transmitted by the clerk to 
    the appropriate person or agency as directed by
the court.  
    Except as otherwise provided in subsection (f-1), the
The

    order may require such payments to be made for a period not 
    to
exceed 5 years after sentencing, not including periods 
    of incarceration.

        (h) The judge may enter an order of withholding to 
    collect the amount
of restitution owed in accordance with 
    Part 8 of Article XII of the Code of
Civil Procedure.

        (i) A sentence of restitution may be modified or 
    revoked by the court
if the offender commits another 
    offense, or the offender fails to make
restitution as 
    ordered by the court, but no sentence to make restitution

    shall be revoked unless the court shall find that the 
    offender has had the
financial ability to make restitution, 
    and he has wilfully refused to do
so.  When the offender's 
    ability to pay restitution was established at the time
an 
    order of restitution was entered or modified, or when the 
    offender's ability
to pay was based on the offender's 
    willingness to make restitution as part of a
plea agreement 
    made at the time the order of restitution was entered or

    modified, there is a rebuttable presumption that the facts 
    and circumstances
considered by the court at the hearing at 
    which the order of restitution was
entered or modified 
    regarding the offender's ability or willingness to pay

    restitution have not materially changed.  If the court shall 
    find that the
defendant has failed to make
restitution and 
    that the failure is not wilful, the court may impose an

    additional period of time within which to make restitution.  
    The length of
the additional period shall not be more than 
    2 years.  The court shall
retain all of the incidents of the 
    original sentence, including the
authority to modify or 
    enlarge the conditions, and to revoke or further
modify the 
    sentence if the conditions of payment are violated during 
    the
additional period.

        (j) The procedure upon the filing of a Petition to 
    Revoke a sentence to
make restitution shall be the same as 
    the procedures set forth in Section
5-6-4 of this Code 
    governing violation, modification, or revocation of

    Probation, of Conditional Discharge, or of Supervision.

        (k) Nothing contained in this Section shall preclude 
    the right of any
party to proceed in a civil action to 
    recover for any damages incurred due
to the criminal 
    misconduct of the defendant.

        (l) Restitution ordered under this Section shall not be

    subject to disbursement by the circuit clerk under Section 
    27.5 of the
Clerks of Courts Act.

        (m) A restitution order under this Section is a 
    judgment lien in favor
of
the victim that:

            (1) Attaches to the property of the person subject 
        to the order;

            (2) May be perfected in the same manner as provided 
        in Part 3 of Article
9 of the Uniform Commercial Code;

            (3) May be enforced to satisfy any payment that is 
        delinquent under the
restitution order by the person in 
        whose favor the order is issued or the
person's 
        assignee; and

            (4) Expires in the same manner as a judgment lien 
        created in a civil
proceeding.

        When a restitution order is issued under this Section, 
    the issuing court
shall send a certified copy of the order 
    to the clerk of the circuit court
in the county where the 
    charge was filed.  Upon receiving the order, the
clerk shall 
    enter and index the order in the circuit court judgment 
    docket.

        (n) An order of restitution under this Section does not 
    bar
a civil action for:

            (1) Damages that the court did not require the 
        person to pay to the
victim under the restitution order 
        but arise from an injury or property
damages that is 
        the basis of restitution ordered by the court; and

            (2) Other damages suffered by the victim.

    The restitution order is not discharged by the
completion 
of the sentence imposed for the offense.

    A restitution order under this Section is not discharged by 
the
liquidation of a person's estate by a receiver.  A 
restitution order under
this Section may be enforced in the 
same manner as judgment liens are
enforced under Article XII of 
the Code of Civil Procedure.

    The provisions of Section 2-1303 of the Code of Civil 
Procedure,
providing for interest on judgments, apply to 
judgments for restitution entered
under this Section.

(Source: P.A. 91-153, eff. 1-1-00; 91-262, eff. 1-1-00;
91-420, 
eff. 1-1-00; 92-16, eff. 6-28-01.)






Effective Date:  1/1/2006