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Public Act 096-0280 |
HB2513 Enrolled |
LRB096 09214 RLC 19366 b |
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Criminal Code of 1961 is amended by changing |
Section 11-21 as follows:
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(720 ILCS 5/11-21) (from Ch. 38, par. 11-21)
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(Text of Section after amendment by P.A. 95-983 )
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Sec. 11-21. Harmful material.
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(a) As used in this Section:
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"Distribute" means transfer possession of, whether |
with or without consideration.
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"Harmful to minors" means that quality of any |
description or representation, in whatever form, of |
nudity, sexual conduct, sexual excitement, or |
sado-masochistic abuse, when, taken as a whole, it (i) |
predominately appeals to the prurient interest in sex of |
minors, (ii) is patently offensive to prevailing standards |
in the adult community in the State as a whole with respect |
to what is suitable material for minors, and (iii) lacks |
serious literary, artistic, political, or scientific value |
for minors.
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"Knowingly" means having knowledge of the contents of |
the subject matter, or recklessly failing to exercise |
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reasonable inspection which would have disclosed the |
contents.
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"Material" means (i) any picture, photograph, drawing, |
sculpture, film, video game, computer game, video or |
similar visual depiction, including any such |
representation or image which is stored electronically, or |
(ii) any book, magazine, printed matter however |
reproduced, or recorded audio of any sort.
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"Minor" means any person under the age of 18.
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"Nudity" means the showing of the human male or female |
genitals, pubic area or buttocks with less than a full |
opaque covering, or the showing of the female breast with |
less than a fully opaque covering of any portion below the |
top of the nipple, or the depiction of covered male |
genitals in a discernably turgid state.
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"Sado-masochistic abuse" means flagellation or torture |
by or upon a person clad in undergarments, a mask or |
bizarre costume, or the condition of being fettered, bound |
or otherwise physically restrained on the part of one |
clothed for sexual gratification or stimulation.
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"Sexual conduct" means acts of masturbation, sexual |
intercourse, or physical contact with a person's clothed or |
unclothed genitals, pubic area, buttocks or, if such person |
be a female, breast.
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"Sexual excitement" means the condition of human male |
or female genitals when in a state of sexual stimulation or |
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arousal.
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(b) A person is guilty of distributing harmful material to |
a minor when he or she:
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(1) knowingly sells, lends, distributes, exhibits to, |
depicts to, or gives away to a minor, knowing that the |
minor is under the age of 18 or failing to exercise |
reasonable care in ascertaining the person's true age:
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(A) any material which depicts nudity, sexual |
conduct or sado-masochistic abuse, or which contains |
explicit and detailed verbal descriptions or narrative |
accounts of sexual excitement, sexual conduct or |
sado-masochistic abuse, and which taken as a whole is |
harmful to minors;
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(B) a motion picture, show, or other presentation |
which depicts nudity, sexual conduct or |
sado-masochistic abuse and is harmful to minors; or
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(C) an admission ticket or pass to premises where |
there is exhibited or to be exhibited such a motion |
picture, show, or other presentation; or
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(2) admits a minor to premises where there is exhibited |
or to be exhibited such a motion picture, show, or other |
presentation, knowing that the minor is a person under the |
age of 18 or failing to exercise reasonable care in |
ascertaining the person's true age.
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(c) In any prosecution arising under this Section, it is an |
affirmative defense:
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(1) that the minor as to whom the offense is alleged to |
have been committed exhibited to the accused a draft card, |
driver's license, birth certificate or other official or |
apparently official document purporting to establish that |
the minor was 18 years of age or older, which was relied |
upon by the accused;
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(2) that the defendant was in a parental or |
guardianship relationship with the minor or that the minor |
was accompanied by a parent or legal guardian;
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(3) that the defendant was a bona fide school, museum, |
or public library, or was a person acting in the course of |
his or her employment as an employee or official of such |
organization or retail outlet affiliated with and serving |
the educational purpose of such organization;
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(4) that the act charged was committed in aid of |
legitimate scientific or educational purposes; or
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(5) that an advertisement of harmful material as |
defined in this Section culminated in the sale or |
distribution of such harmful material to a child under |
circumstances where there was no personal confrontation of |
the child by the defendant, his employees, or agents, as |
where the order or request for such harmful material was |
transmitted by mail, telephone, Internet or similar means |
of communication, and delivery of such harmful material to |
the child was by mail, freight, Internet or similar means |
of transport, which advertisement contained the following |
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statement, or a substantially similar statement, and that |
the defendant required the purchaser to certify that he or |
she was not under the age of 18 and that the purchaser |
falsely stated that he or she was not under the age of 18: |
"NOTICE: It is unlawful for any person under the age of 18 |
to purchase the matter advertised. Any person under the age |
of 18 that falsely states that he or she is not under the |
age of 18 for the purpose of obtaining the material |
advertised is guilty of a Class B misdemeanor under the |
laws of the State."
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(d) The predominant appeal to prurient interest of the |
material shall be judged with reference to average children of |
the same general age of the child to whom such material was |
sold, lent, distributed or given, unless it appears from the |
nature of the matter or the circumstances of its dissemination |
or distribution that it is designed for specially susceptible |
groups, in which case the predominant appeal of the material |
shall be judged with reference to its intended or probable |
recipient group.
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(e) Distribution of harmful material in violation of this |
Section is a Class A misdemeanor. A second or subsequent |
offense is a Class 4 felony.
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(f) Any person under the age of 18 that falsely states, |
either orally or in writing, that he or she is not under the |
age of 18, or that presents or offers to any person any |
evidence of age and identity that is false or not actually his |
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or her own for the purpose of ordering, obtaining, viewing, or |
otherwise procuring or attempting to procure or view any |
harmful material is guilty of a Class B misdemeanor.
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(g) A person over the age of 18 who fails to exercise |
reasonable care in ascertaining the true age of a minor, |
knowingly distributes to, or sends, or causes to be sent, or |
exhibits to, or offers to distribute, or exhibits any harmful |
material to a person that he or she believes is a minor is |
guilty of a Class A misdemeanor. If that person utilized a |
computer web camera, cellular telephone, or any other type of |
device to manufacture the harmful material, then each offense |
is a Class 4 felony. |
(h) Telecommunications carriers, commercial mobile service |
providers, and providers of information services, including, |
but not limited to, Internet service providers and hosting |
service providers, are not liable under this Section, except |
for willful and wanton misconduct, by virtue of the |
transmission, storage, or caching of electronic communications |
or messages of others or by virtue of the provision of other |
related telecommunications, commercial mobile services, or |
information services used by others in violation of this |
Section. |
(Source: P.A. 94-315, eff. 1-1-06; 95-983, eff. 6-1-09.)
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