Public Act 90-0678 of the 90th General Assembly
Public Act 90-0678
SB1217 Enrolled LRB9007736RCks
AN ACT to amend the Criminal Code of 1961 by changing
Section 11-20.1.
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 11-20.1 as follows:
(720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
Sec. 11-20.1. Child pornography.
(a) A person commits the offense of child pornography
who:
(1) films, videotapes, photographs, or otherwise
depicts or portrays by means of any similar visual medium
or reproduction or depicts by computer any child whom he
knows or reasonably should know to be under the age of 18
or any institutionalized severely or profoundly mentally
retarded person where such child or institutionalized
severely or profoundly mentally retarded person is:
(i) actually or by simulation engaged in any
act of sexual intercourse with any person or animal;
or
(ii) actually or by simulation engaged in any
act of sexual contact involving the sex organs of
the child or institutionalized severely or
profoundly mentally retarded person and the mouth,
anus, or sex organs of another person or animal; or
which involves the mouth, anus or sex organs of the
child or institutionalized severely or profoundly
mentally retarded person and the sex organs of
another person or animal; or
(iii) actually or by simulation engaged in any
act of masturbation; or
(iv) actually or by simulation portrayed as
being the object of, or otherwise engaged in, any
act of lewd fondling, touching, or caressing
involving another person or animal; or
(v) actually or by simulation engaged in any
act of excretion or urination within a sexual
context; or
(vi) actually or by simulation portrayed or
depicted as bound, fettered, or subject to sadistic,
masochistic, or sadomasochistic abuse in any sexual
context; or
(vii) depicted or portrayed in any pose,
posture or setting involving a lewd exhibition of
the unclothed genitals, pubic area, buttocks, or, if
such person is female, a fully or partially
developed breast of the child or other person; or
(2) with the knowledge of the nature or content
thereof, reproduces, disseminates, offers to disseminate,
exhibits or possesses with intent to disseminate any
film, videotape, photograph or other similar visual
reproduction or depiction by computer of any child or
institutionalized severely or profoundly mentally
retarded person whom the person knows or reasonably
should know to be under the age of 18 or to be an
institutionalized severely or profoundly mentally
retarded person, engaged in any activity described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection; or
(3) with knowledge of the subject matter or theme
thereof, produces any stage play, live performance, film,
videotape or other similar visual portrayal or depiction
by computer which includes a child whom the person knows
or reasonably should know to be under the age of 18 or an
institutionalized severely or profoundly mentally
retarded person engaged in any activity described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection; or
(4) solicits, uses, persuades, induces, entices, or
coerces any child whom he knows or reasonably should know
to be under the age of 18 or an institutionalized
severely or profoundly mentally retarded person to appear
in any stage play, live presentation, film, videotape,
photograph or other similar visual reproduction or
depiction by computer in which the child or
institutionalized severely or profoundly mentally
retarded person is or will be depicted, actually or by
simulation, in any act, pose or setting described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection; or
(5) is a parent, step-parent, legal guardian or
other person having care or custody of a child whom the
person knows or reasonably should know to be under the
age of 18 or an institutionalized severely or profoundly
mentally retarded person and who knowingly permits,
induces, promotes, or arranges for such child or
institutionalized severely or profoundly mentally
retarded person to appear in any stage play, live
performance, film, videotape, photograph or other similar
visual presentation, portrayal or simulation or depiction
by computer of any act or activity described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection; or
(6) with knowledge of the nature or content
thereof, possesses any film, videotape, photograph or
other similar visual reproduction or depiction by
computer of any child or institutionalized severely or
profoundly mentally retarded person whom the person knows
or reasonably should know to be under the age of 18 or to
be an institutionalized severely or profoundly mentally
retarded person, engaged in any activity described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection; or
(7) solicits, uses, persuades, induces, entices, or
coerces a person to provide a child under the age of 18
or an institutionalized severely or profoundly mentally
retarded person to appear in any videotape, photograph,
film, stage play, live presentation, or other similar
visual reproduction or depiction by computer in which the
child or an institutionalized severely or profoundly
mentally retarded person will be depicted, actually or by
simulation, in any act, pose, or setting described in
subparagraphs (i) through (vii) of paragraph (1) of this
subsection.
(b) (1) It shall be an affirmative defense to a charge
of child pornography that the defendant reasonably believed,
under all of the circumstances, that the child was 18 years
of age or older or that the person was not an
institutionalized severely or profoundly mentally retarded
person but only where, prior to the act or acts giving rise
to a prosecution under this Section, he took some affirmative
action or made a bonafide inquiry designed to ascertain
whether the child was 18 years of age or older or that the
person was not an institutionalized severely or profoundly
mentally retarded person and his reliance upon the
information so obtained was clearly reasonable.
(2) (Blank). It shall be an affirmative defense to a
charge of child pornography that the defendant was employed
by a public library or any library operated by an institution
accredited by a generally recognized accrediting agency, at
the time the act leading to the charge of child pornography
took place and such act was committed during the course of
employment.
(3) The charge of child pornography shall not apply to
the performance of official duties by law enforcement or
prosecuting officers, court personnel or attorneys, nor to
bonafide treatment or professional education programs
conducted by licensed physicians, psychologists or social
workers.
(4) Possession by the defendant of more than one of the
same film, videotape or visual reproduction or depiction by
computer in which child pornography is depicted shall raise a
rebuttable presumption that the defendant possessed such
materials with the intent to disseminate them.
(c) Violation of paragraph (1), (4), (5), or (7) of
subsection (a) is a Class 1 felony with a mandatory minimum
fine of $2,000 and a maximum fine of $100,000. Violation of
paragraph (3) of subsection (a) is a Class 1 felony with a
mandatory minimum fine of $1500 and a maximum fine of
$100,000. Violation of paragraph (2) of subsection (a) is a
Class 1 felony with a mandatory minimum fine of $1000 and a
maximum fine of $100,000. Violation of paragraph (6) of
subsection (a) is a Class 3 felony with a mandatory minimum
fine of $1000 and a maximum fine of $100,000.
(d) If a person is convicted of a second or subsequent
violation of this Section within 10 years of a prior
conviction, the court shall order a presentence psychiatric
examination of the person. The examiner shall report to the
court whether treatment of the person is necessary.
(e) Any film, videotape, photograph or other similar
visual reproduction or depiction by computer which includes a
child under the age of 18 or an institutionalized severely or
profoundly mentally retarded person engaged in any activity
described in subparagraphs (i) through (vii) or paragraph 1
of subsection (a), and any material or equipment used or
intended for use in photographing, filming, printing,
producing, reproducing, manufacturing, projecting,
exhibiting, depiction by computer, or disseminating such
material shall be seized and forfeited in the manner, method
and procedure provided by Section 36-1 of this Code for the
seizure and forfeiture of vessels, vehicles and aircraft.
(f) Definitions. For the purposes of this Section:
(1) "Disseminate" means (i) to sell, distribute,
exchange or transfer possession, whether with or without
consideration or (ii) to make a depiction by computer
available for distribution or downloading through the
facilities of any telecommunications network or through
any other means of transferring computer programs or data
to a computer;
(2) "Produce" means to direct, promote, advertise,
publish, manufacture, issue, present or show;
(3) "Reproduce" means to make a duplication or
copy;
(4) "Depict by computer" means to generate or
create, or cause to be created or generated, a computer
program or data that, after being processed by a computer
either alone or in conjunction with one or more computer
programs, results in a visual depiction on a computer
monitor, screen, or display.
(5) "Depiction by computer" means a computer
program or data that, after being processed by a computer
either alone or in conjunction with one or more computer
programs, results in a visual depiction on a computer
monitor, screen, or display.
(6) "Computer", "computer program", and "data" have
the meanings ascribed to them in Section 16D-2 of this
Code.
(Source: P.A. 90-68, eff. 7-8-97.)
Section 99. Effective date. This Act takes effect upon
becoming law.