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Public Act 92-0434
SB401 Enrolled LRB9201103RCcd
AN ACT to amend certain Acts in relation to mentally
retarded persons.
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 Sections 2-10.1, 10-2, 10-5, 11-15.1, 11-19.1,
11-19.2, 11-20.1, 12-4.3, 12-14, and 12-16 as follows:
(720 ILCS 5/2-10.1) (from Ch. 38, par. 2-10.1)
Sec. 2-10.1. "Institutionalized Severely or profoundly
mentally retarded person" means a person who is
institutionalized in a developmental disability facility,
nursing home facility, or long term care facility and either
(i) whose the person's intelligence quotient does not exceed
40 or (ii) whose the person's intelligence quotient does not
exceed 55 and who the person suffers from significant mental
illness to the extent that the person's ability to exercise
rational judgment is impaired. In any proceeding in which the
defendant is charged with committing a violation of Section
10-2, 10-5, 11-15.1, 11-19.1, 11-19.2, 11-20.1, 12-4.3,
12-14, or 12-16 of this Code against a victim who is alleged
to be a an institutionalized severely or profoundly mentally
retarded person, any findings concerning the victim's status
as a an institutionalized severely or profoundly mentally
retarded person, made by a court after a judicial admission
hearing concerning the victim under Articles V and VI of
Chapter 4 of the Mental Health and Developmental Disabilities
Code shall be admissible.
(Source: P.A. 87-1198.)
(720 ILCS 5/10-2) (from Ch. 38, par. 10-2)
Sec. 10-2. Aggravated kidnaping.
(a) A kidnaper within the definition of paragraph (a) of
Section 10-1 is guilty of the offense of aggravated
kidnaping when he:
(1) Kidnaps for the purpose of obtaining ransom
from the person kidnaped or from any other person, or
(2) Takes as his victim a child under the age of 13
years, or a an institutionalized severely or profoundly
mentally retarded person, or
(3) Inflicts great bodily harm, other than by the
discharge of a firearm, or commits another felony upon
his victim, or
(4) Wears a hood, robe or mask or conceals his
identity, or
(5) Commits the offense of kidnaping while armed
with a dangerous weapon, other than a firearm, as defined
in Section 33A-1 of the "Criminal Code of 1961", or
(6) Commits the offense of kidnaping while armed
with a firearm, or
(7) During the commission of the offense of
kidnaping, personally discharged a firearm, or
(8) During the commission of the offense of
kidnaping, personally discharged a firearm that
proximately caused great bodily harm, permanent
disability, permanent disfigurement, or death to another
person.
As used in this Section, "ransom" includes money, benefit
or other valuable thing or concession.
(b) Sentence. Aggravated kidnaping in violation of
paragraph (1), (2), (3), (4), or (5) of subsection (a) is a
Class X felony. A violation of subsection (a)(6) is a Class X
felony for which 15 years shall be added to the term of
imprisonment imposed by the court. A violation of subsection
(a)(7) is a Class X felony for which 20 years shall be added
to the term of imprisonment imposed by the court. A violation
of subsection (a)(8) is a Class X felony for which 25 years
or up to a term of natural life shall be added to the term of
imprisonment imposed by the court.
A person who is convicted of a second or subsequent
offense of aggravated kidnaping shall be sentenced to a term
of natural life imprisonment; provided, however, that a
sentence of natural life imprisonment shall not be imposed
under this Section unless the second or subsequent offense
was committed after conviction on the first offense.
(Source: P.A. 91-404, eff. 1-1-00.)
(720 ILCS 5/10-5) (from Ch. 38, par. 10-5)
Sec. 10-5. Child Abduction.
(a) For purposes of this Section, the following terms
shall have the following meanings:
(1) "Child" means a person under the age of 18 or a
an institutionalized severely or profoundly mentally
retarded person at the time the alleged violation
occurred; and
(2) "Detains" means taking or retaining physical
custody of a child, whether or not the child resists or
objects; and
(3) "Lawful custodian" means a person or persons
granted legal custody of a child or entitled to physical
possession of a child pursuant to a court order. It is
presumed that, when the parties have never been married
to each other, the mother has legal custody of the child
unless a valid court order states otherwise. If an
adjudication of paternity has been completed and the
father has been assigned support obligations or
visitation rights, such a paternity order should, for the
purposes of this Section be considered a valid court
order granting custody to the mother.
(b) A person commits child abduction when he or she:
(1) Intentionally violates any terms of a valid
court order granting sole or joint custody, care or
possession to another, by concealing or detaining the
child or removing the child from the jurisdiction of the
court; or
(2) Intentionally violates a court order
prohibiting the person from concealing or detaining the
child or removing the child from the jurisdiction of the
court; or
(3) Intentionally conceals, detains or removes the
child without the consent of the mother or lawful
custodian of the child if the person is a putative father
and either: (A) the paternity of the child has not been
legally established or (B) the paternity of the child has
been legally established but no orders relating to
custody have been entered. However, notwithstanding the
presumption created by paragraph (3) of subsection (a), a
mother commits child abduction when she intentionally
conceals or removes a child, whom she has abandoned or
relinquished custody of, from an unadjudicated father who
has provided sole ongoing care and custody of the child
in her absence; or
(4) Intentionally conceals or removes the child
from a parent after filing a petition or being served
with process in an action affecting marriage or paternity
but prior to the issuance of a temporary or final order
determining custody; or
(5) At the expiration of visitation rights outside
the State, intentionally fails or refuses to return or
impedes the return of the child to the lawful custodian
in Illinois; or
(6) Being a parent of the child, and where the
parents of such child are or have been married and there
has been no court order of custody, conceals the child
for 15 days, and fails to make reasonable attempts within
the 15 day period to notify the other parent as to the
specific whereabouts of the child, including a means by
which to contact such child, or to arrange reasonable
visitation or contact with the child. It is not a
violation of this Section for a person fleeing domestic
violence to take the child with him or her to housing
provided by a domestic violence program; or
(7) Being a parent of the child, and where the
parents of the child are or have been married and there
has been no court order of custody, conceals, detains, or
removes the child with physical force or threat of
physical force; or
(8) Conceals, detains, or removes the child for
payment or promise of payment at the instruction of a
person who has no legal right to custody; or
(9) Retains in this State for 30 days a child
removed from another state without the consent of the
lawful custodian or in violation of a valid court order
of custody; or
(10) Intentionally lures or attempts to lure a
child under the age of 16 into a motor vehicle, building,
housetrailer, or dwelling place without the consent of
the parent or lawful custodian of the child for other
than a lawful purpose.
For the purposes of this subsection (b), paragraph (10),
the luring or attempted luring of a child under the age of 16
into a motor vehicle, building, housetrailer, or dwelling
place without the consent of the parent or lawful custodian
of the child shall be prima facie evidence of other than a
lawful purpose.
(c) It shall be an affirmative defense that:
(1) The person had custody of the child pursuant to
a court order granting legal custody or visitation rights
which existed at the time of the alleged violation; or
(2) The person had physical custody of the child
pursuant to a court order granting legal custody or
visitation rights and failed to return the child as a
result of circumstances beyond his or her control, and
the person notified and disclosed to the other parent or
legal custodian the specific whereabouts of the child and
a means by which such child can be contacted or made a
reasonable attempt to notify the other parent or lawful
custodian of the child of such circumstances and make
such disclosure within 24 hours after the visitation
period had expired and returned the child as soon as
possible; or
(3) The person was fleeing an incidence or pattern
of domestic violence; or
(4) The person lured or attempted to lure a child
under the age of 16 into a motor vehicle, building,
housetrailer, or dwelling place for a lawful purpose in
prosecutions under subsection (b), paragraph (10).
(d) A person convicted of child abduction under this
Section is guilty of a Class 4 felony. A person convicted of
a second or subsequent violation of paragraph (10) of
subsection (b) of this Section is guilty of a Class 3 felony.
It shall be a factor in aggravation for which a court may
impose a more severe sentence under Section 5-8-1 of the
Unified Code of Corrections, if upon sentencing the court
finds evidence of any of the following aggravating factors:
(1) that the defendant abused or neglected the
child following the concealment, detention or removal of
the child; or
(2) that the defendant inflicted or threatened to
inflict physical harm on a parent or lawful custodian of
the child or on the child with intent to cause such
parent or lawful custodian to discontinue criminal
prosecution of the defendant under this Section; or
(3) that the defendant demanded payment in exchange
for return of the child or demanded that he or she be
relieved of the financial or legal obligation to support
the child in exchange for return of the child; or
(4) that the defendant has previously been
convicted of child abduction; or
(5) that the defendant committed the abduction
while armed with a deadly weapon or the taking of the
child resulted in serious bodily injury to another; or
(6) that the defendant committed the abduction
while in a school, regardless of the time of day or time
of year; in a playground; on any conveyance owned,
leased, or contracted by a school to transport students
to or from school or a school related activity; on the
real property of a school; or on a public way within
1,000 feet of the real property comprising any school or
playground. For purposes of this paragraph (6),
"playground" means a piece of land owned or controlled by
a unit of local government that is designated by the unit
of local government for use solely or primarily for
children's recreation; and "school" means a public or
private elementary or secondary school, community
college, college, or university.
(e) The court may order the child to be returned to the
parent or lawful custodian from whom the child was concealed,
detained or removed. In addition to any sentence imposed,
the court may assess any reasonable expense incurred in
searching for or returning the child against any person
convicted of violating this Section.
(f) Nothing contained in this Section shall be construed
to limit the court's contempt power.
(g) Every law enforcement officer investigating an
alleged incident of child abduction shall make a written
police report of any bona fide allegation and the disposition
of such investigation. Every police report completed
pursuant to this Section shall be compiled and recorded
within the meaning of Section 5.1 of "An Act in relation to
criminal identification and investigation", approved July 2,
1931, as now or hereafter amended.
(h) Whenever a law enforcement officer has reasons to
believe a child abduction has occurred, he shall provide the
lawful custodian a summary of her or his rights under this
Act, including the procedures and relief available to her or
him.
(i) If during the course of an investigation under this
Section the child is found in the physical custody of the
defendant or another, the law enforcement officer shall
return the child to the parent or lawful custodian from whom
the child was concealed, detained or removed, unless there is
good cause for the law enforcement officer or the Department
of Children and Family Services to retain temporary
protective custody of the child pursuant to the Abused and
Neglected Child Reporting Act, as now or hereafter amended.
(Source: P.A. 90-494, eff. 1-1-98.)
(720 ILCS 5/11-15.1) (from Ch. 38, par. 11-15.1)
Sec. 11-15.1. Soliciting for a Juvenile Prostitute.
(a) Any person who violates any of the provisions of
Section 11-15(a) of this Act commits soliciting for a
juvenile prostitute where the prostitute for whom such person
is soliciting is under 16 years of age or is a an
institutionalized severely or profoundly mentally retarded
person.
(b) It is an affirmative defense to a charge of
soliciting for a juvenile prostitute that the accused
reasonably believed the person was of the age of 16 years or
over or was not a an institutionalized severely or profoundly
mentally retarded person at the time of the act giving rise
to the charge.
(c) Sentence.
Soliciting for a juvenile prostitute is a Class 1 felony.
(Source: P.A. 85-1392.)
(720 ILCS 5/11-19.1) (from Ch. 38, par. 11-19.1)
Sec. 11-19.1. Juvenile Pimping.
(a) Any person who receives any money, property, token,
object, or article or anything of value from a prostitute
under 16 years of age or from a prostitute who is a an
institutionalized severely or profoundly mentally retarded
person, not for a lawful consideration, knowing it was earned
in whole or in part from the practice of prostitution,
commits juvenile pimping.
(b) It is an affirmative defense to a charge of juvenile
pimping that the accused reasonably believed the person was
of the age of 16 years or over or was not a an
institutionalized severely or profoundly mentally retarded
person at the time of the act giving rise to the charge.
(c) Sentence.
Juvenile pimping is a Class 1 felony.
(Source: P.A. 91-696, eff. 4-13-00.)
(720 ILCS 5/11-19.2) (from Ch. 38, par. 11-19.2)
Sec. 11-19.2. Exploitation of a child.
(A) A person commits exploitation of a child when he or
she confines a child under the age of 16 or a an
institutionalized severely or profoundly mentally retarded
person against his or her will by the infliction or threat of
imminent infliction of great bodily harm, permanent
disability or disfigurement or by administering to the child
or an institutionalized severely or profoundly mentally
retarded person without his or her consent or by threat or
deception and for other than medical purposes, any alcoholic
intoxicant or a drug as defined in the Illinois Controlled
Substances Act or the Cannabis Control Act and:
(1) compels the child or an institutionalized
severely or profoundly mentally retarded person to become
a prostitute; or
(2) arranges a situation in which the child or an
institutionalized severely or profoundly mentally
retarded person may practice prostitution; or
(3) receives any money, property, token, object, or
article or anything of value from the child or an
institutionalized severely or profoundly mentally
retarded person knowing it was obtained in whole or in
part from the practice of prostitution.
(B) For purposes of this Section, administering drugs,
as defined in subsection (A), or an alcoholic intoxicant to a
child under the age of 13 or a an institutionalized severely
or profoundly mentally retarded person shall be deemed to be
without consent if such administering is done without the
consent of the parents or legal guardian.
(C) Exploitation of a child is a Class X felony.
(D) Any person convicted under this Section is subject
to the forfeiture provisions of Section 11-20.1A of this Act.
(Source: P.A. 91-357, eff. 7-29-99; 91-696, eff. 4-13-00.)
(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 a 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 a
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 a 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 a 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 a 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 a 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 a 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 a an institutionalized severely or profoundly
mentally retarded person and his reliance upon the
information so obtained was clearly reasonable.
(2) (Blank).
(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.
(5) The charge of child pornography does not apply
to a person who does not voluntarily possess a film,
videotape, or visual reproduction or depiction by
computer in which child pornography is depicted.
Possession is voluntary if the defendant knowingly
procures or receives a film, videotape, or visual
reproduction or depiction for a sufficient time to be
able to terminate his or her possession.
(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 a 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.
(e-5) Upon the conclusion of a case brought under this
Section, the court shall seal all evidence depicting a victim
or witness that is sexually explicit. The evidence may be
unsealed and viewed, on a motion of the party seeking to
unseal and view the evidence, only for good cause shown and
in the discretion of the court. The motion must expressly
set forth the purpose for viewing the material. The State's
attorney and the victim, if possible, shall be provided
reasonable notice of the hearing on the motion to unseal the
evidence. Any person entitled to notice of a hearing under
this subsection (e-5) may object to the motion.
(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.
(7) "Child" includes a film, videotape, photograph,
or other similar visual medium or reproduction or
depiction by computer that is, or appears to be, that of
a person, either in part, or in total, under the age of
18, regardless of the method by which the film,
videotape, photograph, or other similar visual medium or
reproduction or depiction by computer is created,
adopted, or modified to appear as such. "Child" also
includes a film, videotape, photograph, or other similar
visual medium or reproduction or depiction by computer
that is advertised, promoted, presented, described, or
distributed in such a manner that conveys the impression
that the film, videotape, photograph, or other similar
visual medium or reproduction or depiction by computer is
of a person under the age of 18.
(g) Re-enactment; findings; purposes.
(1) The General Assembly finds and declares that:
(i) Section 50-5 of Public Act 88-680,
effective January 1, 1995, contained provisions
amending the child pornography statute, Section
11-20.1 of the Criminal Code of 1961. Section 50-5
also contained other provisions.
(ii) In addition, Public Act 88-680 was
entitled "AN ACT to create a Safe Neighborhoods
Law". (A) Article 5 was entitled JUVENILE JUSTICE
and amended the Juvenile Court Act of 1987. (B)
Article 15 was entitled GANGS and amended various
provisions of the Criminal Code of 1961 and the
Unified Code of Corrections. (C) Article 20 was
entitled ALCOHOL ABUSE and amended various
provisions of the Illinois Vehicle Code. (D)
Article 25 was entitled DRUG ABUSE and amended the
Cannabis Control Act and the Illinois Controlled
Substances Act. (E) Article 30 was entitled FIREARMS
and amended the Criminal Code of 1961 and the Code
of Criminal Procedure of 1963. (F) Article 35
amended the Criminal Code of 1961, the Rights of
Crime Victims and Witnesses Act, and the Unified
Code of Corrections. (G) Article 40 amended the
Criminal Code of 1961 to increase the penalty for
compelling organization membership of persons. (H)
Article 45 created the Secure Residential Youth Care
Facility Licensing Act and amended the State Finance
Act, the Juvenile Court Act of 1987, the Unified
Code of Corrections, and the Private Correctional
Facility Moratorium Act. (I) Article 50 amended the
WIC Vendor Management Act, the Firearm Owners
Identification Card Act, the Juvenile Court Act of
1987, the Criminal Code of 1961, the Wrongs to
Children Act, and the Unified Code of Corrections.
(iii) On September 22, 1998, the Third
District Appellate Court in People v. Dainty, 701
N.E. 2d 118, ruled that Public Act 88-680 violates
the single subject clause of the Illinois
Constitution (Article IV, Section 8 (d)) and was
unconstitutional in its entirety. As of the time
this amendatory Act of 1999 was prepared, People v.
Dainty was still subject to appeal.
(iv) Child pornography is a vital concern to
the people of this State and the validity of future
prosecutions under the child pornography statute of
the Criminal Code of 1961 is in grave doubt.
(2) It is the purpose of this amendatory Act of
1999 to prevent or minimize any problems relating to
prosecutions for child pornography that may result from
challenges to the constitutional validity of Public Act
88-680 by re-enacting the Section relating to child
pornography that was included in Public Act 88-680.
(3) This amendatory Act of 1999 re-enacts Section
11-20.1 of the Criminal Code of 1961, as it has been
amended. This re-enactment is intended to remove any
question as to the validity or content of that Section;
it is not intended to supersede any other Public Act that
amends the text of the Section as set forth in this
amendatory Act of 1999. The material is shown as
existing text (i.e., without underscoring) because, as
of the time this amendatory Act of 1999 was prepared,
People v. Dainty was subject to appeal to the Illinois
Supreme Court.
(4) The re-enactment by this amendatory Act of 1999
of Section 11-20.1 of the Criminal Code of 1961 relating
to child pornography that was amended by Public Act
88-680 is not intended, and shall not be construed, to
imply that Public Act 88-680 is invalid or to limit or
impair any legal argument concerning whether those
provisions were substantially re-enacted by other Public
Acts.
(Source: P.A. 90-68, eff. 7-8-97; 90-678, eff. 7-31-98;
90-786, eff. 1-1-99; 91-54, eff. 6-30-99; 91-229, eff.
1-1-00; 91-357, eff. 7-29-99; revised 8-30-99.)
(720 ILCS 5/12-4.3) (from Ch. 38, par. 12-4.3)
Sec. 12-4.3. Aggravated battery of a child.
(a) Any person of the age 18 years and upwards who
intentionally or knowingly, and without legal justification
and by any means, causes great bodily harm or permanent
disability or disfigurement to any child under the age of 13
years or to any institutionalized severely or profoundly
mentally retarded person, commits the offense of aggravated
battery of a child.
(b) Aggravated battery of a child is a Class X felony,
except that:
(1) if the person committed the offense while armed
with a firearm, 15 years shall be added to the term of
imprisonment imposed by the court;
(2) if, during the commission of the offense, the
person personally discharged a firearm, 20 years shall be
added to the term of imprisonment imposed by the court;
(3) if, during the commission of the offense, the
person personally discharged a firearm that proximately
caused great bodily harm, permanent disability, permanent
disfigurement, or death to another person, 25 years or up
to a term of natural life shall be added to the term of
imprisonment imposed by the court.
(Source: P.A. 91-357, eff. 7-29-99; 91-404, eff. 1-1-00.)
(720 ILCS 5/12-14) (from Ch. 38, par. 12-14)
Sec. 12-14. Aggravated Criminal Sexual Assault.
(a) The accused commits aggravated criminal sexual
assault if he or she commits criminal sexual assault and any
of the following aggravating circumstances existed during, or
for the purposes of paragraph (7) of this subsection (a) as
part of the same course of conduct as, the commission of the
offense:
(1) the accused displayed, threatened to use, or
used a dangerous weapon, other than a firearm, or any
object fashioned or utilized in such a manner as to lead
the victim under the circumstances reasonably to believe
it to be a dangerous weapon; or
(2) the accused caused bodily harm, except as
provided in subsection (a)(10), to the victim; or
(3) the accused acted in such a manner as to
threaten or endanger the life of the victim or any other
person; or
(4) the criminal sexual assault was perpetrated
during the course of the commission or attempted
commission of any other felony by the accused; or
(5) the victim was 60 years of age or over when the
offense was committed; or
(6) the victim was a physically handicapped person;
or
(7) the accused delivered (by injection,
inhalation, ingestion, transfer of possession, or any
other means) to the victim without his or her consent, or
by threat or deception, and for other than medical
purposes, any controlled substance; or
(8) the accused was armed with a firearm; or
(9) the accused personally discharged a firearm
during the commission of the offense; or
(10) the accused, during the commission of the
offense, personally discharged a firearm that proximately
caused great bodily harm, permanent disability, permanent
disfigurement, or death to another person.
(b) The accused commits aggravated criminal sexual
assault if the accused was under 17 years of age and (i)
commits an act of sexual penetration with a victim who was
under 9 years of age when the act was committed; or (ii)
commits an act of sexual penetration with a victim who was at
least 9 years of age but under 13 years of age when the act
was committed and the accused used force or threat of force
to commit the act.
(c) The accused commits aggravated criminal sexual
assault if he or she commits an act of sexual penetration
with a victim who was a an institutionalized severely or
profoundly mentally retarded person at the time the act was
committed.
(d) Sentence.
(1) Aggravated criminal sexual assault in violation
of paragraph (1), (2), (3), (4), (5), (6), or (7) of
subsection (a) is a Class X felony. A violation of
subsection (a)(8) is a Class X felony for which 15 years
shall be added to the term of imprisonment imposed by the
court. A violation of subsection (a)(9) is a Class X
felony for which 20 years shall be added to the term of
imprisonment imposed by the court. A violation of
subsection (a)(10) is a Class X felony for which 25 years
or up to a term of natural life imprisonment shall be
added to the term of imprisonment imposed by the court.
(2) A person who is convicted of a second or
subsequent offense of aggravated criminal sexual assault,
or who is convicted of the offense of aggravated criminal
sexual assault after having previously been convicted of
the offense of criminal sexual assault or the offense of
predatory criminal sexual assault of a child, or who is
convicted of the offense of aggravated criminal sexual
assault after having previously been convicted under the
laws of this or any other state of an offense that is
substantially equivalent to the offense of criminal
sexual assault, the offense of aggravated criminal sexual
assault or the offense of predatory criminal sexual
assault of a child, shall be sentenced to a term of
natural life imprisonment. The commission of the second
or subsequent offense is required to have been after the
initial conviction for this paragraph (2) to apply.
(Source: P.A. 90-396, eff. 1-1-98; 90-735, eff. 8-11-98;
91-404, eff. 1-1-00.)
(720 ILCS 5/12-16) (from Ch. 38, par. 12-16)
Sec. 12-16. Aggravated Criminal Sexual Abuse.
(a) The accused commits aggravated criminal sexual abuse
if he or she commits criminal sexual abuse as defined in
subsection (a) of Section 12-15 of this Code and any of the
following aggravating circumstances existed during, or for
the purposes of paragraph (7) of this subsection (a) as part
of the same course of conduct as, the commission of the
offense:
(1) the accused displayed, threatened to use or
used a dangerous weapon or any object fashioned or
utilized in such a manner as to lead the victim under the
circumstances reasonably to believe it to be a dangerous
weapon; or
(2) the accused caused bodily harm to the victim;
or
(3) the victim was 60 years of age or over when the
offense was committed; or
(4) the victim was a physically handicapped person;
or
(5) the accused acted in such a manner as to
threaten or endanger the life of the victim or any other
person; or
(6) the criminal sexual abuse was perpetrated
during the course of the commission or attempted
commission of any other felony by the accused; or
(7) the accused delivered (by injection,
inhalation, ingestion, transfer of possession, or any
other means) to the victim without his or her consent, or
by threat or deception, and for other than medical
purposes, any controlled substance.
(b) The accused commits aggravated criminal sexual abuse
if he or she commits an act of sexual conduct with a victim
who was under 18 years of age when the act was committed and
the accused was a family member.
(c) The accused commits aggravated criminal sexual abuse
if:
(1) the accused was 17 years of age or over and (i)
commits an act of sexual conduct with a victim who was
under 13 years of age when the act was committed; or (ii)
commits an act of sexual conduct with a victim who was at
least 13 years of age but under 17 years of age when the
act was committed and the accused used force or threat of
force to commit the act; or
(2) the accused was under 17 years of age and (i)
commits an act of sexual conduct with a victim who was
under 9 years of age when the act was committed; or (ii)
commits an act of sexual conduct with a victim who was at
least 9 years of age but under 17 years of age when the
act was committed and the accused used force or threat of
force to commit the act.
(d) The accused commits aggravated criminal sexual abuse
if he or she commits an act of sexual penetration or sexual
conduct with a victim who was at least 13 years of age but
under 17 years of age and the accused was at least 5 years
older than the victim.
(e) The accused commits aggravated criminal sexual abuse
if he or she commits an act of sexual conduct with a victim
who was a an institutionalized severely or profoundly
mentally retarded person at the time the act was committed.
(f) The accused commits aggravated criminal sexual abuse
if he or she commits an act of sexual conduct with a victim
who was at least 13 years of age but under 18 years of age
when the act was committed and the accused was 17 years of
age or over and held a position of trust, authority or
supervision in relation to the victim.
(g) Sentence. Aggravated criminal sexual abuse is a
Class 2 felony.
(Source: P.A. 89-586, eff. 7-31-96; 90-735, eff. 8-11-98.)
Section 10. The Code of Criminal Procedure of 1963 is
amended by changing Sections 106B-5 and 115-10 and by adding
Section 102-23 as follows:
(725 ILCS 5/102-23 new)
Sec. 102-23. "Moderately mentally retarded person" means
a person whose intelligence quotient is between 41 and 55 and
who does not suffer from significant mental illness to the
extent that the person's ability to exercise rational
judgment is impaired.
(725 ILCS 5/106B-5)
Sec. 106B-5. Testimony by a victim who is a child or a
moderately, severely, or profoundly mentally retarded person
victim.
(a) In a proceeding in the prosecution of an offense of
criminal sexual assault, predatory criminal sexual assault of
a child, aggravated criminal sexual assault, criminal sexual
abuse, or aggravated criminal sexual abuse, a court may order
that the testimony of a victim who is a child victim under
the age of 18 years or a moderately, severely, or profoundly
mentally retarded person be taken outside the courtroom and
shown in the courtroom by means of a closed circuit
television if:
(1) the testimony is taken during the proceeding;
and
(2) the judge determines that testimony by the
child victim or the moderately, severely, or profoundly
mentally retarded victim in the courtroom will result in
the child or moderately, severely, or profoundly mentally
retarded person suffering serious emotional distress such
that the child or moderately, severely, or profoundly
mentally retarded person cannot reasonably communicate or
that the child or moderately, severely, or profoundly
mentally retarded person will suffer severe emotional
distress that is likely to cause the child or moderately,
severely, or profoundly mentally retarded person to
suffer severe adverse effects.
(b) Only the prosecuting attorney, the attorney for the
defendant, and the judge may question the child or
moderately, severely, or profoundly mentally retarded person.
(c) The operators of the closed circuit television shall
make every effort to be unobtrusive.
(d) Only the following persons may be in the room with
the child or moderately, severely, or profoundly mentally
retarded person when the child or moderately, severely, or
profoundly mentally retarded person testifies by closed
circuit television:
(1) the prosecuting attorney;
(2) the attorney for the defendant;
(3) the judge;
(4) the operators of the closed circuit television
equipment; and
(5) any person or persons whose presence, in the
opinion of the court, contributes to the well-being of
the child or moderately, severely, or profoundly mentally
retarded person, including a person who has dealt with
the child in a therapeutic setting concerning the abuse,
a parent or guardian of the child or moderately,
severely, or profoundly mentally retarded person, and
court security personnel.
(e) During the child's or moderately, severely, or
profoundly mentally retarded person's testimony by closed
circuit television, the defendant shall be in the courtroom
and shall not communicate with the jury if the cause is being
heard before a jury.
(f) The defendant shall be allowed to communicate with
the persons in the room where the child or moderately,
severely, or profoundly mentally retarded person is
testifying by any appropriate electronic method.
(g) The provisions of this Section do not apply if the
defendant represents himself pro se.
(h) This Section may not be interpreted to preclude, for
purposes of identification of a defendant, the presence of
both the victim and the defendant in the courtroom at the
same time.
(i) This Section applies to prosecutions pending on or
commenced on or after the effective date of this amendatory
Act of 1994.
(Source: P.A. 88-674, eff. 12-14-94; 89-428, eff. 12-13-95;
89-462, eff. 5-29-96.)
(725 ILCS 5/115-10) (from Ch. 38, par. 115-10)
Sec. 115-10. Certain hearsay exceptions.
(a) In a prosecution for a physical or sexual act
perpetrated upon or against a child under the age of 13, or a
person who was a moderately, an institutionalized severely,
or profoundly mentally retarded person as defined in this
Code and in Section 2-10.1 of the Criminal Code of 1961 at
the time the act was committed, including but not limited to
prosecutions for violations of Sections 12-13 through 12-16
of the Criminal Code of 1961 and prosecutions for violations
of Sections 10-1, 10-2, 10-3, 10-3.1, 10-4, 10-5, 10-6, 10-7,
11-6, 11-9, 11-11, 11-15.1, 11-17.1, 11-18.1, 11-19.1,
11-19.2, 11-20.1, 11-21, 12-1, 12-2, 12-3, 12-3.2, 12-4,
12-4.1, 12-4.2, 12-4.3, 12-4.7, 12-5, 12-6, 12-6.1, 12-7.1,
12-7.3, 12-7.4, 12-10, 12-11, 12-21.5, 12-21.6 and 12-32 of
the Criminal Code of 1961, the following evidence shall be
admitted as an exception to the hearsay rule:
(1) testimony by the victim of an out of court
statement made by the victim that he or she complained of
such act to another; and
(2) testimony of an out of court statement made by
the victim describing any complaint of such act or matter
or detail pertaining to any act which is an element of an
offense which is the subject of a prosecution for a
sexual or physical act against that victim.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside
the presence of the jury that the time, content, and
circumstances of the statement provide sufficient
safeguards of reliability; and
(2) The child or moderately, institutionalized
severely, or profoundly mentally retarded person either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is the
subject of the statement; and
(3) In a case involving an offense perpetrated
against a child under the age of 13, the out of court
statement was made before the victim attained 13 years of
age or within 3 months after the commission of the
offense, whichever occurs later, but the statement may be
admitted regardless of the age of the victim at the time
of the proceeding.
(c) If a statement is admitted pursuant to this Section,
the court shall instruct the jury that it is for the jury to
determine the weight and credibility to be given the
statement and that, in making the determination, it shall
consider the age and maturity of the child, or the
intellectual capabilities of the moderately,
institutionalized severely, or profoundly mentally retarded
person, the nature of the statement, the circumstances under
which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the
adverse party reasonable notice of his intention to offer the
statement and the particulars of the statement.
(e) Statements described in paragraphs (1) and (2) of
subsection (a) shall not be excluded on the basis that they
were obtained as a result of interviews conducted pursuant to
a protocol adopted by a Child Advocacy Advisory Board as set
forth in subsections (c), (d), and (e) of Section 3 of the
Children's Advocacy Center Act or that an interviewer or
witness to the interview was or is an employee, agent, or
investigator of a State's Attorney's office.
(Source: P.A. 90-656, eff. 7-30-98; 90-786, eff. 1-1-99;
91-357, eff. 7-29-99.)
Passed in the General Assembly May 22, 2001.
Approved August 17, 2001.
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