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92nd General Assembly

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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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