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91_HB1100enr
HB1100 Enrolled LRB9101204RCpk
1 AN ACT to amend the Criminal Code of 1961 by changing
2 Sections 11-20.1 and 11-20.1A.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Criminal Code of 1961 is amended by
6 changing Sections 11-20.1 and 11-20.1A as follows:
7 (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
8 Sec. 11-20.1. Child pornography.
9 (a) A person commits the offense of child pornography
10 who:
11 (1) films, videotapes, photographs, or otherwise
12 depicts or portrays by means of any similar visual medium
13 or reproduction or depicts by computer any child whom he
14 knows or reasonably should know to be under the age of 18
15 or any institutionalized severely or profoundly mentally
16 retarded person where such child or institutionalized
17 severely or profoundly mentally retarded person is:
18 (i) actually or by simulation engaged in any
19 act of sexual intercourse with any person or animal;
20 or
21 (ii) actually or by simulation engaged in any
22 act of sexual contact involving the sex organs of
23 the child or institutionalized severely or
24 profoundly mentally retarded person and the mouth,
25 anus, or sex organs of another person or animal; or
26 which involves the mouth, anus or sex organs of the
27 child or institutionalized severely or profoundly
28 mentally retarded person and the sex organs of
29 another person or animal; or
30 (iii) actually or by simulation engaged in any
31 act of masturbation; or
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1 (iv) actually or by simulation portrayed as
2 being the object of, or otherwise engaged in, any
3 act of lewd fondling, touching, or caressing
4 involving another person or animal; or
5 (v) actually or by simulation engaged in any
6 act of excretion or urination within a sexual
7 context; or
8 (vi) actually or by simulation portrayed or
9 depicted as bound, fettered, or subject to sadistic,
10 masochistic, or sadomasochistic abuse in any sexual
11 context; or
12 (vii) depicted or portrayed in any pose,
13 posture or setting involving a lewd exhibition of
14 the unclothed genitals, pubic area, buttocks, or, if
15 such person is female, a fully or partially
16 developed breast of the child or other person; or
17 (2) with the knowledge of the nature or content
18 thereof, reproduces, disseminates, offers to disseminate,
19 exhibits or possesses with intent to disseminate any
20 film, videotape, photograph or other similar visual
21 reproduction or depiction by computer of any child or
22 institutionalized severely or profoundly mentally
23 retarded person whom the person knows or reasonably
24 should know to be under the age of 18 or to be an
25 institutionalized severely or profoundly mentally
26 retarded person, engaged in any activity described in
27 subparagraphs (i) through (vii) of paragraph (1) of this
28 subsection; or
29 (3) with knowledge of the subject matter or theme
30 thereof, produces any stage play, live performance, film,
31 videotape or other similar visual portrayal or depiction
32 by computer which includes a child whom the person knows
33 or reasonably should know to be under the age of 18 or an
34 institutionalized severely or profoundly mentally
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1 retarded person engaged in any activity described in
2 subparagraphs (i) through (vii) of paragraph (1) of this
3 subsection; or
4 (4) solicits, uses, persuades, induces, entices, or
5 coerces any child whom he knows or reasonably should know
6 to be under the age of 18 or an institutionalized
7 severely or profoundly mentally retarded person to appear
8 in any stage play, live presentation, film, videotape,
9 photograph or other similar visual reproduction or
10 depiction by computer in which the child or
11 institutionalized severely or profoundly mentally
12 retarded person is or will be depicted, actually or by
13 simulation, in any act, pose or setting described in
14 subparagraphs (i) through (vii) of paragraph (1) of this
15 subsection; or
16 (5) is a parent, step-parent, legal guardian or
17 other person having care or custody of a child whom the
18 person knows or reasonably should know to be under the
19 age of 18 or an institutionalized severely or profoundly
20 mentally retarded person and who knowingly permits,
21 induces, promotes, or arranges for such child or
22 institutionalized severely or profoundly mentally
23 retarded person to appear in any stage play, live
24 performance, film, videotape, photograph or other similar
25 visual presentation, portrayal or simulation or depiction
26 by computer of any act or activity described in
27 subparagraphs (i) through (vii) of paragraph (1) of this
28 subsection; or
29 (6) with knowledge of the nature or content
30 thereof, possesses any film, videotape, photograph or
31 other similar visual reproduction or depiction by
32 computer of any child or institutionalized severely or
33 profoundly mentally retarded person whom the person knows
34 or reasonably should know to be under the age of 18 or to
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1 be an institutionalized severely or profoundly mentally
2 retarded person, engaged in any activity described in
3 subparagraphs (i) through (vii) of paragraph (1) of this
4 subsection; or
5 (7) solicits, uses, persuades, induces, entices, or
6 coerces a person to provide a child under the age of 18
7 or an institutionalized severely or profoundly mentally
8 retarded person to appear in any videotape, photograph,
9 film, stage play, live presentation, or other similar
10 visual reproduction or depiction by computer in which the
11 child or an institutionalized severely or profoundly
12 mentally retarded person will be depicted, actually or by
13 simulation, in any act, pose, or setting described in
14 subparagraphs (i) through (vii) of paragraph (1) of this
15 subsection.
16 (b) (1) It shall be an affirmative defense to a charge
17 of child pornography that the defendant reasonably believed,
18 under all of the circumstances, that the child was 18 years
19 of age or older or that the person was not an
20 institutionalized severely or profoundly mentally retarded
21 person but only where, prior to the act or acts giving rise
22 to a prosecution under this Section, he took some affirmative
23 action or made a bonafide inquiry designed to ascertain
24 whether the child was 18 years of age or older or that the
25 person was not an institutionalized severely or profoundly
26 mentally retarded person and his reliance upon the
27 information so obtained was clearly reasonable.
28 (2) (Blank).
29 (3) The charge of child pornography shall not apply
30 to the performance of official duties by law enforcement
31 or prosecuting officers, court personnel or attorneys,
32 nor to bonafide treatment or professional education
33 programs conducted by licensed physicians, psychologists
34 or social workers.
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1 (4) Possession by the defendant of more than one of
2 the same film, videotape or visual reproduction or
3 depiction by computer in which child pornography is
4 depicted shall raise a rebuttable presumption that the
5 defendant possessed such materials with the intent to
6 disseminate them.
7 (5) The charge of child pornography does not apply
8 to a person who does not voluntarily possess a film,
9 videotape, or visual reproduction or depiction by
10 computer in which child pornography is depicted.
11 Possession is voluntary if the defendant knowingly
12 procures or receives a film, videotape, or visual
13 reproduction or depiction for a sufficient time to be
14 able to terminate his or her possession.
15 (c) Violation of paragraph (1), (4), (5), or (7) of
16 subsection (a) is a Class 1 felony with a mandatory minimum
17 fine of $2,000 and a maximum fine of $100,000. Violation of
18 paragraph (3) of subsection (a) is a Class 1 felony with a
19 mandatory minimum fine of $1500 and a maximum fine of
20 $100,000. Violation of paragraph (2) of subsection (a) is a
21 Class 1 felony with a mandatory minimum fine of $1000 and a
22 maximum fine of $100,000. Violation of paragraph (6) of
23 subsection (a) is a Class 3 felony with a mandatory minimum
24 fine of $1000 and a maximum fine of $100,000.
25 (d) If a person is convicted of a second or subsequent
26 violation of this Section within 10 years of a prior
27 conviction, the court shall order a presentence psychiatric
28 examination of the person. The examiner shall report to the
29 court whether treatment of the person is necessary.
30 (e) Any film, videotape, photograph or other similar
31 visual reproduction or depiction by computer which includes a
32 child under the age of 18 or an institutionalized severely or
33 profoundly mentally retarded person engaged in any activity
34 described in subparagraphs (i) through (vii) or paragraph 1
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1 of subsection (a), and any material or equipment used or
2 intended for use in photographing, filming, printing,
3 producing, reproducing, manufacturing, projecting,
4 exhibiting, depiction by computer, or disseminating such
5 material shall be seized and forfeited in the manner, method
6 and procedure provided by Section 36-1 of this Code for the
7 seizure and forfeiture of vessels, vehicles and aircraft.
8 (e-5) Upon the conclusion of a case brought under this
9 Section, the court shall seal all evidence depicting a victim
10 or witness that is sexually explicit. The evidence may be
11 unsealed and viewed, on a motion of the party seeking to
12 unseal and view the evidence, only for good cause shown and
13 in the discretion of the court. The motion must expressly
14 set forth the purpose for viewing the material. The State's
15 attorney and the victim, if possible, shall be provided
16 reasonable notice of the hearing on the motion to unseal the
17 evidence. Any person entitled to notice of a hearing under
18 this subsection (e-5) may object to the motion.
19 (f) Definitions. For the purposes of this Section:
20 (1) "Disseminate" means (i) to sell, distribute,
21 exchange or transfer possession, whether with or without
22 consideration or (ii) to make a depiction by computer
23 available for distribution or downloading through the
24 facilities of any telecommunications network or through
25 any other means of transferring computer programs or data
26 to a computer;
27 (2) "Produce" means to direct, promote, advertise,
28 publish, manufacture, issue, present or show;
29 (3) "Reproduce" means to make a duplication or
30 copy;
31 (4) "Depict by computer" means to generate or
32 create, or cause to be created or generated, a computer
33 program or data that, after being processed by a computer
34 either alone or in conjunction with one or more computer
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1 programs, results in a visual depiction on a computer
2 monitor, screen, or display.
3 (5) "Depiction by computer" means a computer
4 program or data that, after being processed by a computer
5 either alone or in conjunction with one or more computer
6 programs, results in a visual depiction on a computer
7 monitor, screen, or display.
8 (6) "Computer", "computer program", and "data" have
9 the meanings ascribed to them in Section 16D-2 of this
10 Code.
11 (7) "Child" includes a film, videotape, photograph,
12 or other similar visual medium or reproduction or
13 depiction by computer that is, or appears to be, that of
14 a person, either in part, or in total, under the age of
15 18, regardless of the method by which the film,
16 videotape, photograph, or other similar visual medium or
17 reproduction or depiction by computer is created,
18 adopted, or modified to appear as such. "Child" also
19 includes a film, videotape, photograph, or other similar
20 visual medium or reproduction or depiction by computer
21 that is advertised, promoted, presented, described, or
22 distributed in such a manner that conveys the impression
23 that the film, videotape, photograph, or other similar
24 visual medium or reproduction or depiction by computer is
25 of a person under the age of 18.
26 (Source: P.A. 90-68, eff. 7-8-97; 90-678, eff. 7-31-98;
27 90-786, eff. 1-1-99; revised 9-16-98.)
28 (720 ILCS 5/11-20.1A) (from Ch. 38, par. 11-20.1A)
29 Sec. 11-20.1A. (a) A person who commits the offense of
30 keeping a place of juvenile prostitution, exploitation of a
31 child or child pornography under Sections 11-17.1, 11-19.2 or
32 11-20.1 of this Code, shall forfeit to the State of Illinois:
33 (1) any profits or proceeds and any interest or property
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1 he has acquired or maintained in violation of Sections
2 11-17.1, 11-19.2 or 11-20.1 of this Code that the sentencing
3 court determines, after a forfeiture hearing, to have been
4 acquired or maintained as a result of keeping a place of
5 juvenile prostitution, exploitation of a child or child
6 pornography; and
7 (2) any interest in, security of, claim against, or
8 property or contractual right of any kind affording a source
9 of influence over, any enterprise which he has established,
10 operated, controlled or conducted in violation of Sections
11 11-17.1, 11-19.2 or 11-20.1 of this Code that the sentencing
12 court determines, after a forfeiture hearing, to have been
13 acquired or maintained as a result of keeping a place of
14 juvenile prostitution, exploitation of a child or child
15 pornography.
16 (b) (1) The court shall, upon petition by the Attorney
17 General or State's Attorney at any time following sentencing,
18 conduct a hearing to determine whether any property or
19 property interest is subject to forfeiture under this
20 Section. At the forfeiture hearing the people shall have the
21 burden of establishing, by a preponderance of the evidence,
22 that property or property interests are subject to forfeiture
23 under this Section.
24 (2) In any action brought by the People of the State of
25 Illinois under this Section, wherein any restraining order,
26 injunction or prohibition or any other action in connection
27 with any property or interest subject to forfeiture under
28 this Section is sought, the circuit court presiding over the
29 trial of the person or persons charged with keeping a place
30 of juvenile prostitution, exploitation of a child or child
31 pornography shall first determine whether there is probable
32 cause to believe that the person or persons so charged have
33 committed the offense of keeping a place of juvenile
34 prostitution, exploitation of a child or child pornography
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1 and whether the property or interest is subject to forfeiture
2 pursuant to this Section. In order to make such a
3 determination, prior to entering any such order, the court
4 shall conduct a hearing without a jury, wherein the People
5 shall establish that there is: (i) probable cause that the
6 person or persons so charged have committed the offense of
7 keeping a place of juvenile prostitution, exploitation of a
8 child or child pornography and (ii) probable cause that any
9 property or interest may be subject to forfeiture pursuant to
10 this Section. Such hearing may be conducted simultaneously
11 with a preliminary hearing, if the prosecution is commenced
12 by information or complaint, or by motion of the People, at
13 any stage in the proceedings. The court may accept a finding
14 of probable cause at a preliminary hearing following the
15 filing of an information charging the offense of keeping a
16 place of juvenile prostitution, exploitation of a child or
17 child pornography or the return of an indictment by a grand
18 jury charging the offense of keeping a place of juvenile
19 prostitution, exploitation of a child or child pornography as
20 sufficient evidence of probable cause as provided in item (i)
21 above. Upon such a finding, the circuit court shall enter
22 such restraining order, injunction or prohibition, or shall
23 take such other action in connection with any such property
24 or other interest subject to forfeiture, as is necessary to
25 insure that such property is not removed from the
26 jurisdiction of the court, concealed, destroyed or otherwise
27 disposed of by the owner of that property or interest prior
28 to a forfeiture hearing under this Section. The Attorney
29 General or State's Attorney shall file a certified copy of
30 such restraining order, injunction or other prohibition with
31 the recorder of deeds or registrar of titles of each county
32 where any such property of the defendant may be located. No
33 such injunction, restraining order or other prohibition shall
34 affect the rights of any bona fide purchaser, mortgagee,
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1 judgment creditor or other lienholder arising prior to the
2 date of such filing. The court may, at any time, upon
3 verified petition by the defendant or an innocent owner or
4 innocent bona fide third party lienholder who neither had
5 knowledge of, nor consented to, the illegal act or omission,
6 conduct a hearing to release all or portions of any such
7 property or interest which the court previously determined to
8 be subject to forfeiture or subject to any restraining order,
9 injunction, or prohibition or other action. The court may
10 release such property to the defendant or innocent owner or
11 innocent bona fide third party lienholder who neither had
12 knowledge of, nor consented to, the illegal act or omission
13 for good cause shown and within the sound discretion of the
14 court.
15 A forfeiture under this Section may be commenced by the
16 Attorney General or a State's Attorney.
17 (3) Upon conviction of a person of keeping a place of
18 juvenile prostitution, exploitation of a child or child
19 pornography, the court shall authorize the Attorney General
20 to seize all property or other interest declared forfeited
21 under this Section upon such terms and conditions as the
22 court shall deem proper.
23 (4) The Attorney General is authorized to sell all
24 property forfeited and seized pursuant to this Section,
25 unless such property is required by law to be destroyed or is
26 harmful to the public, and, after the deduction of all
27 requisite expenses of administration and sale, shall
28 distribute the proceeds of such sale, along with any moneys
29 forfeited or seized, in accordance with subsection (c) of
30 this Section.
31 (c) All monies forfeited and the sale proceeds of all
32 other property forfeited and seized under this Section shall
33 be distributed as follows:
34 (1) One-half shall be divided equally among all State
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1 agencies and units of local government whose officers or
2 employees conducted the investigation which resulted in the
3 forfeiture; and
4 (2) One-half shall be deposited in the Violent Crime
5 Victims Assistance Fund.
6 (Source: P.A. 85-1194.)
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