Bill Text: IL HB2585 | 2011-2012 | 97th General Assembly | Amended

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Bill Title: Amends the Unified Code of Corrections. Makes a technical change in a Section concerning receiving procedures.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Failed) 2013-01-08 - Session Sine Die [HB2585 Detail]

Download: Illinois-2011-HB2585-Amended.html

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Rep. Dwight Kay

Filed: 3/29/2011

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AMENDMENT TO HOUSE BILL 2585
AMENDMENT NO. ______. Amend House Bill 2585 by replacing
everything after the enacting clause with the following:
"Section 5. The Criminal Code of 1961 is amended by
changing Section 11-20.1 as follows:
(720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
(Text of Section after amendment by P.A. 96-1551)
Sec. 11-20.1. Child pornography.
(a) A person commits 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 or
she knows or reasonably should know to be under the age of
18 and at least 13 years of age or any severely or
profoundly mentally retarded person where such child or
severely or profoundly mentally retarded person is:

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(i) actually or by simulation engaged in any act of
sexual penetration or sexual conduct with any person or
animal; or
(ii) actually or by simulation engaged in any act
of sexual penetration or sexual conduct involving the
sex organs of the child or 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 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 or
transparently clothed genitals, pubic area, buttocks,

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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 severely or
profoundly mentally retarded person whom the person knows
or reasonably should know to be under the age of 18 and at
least 13 years of age or to be a 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 and at
least 13 years of age or a 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 or she knows or reasonably should
know to be under the age of 18 and at least 13 years of age
or a severely or profoundly mentally retarded person to

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appear in any stage play, live presentation, film,
videotape, photograph or other similar visual reproduction
or depiction by computer in which the child or 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
and at least 13 years of age or a severely or profoundly
mentally retarded person and who knowingly permits,
induces, promotes, or arranges for such child or 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 severely or profoundly mentally retarded person whom the
person knows or reasonably should know to be under the age
of 18 and at least 13 years of age or to be a severely or
profoundly mentally retarded person, engaged in any

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activity described in subparagraphs (i) through (vii) of
paragraph (1) of this subsection; or
(7) solicits, or knowingly uses, persuades, induces,
entices, or coerces, a person to provide a child under the
age of 18 and at least 13 years of age or a 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 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 severely or
profoundly mentally retarded person but only where, prior
to the act or acts giving rise to a prosecution under this
Section, he or she 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
severely or profoundly mentally retarded person and his or
her reliance upon the information so obtained was clearly
reasonable.
(2) (Blank).

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(3) The charge of child pornography shall not apply to
the performance of official duties by law enforcement or
prosecuting officers or persons employed by law
enforcement or prosecuting agencies, court personnel or
attorneys, nor to bonafide treatment or professional
education programs conducted by licensed physicians,
psychologists or social workers.
(4) (Blank). If the defendant possessed more than one
of the same film, videotape or visual reproduction or
depiction by computer in which child pornography is
depicted, then the trier of fact may infer 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.
(6) Any violation of paragraph (1), (2), (3), (4), (5),
or (7) of subsection (a) that includes a child engaged in,
solicited for, depicted in, or posed in any act of sexual
penetration or bound, fettered, or subject to sadistic,
masochistic, or sadomasochistic abuse in a sexual context

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shall be deemed a crime of violence.
(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. Violation of paragraph (6) of
subsection (a) is a Class X felony for which the defendant
shall be sentenced to a term of imprisonment of not less than 9
years and not more than 40 years if the defendant possessed
more than one of the same film, videotape, or visual
reproduction or depiction by computer in which child
pornography is depicted.
(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 and at least 13 years of age or a severely
or profoundly mentally retarded person engaged in any activity

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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.
In addition, any person convicted under this Section is
subject to the property forfeiture provisions set forth in
Article 124B of the Code of Criminal Procedure of 1963.
(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

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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) For the purposes of this Section, "child
pornography" 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 and at

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least 13 years of age or a severely or profoundly mentally
retarded person, 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 pornography"
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 and at least 13
years of age or a severely or profoundly mentally retarded
person.
(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

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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

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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

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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. 96-292, eff. 1-1-10; 96-712, eff. 1-1-10;
96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11.)".