Bill Text: IL HB4837 | 2023-2024 | 103rd General Assembly | Introduced
Bill Title: Amends the Criminal Code of 2012. Provides that for purposes of violating the child pornography law, depicting a person under 18 years of age personally engaging in or personally simulating any act of sexual penetration or sexual conduct includes a representation of a real or fictitious person through use of artificially intelligent software or computer-generated means, who is, or who a reasonable person would regard as being, a real person under 18 years of age, engaging in or simulating any act of sexual penetration or sexual conduct.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-02-07 - Referred to Rules Committee [HB4837 Detail]
Download: Illinois-2023-HB4837-Introduced.html
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1 | AN ACT concerning criminal law.
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2 | Be it enacted by the People of the State of Illinois, | |||||||||||||||||||
3 | represented in the General Assembly:
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4 | Section 5. The Criminal Code of 2012 is amended by | |||||||||||||||||||
5 | changing Section 11-20.1 as follows:
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6 | (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1) | |||||||||||||||||||
7 | Sec. 11-20.1. Child pornography. | |||||||||||||||||||
8 | (a) A person commits child pornography who: | |||||||||||||||||||
9 | (1) films, videotapes, photographs, or otherwise | |||||||||||||||||||
10 | depicts or portrays by means of any similar visual medium | |||||||||||||||||||
11 | or reproduction or depicts by computer any child whom he | |||||||||||||||||||
12 | or she knows or reasonably should know to be under the age | |||||||||||||||||||
13 | of 18 or any person with a severe or profound intellectual | |||||||||||||||||||
14 | disability where such child or person with a severe or | |||||||||||||||||||
15 | profound intellectual disability is: | |||||||||||||||||||
16 | (i) actually or by simulation engaged in any act | |||||||||||||||||||
17 | of sexual penetration or sexual conduct with any | |||||||||||||||||||
18 | person or animal; or | |||||||||||||||||||
19 | (ii) actually or by simulation engaged in any act | |||||||||||||||||||
20 | of sexual penetration or sexual conduct involving the | |||||||||||||||||||
21 | sex organs of the child or person with a severe or | |||||||||||||||||||
22 | profound intellectual disability and the mouth, anus, | |||||||||||||||||||
23 | or sex organs of another person or animal; or which |
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1 | involves the mouth, anus or sex organs of the child or | ||||||
2 | person with a severe or profound intellectual | ||||||
3 | disability and the sex organs of another person or | ||||||
4 | animal; or | ||||||
5 | (iii) actually or by simulation engaged in any act | ||||||
6 | of masturbation; or | ||||||
7 | (iv) actually or by simulation portrayed as being | ||||||
8 | the object of, or otherwise engaged in, any act of lewd | ||||||
9 | fondling, touching, or caressing involving another | ||||||
10 | person or animal; or | ||||||
11 | (v) actually or by simulation engaged in any act | ||||||
12 | of excretion or urination within a sexual context; or | ||||||
13 | (vi) actually or by simulation portrayed or | ||||||
14 | depicted as bound, fettered, or subject to sadistic, | ||||||
15 | masochistic, or sadomasochistic abuse in any sexual | ||||||
16 | context; or | ||||||
17 | (vii) depicted or portrayed in any pose, posture | ||||||
18 | or setting involving a lewd exhibition of the | ||||||
19 | unclothed or transparently clothed genitals, pubic | ||||||
20 | area, buttocks, or, if such person is female, a fully | ||||||
21 | or partially developed breast of the child or other | ||||||
22 | person; or | ||||||
23 | (2) with the knowledge of the nature or content | ||||||
24 | thereof, reproduces, disseminates, offers to disseminate, | ||||||
25 | exhibits or possesses with intent to disseminate any film, | ||||||
26 | videotape, photograph or other similar visual reproduction |
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1 | or depiction by computer of any child or person with a | ||||||
2 | severe or profound intellectual disability whom the person | ||||||
3 | knows or reasonably should know to be under the age of 18 | ||||||
4 | or to be a person with a severe or profound intellectual | ||||||
5 | disability, engaged in any activity described in | ||||||
6 | subparagraphs (i) through (vii) of paragraph (1) of this | ||||||
7 | subsection; or | ||||||
8 | (3) with knowledge of the subject matter or theme | ||||||
9 | thereof, produces any stage play, live performance, film, | ||||||
10 | videotape or other similar visual portrayal or depiction | ||||||
11 | by computer which includes a child whom the person knows | ||||||
12 | or reasonably should know to be under the age of 18 or a | ||||||
13 | person with a severe or profound intellectual disability | ||||||
14 | engaged in any activity described in subparagraphs (i) | ||||||
15 | through (vii) of paragraph (1) of this subsection; or | ||||||
16 | (4) solicits, uses, persuades, induces, entices, or | ||||||
17 | coerces any child whom he or she knows or reasonably | ||||||
18 | should know to be under the age of 18 or a person with a | ||||||
19 | severe or profound intellectual disability to appear in | ||||||
20 | any stage play, live presentation, film, videotape, | ||||||
21 | photograph or other similar visual reproduction or | ||||||
22 | depiction by computer in which the child or person with a | ||||||
23 | severe or profound intellectual disability is or will be | ||||||
24 | depicted, actually or by simulation, in any act, pose or | ||||||
25 | setting described in subparagraphs (i) through (vii) of | ||||||
26 | paragraph (1) of this subsection; or |
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1 | (5) is a parent, step-parent, legal guardian or other | ||||||
2 | person having care or custody of a child whom the person | ||||||
3 | knows or reasonably should know to be under the age of 18 | ||||||
4 | or a person with a severe or profound intellectual | ||||||
5 | disability and who knowingly permits, induces, promotes, | ||||||
6 | or arranges for such child or person with a severe or | ||||||
7 | profound intellectual disability to appear in any stage | ||||||
8 | play, live performance, film, videotape, photograph or | ||||||
9 | other similar visual presentation, portrayal or simulation | ||||||
10 | or depiction by computer of any act or activity described | ||||||
11 | in subparagraphs (i) through (vii) of paragraph (1) of | ||||||
12 | this subsection; or | ||||||
13 | (6) with knowledge of the nature or content thereof, | ||||||
14 | possesses any film, videotape, photograph or other similar | ||||||
15 | visual reproduction or depiction by computer of any child | ||||||
16 | or person with a severe or profound intellectual | ||||||
17 | disability whom the person knows or reasonably should know | ||||||
18 | to be under the age of 18 or to be a person with a severe | ||||||
19 | or profound intellectual disability, engaged in any | ||||||
20 | activity described in subparagraphs (i) through (vii) of | ||||||
21 | paragraph (1) of this subsection; or | ||||||
22 | (7) solicits, or knowingly uses, persuades, induces, | ||||||
23 | entices, or coerces, a person to provide a child under the | ||||||
24 | age of 18 or a person with a severe or profound | ||||||
25 | intellectual disability to appear in any videotape, | ||||||
26 | photograph, film, stage play, live presentation, or other |
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1 | similar visual reproduction or depiction by computer in | ||||||
2 | which the child or person with a severe or profound | ||||||
3 | intellectual disability will be depicted, actually or by | ||||||
4 | simulation, in any act, pose, or setting described in | ||||||
5 | subparagraphs (i) through (vii) of paragraph (1) of this | ||||||
6 | subsection. | ||||||
7 | (a-1) For purposes of paragraphs (1) through (7) of | ||||||
8 | subsection (a), depicting a person under 18 years of age | ||||||
9 | personally engaging in or personally simulating any act of | ||||||
10 | sexual penetration or sexual conduct includes a representation | ||||||
11 | of a real or fictitious person through use of artificially | ||||||
12 | intelligent software or computer-generated means, who is, or | ||||||
13 | who a reasonable person would regard as being, a real person | ||||||
14 | under 18 years of age, engaging in or simulating any act of | ||||||
15 | sexual penetration or sexual conduct. | ||||||
16 | (a-5) The possession of each individual film, videotape, | ||||||
17 | photograph, or other similar visual reproduction or depiction | ||||||
18 | by computer in violation of this Section constitutes a single | ||||||
19 | and separate violation. This subsection (a-5) does not apply | ||||||
20 | to multiple copies of the same film, videotape, photograph, or | ||||||
21 | other similar visual reproduction or depiction by computer | ||||||
22 | that are identical to each other. | ||||||
23 | (b)(1) It shall be an affirmative defense to a charge of | ||||||
24 | child pornography that the defendant reasonably believed, | ||||||
25 | under all of the circumstances, that the child was 18 years of | ||||||
26 | age or older or that the person was not a person with a severe |
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1 | or profound intellectual disability but only where, prior to | ||||||
2 | the act or acts giving rise to a prosecution under this | ||||||
3 | Section, he or she took some affirmative action or made a | ||||||
4 | bonafide inquiry designed to ascertain whether the child was | ||||||
5 | 18 years of age or older or that the person was not a person | ||||||
6 | with a severe or profound intellectual disability and his or | ||||||
7 | her reliance upon the information so obtained was clearly | ||||||
8 | reasonable. | ||||||
9 | (1.5) Telecommunications carriers, commercial mobile | ||||||
10 | service providers, and providers of information services, | ||||||
11 | including, but not limited to, Internet service providers and | ||||||
12 | hosting service providers, are not liable under this Section | ||||||
13 | by virtue of the transmission, storage, or caching of | ||||||
14 | electronic communications or messages of others or by virtue | ||||||
15 | of the provision of other related telecommunications, | ||||||
16 | commercial mobile services, or information services used by | ||||||
17 | others in violation of this Section. | ||||||
18 | (2) (Blank). | ||||||
19 | (3) The charge of child pornography shall not apply to the | ||||||
20 | performance of official duties by law enforcement or | ||||||
21 | prosecuting officers or persons employed by law enforcement or | ||||||
22 | prosecuting agencies, court personnel or attorneys, nor to | ||||||
23 | bonafide treatment or professional education programs | ||||||
24 | conducted by licensed physicians, psychologists or social | ||||||
25 | workers. In any criminal proceeding, any property or material | ||||||
26 | that constitutes child pornography shall remain in the care, |
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1 | custody, and control of either the State or the court. A motion | ||||||
2 | to view the evidence shall comply with subsection (e-5) of | ||||||
3 | this Section. | ||||||
4 | (4) If the defendant possessed more than one of the same | ||||||
5 | film, videotape or visual reproduction or depiction by | ||||||
6 | computer in which child pornography is depicted, then the | ||||||
7 | trier of fact may infer that the defendant possessed such | ||||||
8 | materials with the intent to disseminate them. | ||||||
9 | (5) The charge of child pornography does not apply to a | ||||||
10 | person who does not voluntarily possess a film, videotape, or | ||||||
11 | visual reproduction or depiction by computer in which child | ||||||
12 | pornography is depicted. Possession is voluntary if the | ||||||
13 | defendant knowingly procures or receives a film, videotape, or | ||||||
14 | visual reproduction or depiction for a sufficient time to be | ||||||
15 | able to terminate his or her possession. | ||||||
16 | (6) Any violation of paragraph (1), (2), (3), (4), (5), or | ||||||
17 | (7) of subsection (a) that includes a child engaged in, | ||||||
18 | solicited for, depicted in, or posed in any act of sexual | ||||||
19 | penetration or bound, fettered, or subject to sadistic, | ||||||
20 | masochistic, or sadomasochistic abuse in a sexual context | ||||||
21 | shall be deemed a crime of violence. | ||||||
22 | (c) If the violation does not involve a film, videotape, | ||||||
23 | or other moving depiction, a violation of paragraph (1), (4), | ||||||
24 | (5), or (7) of subsection (a) is a Class 1 felony with a | ||||||
25 | mandatory minimum fine of $2,000 and a maximum fine of | ||||||
26 | $100,000. If the violation involves a film, videotape, or |
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1 | other moving depiction, a violation of paragraph (1), (4), | ||||||
2 | (5), or (7) of subsection (a) is a Class X felony with a | ||||||
3 | mandatory minimum fine of $2,000 and a maximum fine of | ||||||
4 | $100,000. If the violation does not involve a film, videotape, | ||||||
5 | or other moving depiction, a violation of paragraph (3) of | ||||||
6 | subsection (a) is a Class 1 felony with a mandatory minimum | ||||||
7 | fine of $1500 and a maximum fine of $100,000. If the violation | ||||||
8 | involves a film, videotape, or other moving depiction, a | ||||||
9 | violation of paragraph (3) of subsection (a) is a Class X | ||||||
10 | felony with a mandatory minimum fine of $1500 and a maximum | ||||||
11 | fine of $100,000. If the violation does not involve a film, | ||||||
12 | videotape, or other moving depiction, a violation of paragraph | ||||||
13 | (2) of subsection (a) is a Class 1 felony with a mandatory | ||||||
14 | minimum fine of $1000 and a maximum fine of $100,000. If the | ||||||
15 | violation involves a film, videotape, or other moving | ||||||
16 | depiction, a violation of paragraph (2) of subsection (a) is a | ||||||
17 | Class X felony with a mandatory minimum fine of $1000 and a | ||||||
18 | maximum fine of $100,000. If the violation does not involve a | ||||||
19 | film, videotape, or other moving depiction, a violation of | ||||||
20 | paragraph (6) of subsection (a) is a Class 3 felony with a | ||||||
21 | mandatory minimum fine of $1000 and a maximum fine of | ||||||
22 | $100,000. If the violation involves a film, videotape, or | ||||||
23 | other moving depiction, a violation of paragraph (6) of | ||||||
24 | subsection (a) is a Class 2 felony with a mandatory minimum | ||||||
25 | fine of $1000 and a maximum fine of $100,000. | ||||||
26 | (c-5) Where the child depicted is under the age of 13, a |
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1 | violation of paragraph (1), (2), (3), (4), (5), or (7) of | ||||||
2 | subsection (a) is a Class X felony with a mandatory minimum | ||||||
3 | fine of $2,000 and a maximum fine of $100,000. Where the child | ||||||
4 | depicted is under the age of 13, a violation of paragraph (6) | ||||||
5 | of subsection (a) is a Class 2 felony with a mandatory minimum | ||||||
6 | fine of $1,000 and a maximum fine of $100,000. Where the child | ||||||
7 | depicted is under the age of 13, a person who commits a | ||||||
8 | violation of paragraph (1), (2), (3), (4), (5), or (7) of | ||||||
9 | subsection (a) where the defendant has previously been | ||||||
10 | convicted under the laws of this State or any other state of | ||||||
11 | the offense of child pornography, aggravated child | ||||||
12 | pornography, aggravated criminal sexual abuse, aggravated | ||||||
13 | criminal sexual assault, predatory criminal sexual assault of | ||||||
14 | a child, or any of the offenses formerly known as rape, deviate | ||||||
15 | sexual assault, indecent liberties with a child, or aggravated | ||||||
16 | indecent liberties with a child where the victim was under the | ||||||
17 | age of 18 years or an offense that is substantially equivalent | ||||||
18 | to those offenses, is guilty of a Class X felony for which the | ||||||
19 | person shall be sentenced to a term of imprisonment of not less | ||||||
20 | than 9 years with a mandatory minimum fine of $2,000 and a | ||||||
21 | maximum fine of $100,000. Where the child depicted is under | ||||||
22 | the age of 13, a person who commits a violation of paragraph | ||||||
23 | (6) of subsection (a) where the defendant has previously been | ||||||
24 | convicted under the laws of this State or any other state of | ||||||
25 | the offense of child pornography, aggravated child | ||||||
26 | pornography, aggravated criminal sexual abuse, aggravated |
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1 | criminal sexual assault, predatory criminal sexual assault of | ||||||
2 | a child, or any of the offenses formerly known as rape, deviate | ||||||
3 | sexual assault, indecent liberties with a child, or aggravated | ||||||
4 | indecent liberties with a child where the victim was under the | ||||||
5 | age of 18 years or an offense that is substantially equivalent | ||||||
6 | to those offenses, is guilty of a Class 1 felony with a | ||||||
7 | mandatory minimum fine of $1,000 and a maximum fine of | ||||||
8 | $100,000. The issue of whether the child depicted is under the | ||||||
9 | age of 13 is an element of the offense to be resolved by the | ||||||
10 | trier of fact. | ||||||
11 | (d) If a person is convicted of a second or subsequent | ||||||
12 | violation of this Section within 10 years of a prior | ||||||
13 | conviction, the court shall order a presentence psychiatric | ||||||
14 | examination of the person. The examiner shall report to the | ||||||
15 | court whether treatment of the person is necessary. | ||||||
16 | (e) Any film, videotape, photograph or other similar | ||||||
17 | visual reproduction or depiction by computer which includes a | ||||||
18 | child under the age of 18 or a person with a severe or profound | ||||||
19 | intellectual disability engaged in any activity described in | ||||||
20 | subparagraphs (i) through (vii) or paragraph 1 of subsection | ||||||
21 | (a), and any material or equipment used or intended for use in | ||||||
22 | photographing, filming, printing, producing, reproducing, | ||||||
23 | manufacturing, projecting, exhibiting, depiction by computer, | ||||||
24 | or disseminating such material shall be seized and forfeited | ||||||
25 | in the manner, method and procedure provided by Section 36-1 | ||||||
26 | of this Code for the seizure and forfeiture of vessels, |
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1 | vehicles and aircraft. | ||||||
2 | In addition, any person convicted under this Section is | ||||||
3 | subject to the property forfeiture provisions set forth in | ||||||
4 | Article 124B of the Code of Criminal Procedure of 1963. | ||||||
5 | (e-5) Upon the conclusion of a case brought under this | ||||||
6 | Section, the court shall seal all evidence depicting a victim | ||||||
7 | or witness that is sexually explicit. The evidence may be | ||||||
8 | unsealed and viewed, on a motion of the party seeking to unseal | ||||||
9 | and view the evidence, only for good cause shown and in the | ||||||
10 | discretion of the court. The motion must expressly set forth | ||||||
11 | the purpose for viewing the material. The State's attorney and | ||||||
12 | the victim, if possible, shall be provided reasonable notice | ||||||
13 | of the hearing on the motion to unseal the evidence. Any person | ||||||
14 | entitled to notice of a hearing under this subsection (e-5) | ||||||
15 | may object to the motion. | ||||||
16 | (f) Definitions. For the purposes of this Section: | ||||||
17 | (1) "Disseminate" means (i) to sell, distribute, | ||||||
18 | exchange or transfer possession, whether with or without | ||||||
19 | consideration or (ii) to make a depiction by computer | ||||||
20 | available for distribution or downloading through the | ||||||
21 | facilities of any telecommunications network or through | ||||||
22 | any other means of transferring computer programs or data | ||||||
23 | to a computer. | ||||||
24 | (2) "Produce" means to direct, promote, advertise, | ||||||
25 | publish, manufacture, issue, present or show. | ||||||
26 | (3) "Reproduce" means to make a duplication or copy. |
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1 | (4) "Depict by computer" means to generate or create, | ||||||
2 | or cause to be created or generated, a computer program or | ||||||
3 | data that, after being processed by a computer either | ||||||
4 | alone or in conjunction with one or more computer | ||||||
5 | programs, results in a visual depiction on a computer | ||||||
6 | monitor, screen, or display. | ||||||
7 | (5) "Depiction by computer" means a computer program | ||||||
8 | or data that, after being processed by a computer either | ||||||
9 | alone or in conjunction with one or more computer | ||||||
10 | programs, results in a visual depiction on a computer | ||||||
11 | monitor, screen, or display. | ||||||
12 | (6) "Computer", "computer program", and "data" have | ||||||
13 | the meanings ascribed to them in Section 17.05 of this | ||||||
14 | Code. | ||||||
15 | (7) For the purposes of this Section, "child | ||||||
16 | pornography" includes a film, videotape, photograph, or | ||||||
17 | other similar visual medium or reproduction or depiction | ||||||
18 | by computer that is, or appears to be, that of a person, | ||||||
19 | either in part, or in total, under the age of 18 or a | ||||||
20 | person with a severe or profound intellectual disability, | ||||||
21 | regardless of the method by which the film, videotape, | ||||||
22 | photograph, or other similar visual medium or reproduction | ||||||
23 | or depiction by computer is created, adopted, or modified | ||||||
24 | to appear as such. "Child pornography" also includes a | ||||||
25 | film, videotape, photograph, or other similar visual | ||||||
26 | medium or reproduction or depiction by computer that is |
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1 | advertised, promoted, presented, described, or distributed | ||||||
2 | in such a manner that conveys the impression that the | ||||||
3 | film, videotape, photograph, or other similar visual | ||||||
4 | medium or reproduction or depiction by computer is of a | ||||||
5 | person under the age of 18 or a person with a severe or | ||||||
6 | profound intellectual disability. | ||||||
7 | (g) Re-enactment; findings; purposes. | ||||||
8 | (1) The General Assembly finds and declares that: | ||||||
9 | (i) Section 50-5 of Public Act 88-680, effective | ||||||
10 | January 1, 1995, contained provisions amending the | ||||||
11 | child pornography statute, Section 11-20.1 of the | ||||||
12 | Criminal Code of 1961. Section 50-5 also contained | ||||||
13 | other provisions. | ||||||
14 | (ii) In addition, Public Act 88-680 was entitled | ||||||
15 | "AN ACT to create a Safe Neighborhoods Law". (A) | ||||||
16 | Article 5 was entitled JUVENILE JUSTICE and amended | ||||||
17 | the Juvenile Court Act of 1987. (B) Article 15 was | ||||||
18 | entitled GANGS and amended various provisions of the | ||||||
19 | Criminal Code of 1961 and the Unified Code of | ||||||
20 | Corrections. (C) Article 20 was entitled ALCOHOL ABUSE | ||||||
21 | and amended various provisions of the Illinois Vehicle | ||||||
22 | Code. (D) Article 25 was entitled DRUG ABUSE and | ||||||
23 | amended the Cannabis Control Act and the Illinois | ||||||
24 | Controlled Substances Act. (E) Article 30 was entitled | ||||||
25 | FIREARMS and amended the Criminal Code of 1961 and the | ||||||
26 | Code of Criminal Procedure of 1963. (F) Article 35 |
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1 | amended the Criminal Code of 1961, the Rights of Crime | ||||||
2 | Victims and Witnesses Act, and the Unified Code of | ||||||
3 | Corrections. (G) Article 40 amended the Criminal Code | ||||||
4 | of 1961 to increase the penalty for compelling | ||||||
5 | organization membership of persons. (H) Article 45 | ||||||
6 | created the Secure Residential Youth Care Facility | ||||||
7 | Licensing Act and amended the State Finance Act, the | ||||||
8 | Juvenile Court Act of 1987, the Unified Code of | ||||||
9 | Corrections, and the Private Correctional Facility | ||||||
10 | Moratorium Act. (I) Article 50 amended the WIC Vendor | ||||||
11 | Management Act, the Firearm Owners Identification Card | ||||||
12 | Act, the Juvenile Court Act of 1987, the Criminal Code | ||||||
13 | of 1961, the Wrongs to Children Act, and the Unified | ||||||
14 | Code of Corrections. | ||||||
15 | (iii) On September 22, 1998, the Third District | ||||||
16 | Appellate Court in People v. Dainty, 701 N.E. 2d 118, | ||||||
17 | ruled that Public Act 88-680 violates the single | ||||||
18 | subject clause of the Illinois Constitution (Article | ||||||
19 | IV, Section 8 (d)) and was unconstitutional in its | ||||||
20 | entirety. As of the time this amendatory Act of 1999 | ||||||
21 | was prepared, People v. Dainty was still subject to | ||||||
22 | appeal. | ||||||
23 | (iv) Child pornography is a vital concern to the | ||||||
24 | people of this State and the validity of future | ||||||
25 | prosecutions under the child pornography statute of | ||||||
26 | the Criminal Code of 1961 is in grave doubt. |
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