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(720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
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 or any person with a severe or profound intellectual
disability where such child or person with a severe or
profound intellectual disability is:
(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 person with a severe or
profound intellectual disability 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
person with a severe or profound intellectual
disability 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, 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 person with a
severe or profound intellectual disability whom the person
knows or reasonably should know to be under the age of 18
or to be a person with a severe or profound intellectual
disability, 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
person with a severe or profound intellectual disability
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 or a person with a
severe or profound intellectual disability 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 person with a
severe or profound intellectual disability 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 person with a severe or profound intellectual
disability and who knowingly permits, induces, promotes,
or arranges for such child or person with a severe or
profound intellectual disability 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 person with a severe or profound intellectual
disability whom the person knows or reasonably should know
to be under the age of 18 or to be a person with a severe
or profound intellectual disability, engaged in any
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 or a person with a severe or profound
intellectual disability 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 person with a severe or profound
intellectual disability 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.
(a-5) The possession of each individual film, videotape,
photograph, or other similar visual reproduction or depiction
by computer in violation of this Section constitutes a single
and separate violation. This subsection (a-5) does not apply
to multiple copies of the same film, videotape, photograph, or
other similar visual reproduction or depiction by computer
that are identical to each other.
(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 person with a severe
or profound intellectual disability 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 person
with a severe or profound intellectual disability and his or
her reliance upon the information so obtained was clearly
reasonable.
(1.5) Telecommunications carriers, commercial mobile
service providers, and providers of information services,
including, but not limited to, Internet service providers and
hosting service providers, are not liable under this Section
by virtue of the transmission, storage, or caching of
electronic communications or messages of others or by virtue
of the provision of other related telecommunications,
commercial mobile services, or information services used by
others in violation of this Section.
(2) (Blank).
(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. In any criminal proceeding, any property or material
that constitutes child pornography shall remain in the care,
custody, and control of either the State or the court. A motion
to view the evidence shall comply with subsection (e-5) of
this Section.
(4) 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
shall be deemed a crime of violence.
© If the violation does not involve a film, videotape,
or other moving depiction, a 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. If the violation involves a film, videotape, or
other moving depiction, a violation of paragraph (1), (4),
(5), or (7) of subsection (a) is a Class X felony with a
mandatory minimum fine of $2,000 and a maximum fine of
$100,000. If the violation does not involve a film, videotape,
or other moving depiction, a 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. If the violation
involves a film, videotape, or other moving depiction, a
violation of paragraph (3) of subsection (a) is a Class X
felony with a mandatory minimum fine of $1500 and a maximum
fine of $100,000. If the violation does not involve a film,
videotape, or other moving depiction, a 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. If the
violation involves a film, videotape, or other moving
depiction, a violation of paragraph (2) of subsection (a) is a
Class X felony with a mandatory minimum fine of $1000 and a
maximum fine of $100,000. If the violation does not involve a
film, videotape, or other moving depiction, a 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. If the violation involves a film, videotape, or
other moving depiction, a violation of paragraph (6) of
subsection (a) is a Class 2 felony with a mandatory minimum
fine of $1000 and a maximum fine of $100,000.
(c-5) Where the child depicted is under the age of 13, a
violation of paragraph (1), (2), (3), (4), (5), or (7) of
subsection (a) is a Class X felony with a mandatory minimum
fine of $2,000 and a maximum fine of $100,000. Where the child
depicted is under the age of 13, a violation of paragraph (6)
of subsection (a) is a Class 2 felony with a mandatory minimum
fine of $1,000 and a maximum fine of $100,000. Where the child
depicted is under the age of 13, a person who commits a
violation of paragraph (1), (2), (3), (4), (5), or (7) of
subsection (a) where the defendant has previously been
convicted under the laws of this State or any other state of
the offense of child pornography, aggravated child
pornography, aggravated criminal sexual abuse, aggravated
criminal sexual assault, predatory criminal sexual assault of
a child, or any of the offenses formerly known as rape, deviate
sexual assault, indecent liberties with a child, or aggravated
indecent liberties with a child where the victim was under the
age of 18 years or an offense that is substantially equivalent
to those offenses, is guilty of a Class X felony for which the
person shall be sentenced to a term of imprisonment of not less
than 9 years with a mandatory minimum fine of $2,000 and a
maximum fine of $100,000. Where the child depicted is under
the age of 13, a person who commits a violation of paragraph
(6) of subsection (a) where the defendant has previously been
convicted under the laws of this State or any other state of
the offense of child pornography, aggravated child
pornography, aggravated criminal sexual abuse, aggravated
criminal sexual assault, predatory criminal sexual assault of
a child, or any of the offenses formerly known as rape, deviate
sexual assault, indecent liberties with a child, or aggravated
indecent liberties with a child where the victim was under the
age of 18 years or an offense that is substantially equivalent
to those offenses, is guilty of a Class 1 felony with a
mandatory minimum fine of $1,000 and a maximum fine of
$100,000. The issue of whether the child depicted is under the
age of 13 is an element of the offense to be resolved by the
trier of fact.
(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 person with a severe or profound
intellectual disability 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.
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
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 17.05 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 or a
person with a severe or profound intellectual disability,
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 or a person with a severe or
profound intellectual disability. "Child pornography"
includes the depiction of a part of an actual child under
the age of 18 who, by manipulation, creation, or
modification, appears to be engaged in any activity
described in subparagraphs (i) through (vii) of paragraph
(1) of subsection (a). "Child pornography" does not
include images or materials in which the creator of the
image or materials is the sole subject of the depiction.
(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. © 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. 101-87, eff. 1-1-20; 102-567, eff. 1-1-22.)
(720 ILCS 5/11-20.4 new)
Sec. 11-20.4. Obscene depiction of a purported child.
(a) In this Section:
"Obscene depiction" means a visual representation of
any kind, including an image, video, or computer-generated
image or video, whether made, produced, or altered by
electronic, mechanical, or other means, that:
(i) the average person, applying contemporary
adult community standards, would find that, taken as a
whole, it appeals to the prurient interest;
(ii) the average person, applying contemporary
adult community standards, would find that it depicts
or describes, in a patently offensive way, sexual acts
or sadomasochistic sexual acts, whether normal or
perverted, actual or simulated, or masturbation,
excretory functions, or lewd exhibition of the
unclothed or transparently clothed genitals, pubic
area, buttocks or, if such person is a female, the
fully or partially developed breast of the child or
other person; and
(iii) taken as a whole, it lacks serious literary,
artistic, political, or scientific value.
"Purported child" means a visual representation that
appears to depict a child under the age of 18 but may or
may not depict an actual child under the age of 18.
(b) A person commits obscene depiction of a purported
child when, with knowledge of the nature or content thereof,
the person:
(1) receives, obtains, or accesses in any way with the
intent to view, any obscene depiction of a purported
child; or
(2) reproduces, disseminates, offers to disseminate,
exhibits, or possesses with intent to disseminate, any
obscene depiction of a purported child.
© A violation of paragraph (1) of subsection (b) is a
Class 3 felony, and a second or subsequent offense is a Class 2
felony. A violation of paragraph (2) of subsection (b) is a
Class 1 felony, and a second or subsequent offense is a Class X
felony.
(d) If the age of the purported child depicted is under the
age of 13, a violation of paragraph (1) of subsection (b) is a
Class 2 felony, and a second or subsequent offense is a Class 1
felony. If the age of the purported child depicted is under the
age of 13, a violation of paragraph (2) of subsection (b) is a
Class X felony, and a second or subsequent offense is a Class X
felony for which the person shall be sentenced to a term of
imprisonment of not less than 9 years.
(e) Nothing in this Section shall be construed to impose
liability upon the following entities solely as a result of
content or information provided by another person:
(1) an interactive computer service, as defined in 47
U.S.C. 230(f)(2);
(2) a provider of public mobile services or private
radio services, as defined in Section 13-214 of the Public
Utilities Act; or
(3) a telecommunications network or broadband
provider.
(f) A person convicted under this Section is subject to
the forfeiture provisions in Article 124B of the Code of
Criminal Procedure of 1963.
(720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
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 or any person with a severe or profound intellectual
disability where such child or person with a severe or
profound intellectual disability is:
(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 person with a severe or
profound intellectual disability 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
person with a severe or profound intellectual
disability 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, 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 person with a
severe or profound intellectual disability whom the person
knows or reasonably should know to be under the age of 18
or to be a person with a severe or profound intellectual
disability, 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
person with a severe or profound intellectual disability
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 or a person with a
severe or profound intellectual disability 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 person with a
severe or profound intellectual disability 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 person with a severe or profound intellectual
disability and who knowingly permits, induces, promotes,
or arranges for such child or person with a severe or
profound intellectual disability 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 person with a severe or profound intellectual
disability whom the person knows or reasonably should know
to be under the age of 18 or to be a person with a severe
or profound intellectual disability, engaged in any
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 or a person with a severe or profound
intellectual disability 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 person with a severe or profound
intellectual disability 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.
(a-5) The possession of each individual film, videotape,
photograph, or other similar visual reproduction or depiction
by computer in violation of this Section constitutes a single
and separate violation. This subsection (a-5) does not apply
to multiple copies of the same film, videotape, photograph, or
other similar visual reproduction or depiction by computer
that are identical to each other.
(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 person with a severe
or profound intellectual disability 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 person
with a severe or profound intellectual disability and his or
her reliance upon the information so obtained was clearly
reasonable.
(1.5) Telecommunications carriers, commercial mobile
service providers, and providers of information services,
including, but not limited to, Internet service providers and
hosting service providers, are not liable under this Section
by virtue of the transmission, storage, or caching of
electronic communications or messages of others or by virtue
of the provision of other related telecommunications,
commercial mobile services, or information services used by
others in violation of this Section.
(2) (Blank).
(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. In any criminal proceeding, any property or material
that constitutes child pornography shall remain in the care,
custody, and control of either the State or the court. A motion
to view the evidence shall comply with subsection (e-5) of
this Section.
(4) 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
shall be deemed a crime of violence.
© If the violation does not involve a film, videotape,
or other moving depiction, a 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. If the violation involves a film, videotape, or
other moving depiction, a violation of paragraph (1), (4),
(5), or (7) of subsection (a) is a Class X felony with a
mandatory minimum fine of $2,000 and a maximum fine of
$100,000. If the violation does not involve a film, videotape,
or other moving depiction, a 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. If the violation
involves a film, videotape, or other moving depiction, a
violation of paragraph (3) of subsection (a) is a Class X
felony with a mandatory minimum fine of $1500 and a maximum
fine of $100,000. If the violation does not involve a film,
videotape, or other moving depiction, a 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. If the
violation involves a film, videotape, or other moving
depiction, a violation of paragraph (2) of subsection (a) is a
Class X felony with a mandatory minimum fine of $1000 and a
maximum fine of $100,000. If the violation does not involve a
film, videotape, or other moving depiction, a 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. If the violation involves a film, videotape, or
other moving depiction, a violation of paragraph (6) of
subsection (a) is a Class 2 felony with a mandatory minimum
fine of $1000 and a maximum fine of $100,000.
(c-5) Where the child depicted is under the age of 13, a
violation of paragraph (1), (2), (3), (4), (5), or (7) of
subsection (a) is a Class X felony with a mandatory minimum
fine of $2,000 and a maximum fine of $100,000. Where the child
depicted is under the age of 13, a violation of paragraph (6)
of subsection (a) is a Class 2 felony with a mandatory minimum
fine of $1,000 and a maximum fine of $100,000. Where the child
depicted is under the age of 13, a person who commits a
violation of paragraph (1), (2), (3), (4), (5), or (7) of
subsection (a) where the defendant has previously been
convicted under the laws of this State or any other state of
the offense of child pornography, aggravated child
pornography, aggravated criminal sexual abuse, aggravated
criminal sexual assault, predatory criminal sexual assault of
a child, or any of the offenses formerly known as rape, deviate
sexual assault, indecent liberties with a child, or aggravated
indecent liberties with a child where the victim was under the
age of 18 years or an offense that is substantially equivalent
to those offenses, is guilty of a Class X felony for which the
person shall be sentenced to a term of imprisonment of not less
than 9 years with a mandatory minimum fine of $2,000 and a
maximum fine of $100,000. Where the child depicted is under
the age of 13, a person who commits a violation of paragraph
(6) of subsection (a) where the defendant has previously been
convicted under the laws of this State or any other state of
the offense of child pornography, aggravated child
pornography, aggravated criminal sexual abuse, aggravated
criminal sexual assault, predatory criminal sexual assault of
a child, or any of the offenses formerly known as rape, deviate
sexual assault, indecent liberties with a child, or aggravated
indecent liberties with a child where the victim was under the
age of 18 years or an offense that is substantially equivalent
to those offenses, is guilty of a Class 1 felony with a
mandatory minimum fine of $1,000 and a maximum fine of
$100,000. The issue of whether the child depicted is under the
age of 13 is an element of the offense to be resolved by the
trier of fact.
(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 person with a severe or profound
intellectual disability 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.
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
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 17.05 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 or a
person with a severe or profound intellectual disability,
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 or a person with a severe or
profound intellectual disability. "Child pornography"
includes the depiction of a part of an actual child under
the age of 18 who, by manipulation, creation, or
modification, appears to be engaged in any activity
described in subparagraphs (i) through (vii) of paragraph
(1) of subsection (a). "Child pornography" does not
include images or materials in which the creator of the
image or materials is the sole subject of the depiction.
(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. © 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. 101-87, eff. 1-1-20; 102-567, eff. 1-1-22.)
(720 ILCS 5/11-20.4 new)
Sec. 11-20.4. Obscene depiction of a purported child.
(a) In this Section:
"Obscene depiction" means a visual representation of
any kind, including an image, video, or computer-generated
image or video, whether made, produced, or altered by
electronic, mechanical, or other means, that:
(i) the average person, applying contemporary
adult community standards, would find that, taken as a
whole, it appeals to the prurient interest;
(ii) the average person, applying contemporary
adult community standards, would find that it depicts
or describes, in a patently offensive way, sexual acts
or sadomasochistic sexual acts, whether normal or
perverted, actual or simulated, or masturbation,
excretory functions, or lewd exhibition of the
unclothed or transparently clothed genitals, pubic
area, buttocks or, if such person is a female, the
fully or partially developed breast of the child or
other person; and
(iii) taken as a whole, it lacks serious literary,
artistic, political, or scientific value.
"Purported child" means a visual representation that
appears to depict a child under the age of 18 but may or
may not depict an actual child under the age of 18.
(b) A person commits obscene depiction of a purported
child when, with knowledge of the nature or content thereof,
the person:
(1) receives, obtains, or accesses in any way with the
intent to view, any obscene depiction of a purported
child; or
(2) reproduces, disseminates, offers to disseminate,
exhibits, or possesses with intent to disseminate, any
obscene depiction of a purported child.
© A violation of paragraph (1) of subsection (b) is a
Class 3 felony, and a second or subsequent offense is a Class 2
felony. A violation of paragraph (2) of subsection (b) is a
Class 1 felony, and a second or subsequent offense is a Class X
felony.
(d) If the age of the purported child depicted is under the
age of 13, a violation of paragraph (1) of subsection (b) is a
Class 2 felony, and a second or subsequent offense is a Class 1
felony. If the age of the purported child depicted is under the
age of 13, a violation of paragraph (2) of subsection (b) is a
Class X felony, and a second or subsequent offense is a Class X
felony for which the person shall be sentenced to a term of
imprisonment of not less than 9 years.
(e) Nothing in this Section shall be construed to impose
liability upon the following entities solely as a result of
content or information provided by another person:
(1) an interactive computer service, as defined in 47
U.S.C. 230(f)(2);
(2) a provider of public mobile services or private
radio services, as defined in Section 13-214 of the Public
Utilities Act; or
(3) a telecommunications network or broadband
provider.
(f) A person convicted under this Section is subject to
the forfeiture provisions in Article 124B of the Code of
Criminal Procedure of 1963.
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