HB 4877 — CRIM CD-CHILD PORNOGRAPHY

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Bob Biggins - Jim Durkin - James H.

Meyer - RenØe Kosel - Brent Hassert, et al.

SYNOPSIS AS INTRODUCED:

ILCS 5/11-20.1 from Ch.

38, par.

11-20.1 Amends the Criminal Code of 1961 in relation to child pornography.

Provides that the commission of the offense by filming or videotaping or creating a moving image or possession of such films, videotapes, or moving images is a felony one class higher than photographing or possessing photographs of child pornography.

LRB095 12808 RLC 38200 b CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY A BILL FOR HB4877 LRB095 12808 RLC 38200 b AN ACT concerning criminal law.

or which involves HB4877 Engrossed - 2 - LRB095 12808 RLC 38200 b 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 (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 HB4877 Engrossed - 3 - LRB095 12808 RLC 38200 b or reasonably should know to be under the age of 18 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 (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 severely or profoundly mentally retarded person and HB4877 Engrossed - 4 - LRB095 12808 RLC 38200 b 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;

(b) (1) It shall be an affirmative defense to a charge of HB4877 Engrossed - 5 - LRB095 12808 RLC 38200 b 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 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 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, except for willful and wanton misconduct, 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.

(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 HB4877 Engrossed - 6 - LRB095 12808 RLC 38200 b attorneys, nor to bonafide treatment or professional education programs conducted by licensed physicians, psychologists or social workers.

(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 HB4877 - 6 - LRB095 12808 RLC 38200 b child pornography is depicted.

If the violation does not involve a film, videotape, or other moving depiction, a violation Violation of paragraph (3) of subsection HB4877 Engrossed - 7 - LRB095 12808 RLC 38200 b (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 (2) of subsection (a) is a Class X HB4877 - 7 - LRB095 12808 RLC 38200 b felony with a mandatory minimum fine of $1000 and a maximum fine of $100,000.

(e) Any film, videotape, photograph or other similar visual HB4877 Engrossed - 8 - LRB095 12808 RLC 38200 b reproduction or depiction by computer which includes a child under the age of 18 or a severely or profoundly mentally retarded person engaged in any activity described in subparagraphs (i) through (vii) or paragraph 1 of subsection (a), and any material or equipment used or intended for use in photographing, filming, printing, producing, reproducing, manufacturing, projecting, exhibiting, depiction by computer, or disseminating such material shall be seized and forfeited in the manner, method and procedure provided by Section 36-1 of this Code for the seizure and forfeiture of vessels, vehicles and aircraft.

HB4877 - 8 - LRB095 12808 RLC 38200 b (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.

(1) "Disseminate" means (i) to sell, distribute, exchange or transfer possession, whether with or without consideration or (ii) to make a depiction by computer HB4877 Engrossed - 9 - LRB095 12808 RLC 38200 b 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.

(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, HB4877 - 9 - LRB095 12808 RLC 38200 b results in a visual depiction on a computer monitor, screen, or display.

(7) "Child" includes a film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer that is, or appears to be, that of a person, either in part, or in total, under the age of 18, regardless of the method by which the film, videotape, HB4877 Engrossed - 10 - LRB095 12808 RLC 38200 b photograph, or other similar visual medium or reproduction or depiction by computer is created, adopted, or modified to appear as such.

(8) "Sexual penetration" and "sexual conduct" have the HB4877 - 10 - LRB095 12808 RLC 38200 b meanings ascribed to them in Section 12-12 of this Code.

(C) Article 20 was entitled ALCOHOL ABUSE and amended HB4877 Engrossed - 11 - LRB095 12808 RLC 38200 b various provisions of the Illinois Vehicle Code.

(H) Article 45 created the HB4877 - 11 - LRB095 12808 RLC 38200 b 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.

As of the time this amendatory Act of 1999 HB4877 Engrossed - 12 - LRB095 12808 RLC 38200 b was prepared, People v.

(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 HB4877 - 12 - LRB095 12808 RLC 38200 b was included in Public Act 88-680.

(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 HB4877 Engrossed - 13 - LRB095 12808 RLC 38200 b 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.