(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:
(a) Actually or by simulation engaged in any act of sexual penetration or sexual conduct with any person or animal; or
(b) 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
(c) Actually or by simulation engaged in any act of masturbation; or
(d) 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
(e) Actually or by simulation engaged in any act of excretion or urination within a sexual context; or
(f) Actually or by simulation portrayed or depicted as bound, fettered, or subject to sadistic, masochistic, or sadomasochistic abuse in any sexual context; or
(g) 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 division (A)(1)(a) through (g) above; 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 division (A)(1)(a) through (g) above; 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 division (A)(1)(a) through (g) above; 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 division (A)(1)(a) through (g) above; 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 division (A)(1)(a) through (g) above; 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 division (A)(1)(a) through (g) above.
(B) 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 division (B) 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.
(C) 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.
(D) 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.
(E) 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.
(F) 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.
(G) 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.
(H) The penalties for violating this section are provided in § 132.99.
(I) 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 division (A)(1)(a) through (g) above, 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 either the city code or § 36-1 of the Illinois Criminal 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.
(J) 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 division (K) may object to the motion.
(K) Definitions. For the purposes of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
COMPUTER, COMPUTER PROGRAM, and DATA. Have the meanings ascribed to them in § 160-2 of the Illinois Criminal Code.
DEPICT BY COMPUTER. 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.
DEPICTION BY COMPUTER. 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.
DISSEMINATE.
(a) To sell, distribute, exchange or transfer possession, whether with or without consideration; or
(b) 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.
PRODUCE. To direct, promote, advertise, publish, manufacture, issue, present or show.
REPRODUCE. To make a duplication or copy.
(L) 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.
(Prior Code, § 47-4.11) (Ord. 2016-30, passed 5-2-2016) Penalty, see § 132.99