(A) For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
DISTRIBUTE. Transfer possession of, whether with or without consideration.
HARMFUL TO MINORS. The quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sado- masochistic abuse when, taken as a whole, it does the following:
(a) Predominately appeals to the prurient interest in sex of minors;
(b) Is patently offensive to prevailing standards in the adult community in the state as a whole with respect to what is suitable material for minors; and
(c) Lacks serious literary, artistic, political or scientific value for minors.
KNOWINGLY. Having knowledge of the contents of the subject matter, or recklessly failing to exercise reasonable inspection which would have disclosed the contents.
MATERIAL.
(a) Any picture, photograph, drawing, sculpture, film, video game, computer game, video or similar visual depiction, including any such representation or image which is stored electronically; or
(b) Any book, magazine, printed matter, however reproduced, or recorded audio of any sort.
MINOR. Any person under the age of 18.
NUDITY. The showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.
SADO-MASOCHISTIC ABUSE. Flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one clothed for sexual gratification or stimulation.
SEXUAL CONDUCT. Acts of masturbation, sexual intercourse or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks or, if the person be a female, breast.
SEXUAL EXCITEMENT. The condition of human male or female genitals when in a state of sexual stimulation or arousal.
(B) A person is guilty of distributing harmful material to a minor when he or she does either of the following:
(1) Knowingly sells, lends, distributes, exhibits to, depicts to or gives away to a minor any of the following, knowing that the minor is under the age of 18 or failing to exercise reasonable care in ascertaining the person’s true age:
(a) Any material which depicts nudity, sexual conduct or sado-masochistic abuse, or which contains explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse, and which taken as a whole is harmful to minors;
(b) A motion picture, show or other presentation which depicts nudity, sexual conduct or sado-masochistic abuse and is harmful to minors; or
(c) An admission ticket or pass to premises where there is exhibited or to be exhibited such a motion picture, show or other presentation.
(2) Admits a minor to premises where there is exhibited or to be exhibited such a motion picture, show or other presentation, knowing that the minor is a person under the age of 18 or failing to exercise reasonable care in ascertaining the person’s true age.
(C) In any prosecution arising under this section, it is an affirmative defense:
(1) The minor as to whom the offense is alleged to have been committed exhibited to the accused a draft card, driver’s license, birth certificate or other official or apparently official document purporting to establish that the minor was 18 years of age or older, which was relied upon by the accused;
(2) The defendant was in a parental or guardianship relationship with the minor or that the minor was accompanied by a parent or legal guardian;
(3) The defendant was a bona fide school, museum or public library, or was a person acting in the course of his or her employment as an employee or official of such organization or retail outlet affiliated with and serving the educational purpose of the organization;
(4) The act charged was committed in aid of legitimate scientific or educational purposes; or
(5) An advertisement of harmful material as defined in this section culminated in the sale or distribution of the harmful material to a child under circumstances where there was no personal confrontation of the child by the defendant, his or her employees or agents, as where the order or request for the harmful material was transmitted by mail, telephone, Internet or similar means of communication, and delivery of the harmful material to the child was by mail, freight, Internet or similar means of transport, which advertisement contained the following statement, or a substantially similar statement, and that the defendant required the purchaser to certify that he or she was not under the age of 18 and that the purchaser falsely stated that he or she was not under the age of 18:
NOTICE: IT IS UNLAWFUL FOR ANY PERSON UNDER THE AGE OF 18 TO PURCHASE THE MATTER ADVERTISED. ANY PERSON UNDER THE AGE OF 18 THAT FALSELY STATES THAT HE OR SHE IS NOT UNDER THE AGE OF 18 FOR THE PURPOSE OF OBTAINING THE MATERIAL ADVERTISED IS GUILTY OF A CLASS B MISDEMEANOR UNDER THE LAWS OF THE STATE.
(D) The predominant appeal to prurient interest of the material shall be judged with reference to average children of the same general age of the child to whom the material was sold, lent, distributed or given, unless it appears from the nature of the matter or the circumstances of its dissemination or distribution that it is designed for specially susceptible groups, in which case the predominant appeal of the material shall be judged with reference to its intended or probable recipient group.
(E) Distribution of harmful material in violation of this section is a Class A misdemeanor.
(F) Any person under the age of 18 who falsely states, either orally or in writing, that he or she is not under the age of 18, or that presents or offers to any person any evidence of age and identity that is false or not actually his or her own for the purpose of ordering, obtaining, viewing or otherwise procuring or attempting to procure or view any harmful material is guilty of a Class B misdemeanor.
(G) A person over the age of 18 who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes to or sends, or causes to be sent, or exhibits to, or offers to distribute, or exhibits any harmful material to a person that he or she believes is a minor is guilty of a Class A misdemeanor.
(H) 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.
(ILCS Ch. 720, Act 5, § 11-21) (1999 Code, § 134.03) Penalty, see § 134.99
Statutory reference:
Distribution of harmful material, second or subsequent offense, a Class 4 felony, see ILCS Ch. 720, Act 5, § 11-21
Use of a computer web camera, cellular telephone, or any other type of device to manufacture the harmful material, a Class 4 felony, see ILCS Ch. 720, Act 5, § 11-21