Text of IL HB 4725 (2012)

97TH GENERAL ASSEMBLY State of Illinois 2011 and 2012 HB4725 Introduced , by Rep. Kelly M. Cassidy SYNOPSIS AS INTRODUCED: 720 ILCS 5/12-7.1 from Ch. 38, par. 12-7.1 730 ILCS 5/5-5-3.2 Amends the Criminal Code of 1961. Provides that in addition to other factors defining the offense of hate crime, includes committing certain specified offenses by reason of the victim's gender identity, military status, or immigration status. Amends the Unified Code of Corrections. Provides that committing an offense against (1) the person or property of that individual; (2) the person or property of a person who has an association with, is married to, or has a friendship with the other individual; or (3) the person or property of a relative (by blood or marriage) of a person by reason of the person's actual or perceived gender identity, military status, or immigration status shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence. Defines "gender identity". Effective immediately. LRB097 14460 RLC 59462 b CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY A BILL FOR HB4725LRB097 14460 RLC 59462 b 1 AN ACT concerning criminal law. 2 Be it enacted by the People of the State of Illinois, 3represented in the General Assembly: 4 Section 5. The Criminal Code of 1961 is amended by changing 5Section 12-7.1 as follows: 6 (720 ILCS 5/12-7.1) (from Ch. 38, par. 12-7.1) 7 Sec. 12-7.1. Hate crime. 8 (a) A person commits hate crime when, by reason of the 9actual or perceived race, color, creed, religion, ancestry, 10gender, gender identity, military status, immigration status, 11sexual orientation, physical or mental disability, or national 12origin of another individual or group of individuals, 13regardless of the existence of any other motivating factor or 14factors, he commits assault, battery, aggravated assault, 15misdemeanor theft, criminal trespass to residence, misdemeanor 16criminal damage to property, criminal trespass to vehicle, 17criminal trespass to real property, mob action or disorderly 18conduct as these crimes are defined in Sections 12-1, 12-2, 1912-3(a), 16-1, 19-4, 21-1, 21-2, 21-3, 25-1, and 26-1 of this 20Code, respectively, or harassment by telephone as defined in 21Section 1-1 of the Harassing and Obscene Communications Act, or 22harassment through electronic communications as defined in 23clauses (a)(2) and (a)(4) of Section 1-2 of the Harassing and HB4725- 2 -LRB097 14460 RLC 59462 b 1Obscene Communications Act. 2 (b) Except as provided in subsection (b-5), hate crime is a 3Class 4 felony for a first offense and a Class 2 felony for a 4second or subsequent offense. 5 (b-5) Hate crime is a Class 3 felony for a first offense 6and a Class 2 felony for a second or subsequent offense if 7committed: 8 (1) in a church, synagogue, mosque, or other building, 9 structure, or place used for religious worship or other 10 religious purpose; 11 (2) in a cemetery, mortuary, or other facility used for 12 the purpose of burial or memorializing the dead; 13 (3) in a school or other educational facility, 14 including an administrative facility or public or private 15 dormitory facility of or associated with the school or 16 other educational facility; 17 (4) in a public park or an ethnic or religious 18 community center; 19 (5) on the real property comprising any location 20 specified in clauses (1) through (4) of this subsection 21 (b-5); or 22 (6) on a public way within 1,000 feet of the real 23 property comprising any location specified in clauses (1) 24 through (4) of this subsection (b-5). 25 (b-10) Upon imposition of any sentence, the trial court 26shall also either order restitution paid to the victim or HB4725- 3 -LRB097 14460 RLC 59462 b 1impose a fine up to $1,000. In addition, any order of probation 2or conditional discharge entered following a conviction or an 3adjudication of delinquency shall include a condition that the 4offender perform public or community service of no less than 5200 hours if that service is established in the county where 6the offender was convicted of hate crime. In addition, any 7order of probation or conditional discharge entered following a 8conviction or an adjudication of delinquency shall include a 9condition that the offender enroll in an educational program 10discouraging hate crimes if the offender caused criminal damage 11to property consisting of religious fixtures, objects, or 12decorations. The educational program may be administered, as 13determined by the court, by a university, college, community 14college, non-profit organization, or the Holocaust and 15Genocide Commission. Nothing in this subsection (b-10) 16prohibits courses discouraging hate crimes from being made 17available online. The court may also impose any other condition 18of probation or conditional discharge under this Section. 19 (c) Independent of any criminal prosecution or the result 20thereof, any person suffering injury to his person or damage to 21his property as a result of hate crime may bring a civil action 22for damages, injunction or other appropriate relief. The court 23may award actual damages, including damages for emotional 24distress, or punitive damages. A judgment may include 25attorney's fees and costs. The parents or legal guardians, 26other than guardians appointed pursuant to the Juvenile Court HB4725- 4 -LRB097 14460 RLC 59462 b 1Act or the Juvenile Court Act of 1987, of an unemancipated 2minor shall be liable for the amount of any judgment for actual 3damages rendered against such minor under this subsection (c) 4in any amount not exceeding the amount provided under Section 5 5of the Parental Responsibility Law. 6 (d) In this Section: 7 "Gender identity" means a person's gender-related 8 preference, appearance, expression, or behavior whether or 9 not traditionally associated with the person's assigned 10 sex at birth. 11 "Sexual orientation" means heterosexuality, 12 homosexuality, or bisexuality. 13(Source: P.A. 96-1551, eff. 7-1-11; 97-161, eff. 1-1-12; 14revised 9-19-11.) 15 Section 10. The Unified Code of Corrections is amended by 16changing Section 5-5-3.2 as follows: 17 (730 ILCS 5/5-5-3.2) 18 Sec. 5-5-3.2. Factors in Aggravation and Extended-Term 19Sentencing. 20 (a) The following factors shall be accorded weight in favor 21of imposing a term of imprisonment or may be considered by the 22court as reasons to impose a more severe sentence under Section 235-8-1 or Article 4.5 of Chapter V: 24 (1) the defendant's conduct caused or threatened HB4725- 5 -LRB097 14460 RLC 59462 b 1 serious harm; 2 (2) the defendant received compensation for committing 3 the offense; 4 (3) the defendant has a history of prior delinquency or 5 criminal activity; 6 (4) the defendant, by the duties of his office or by 7 his position, was obliged to prevent the particular offense 8 committed or to bring the offenders committing it to 9 justice; 10 (5) the defendant held public office at the time of the 11 offense, and the offense related to the conduct of that 12 office; 13 (6) the defendant utilized his professional reputation 14 or position in the community to commit the offense, or to 15 afford him an easier means of committing it; 16 (7) the sentence is necessary to deter others from 17 committing the same crime; 18 (8) the defendant committed the offense against a 19 person 60 years of age or older or such person's property; 20 (9) the defendant committed the offense against a 21 person who is physically handicapped or such person's 22 property; 23 (10) by reason of another individual's actual or 24 perceived race, color, creed, religion, ancestry, gender, 25 gender identity, military status, immigration status, 26 sexual orientation, physical or mental disability, or HB4725- 6 -LRB097 14460 RLC 59462 b 1 national origin, the defendant committed the offense 2 against (i) the person or property of that individual; (ii) 3 the person or property of a person who has an association 4 with, is married to, or has a friendship with the other 5 individual; or (iii) the person or property of a relative 6 (by blood or marriage) of a person described in clause (i) 7 or (ii). For the purposes of this Section, "sexual 8 orientation" means heterosexuality, homosexuality, or 9 bisexuality; and "gender identity" means a person's 10 gender-related preference, appearance, expression, or 11 behavior whether or not traditionally associated with the 12 person's assigned sex at birth; 13 (11) the offense took place in a place of worship or on 14 the grounds of a place of worship, immediately prior to, 15 during or immediately following worship services. For 16 purposes of this subparagraph, "place of worship" shall 17 mean any church, synagogue or other building, structure or 18 place used primarily for religious worship; 19 (12) the defendant was convicted of a felony committed 20 while he was released on bail or his own recognizance 21 pending trial for a prior felony and was convicted of such 22 prior felony, or the defendant was convicted of a felony 23 committed while he was serving a period of probation, 24 conditional discharge, or mandatory supervised release 25 under subsection (d) of Section 5-8-1 for a prior felony; 26 (13) the defendant committed or attempted to commit a HB4725- 7 -LRB097 14460 RLC 59462 b 1 felony while he was wearing a bulletproof vest. For the 2 purposes of this paragraph (13), a bulletproof vest is any 3 device which is designed for the purpose of protecting the 4 wearer from bullets, shot or other lethal projectiles; 5 (14) the defendant held a position of trust or 6 supervision such as, but not limited to, family member as 7 defined in Section 11-0.1 of the Criminal Code of 1961, 8 teacher, scout leader, baby sitter, or day care worker, in 9 relation to a victim under 18 years of age, and the 10 defendant committed an offense in violation of Section 11 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-6, 11-11, 12 11-14.4 except for an offense that involves keeping a place 13 of juvenile prostitution, 11-15.1, 11-19.1, 11-19.2, 14 11-20.1, 11-20.1B, 11-20.3, 12-13, 12-14, 12-14.1, 12-15 15 or 12-16 of the Criminal Code of 1961 against that victim; 16 (15) the defendant committed an offense related to the 17 activities of an organized gang. For the purposes of this 18 factor, "organized gang" has the meaning ascribed to it in 19 Section 10 of the Streetgang Terrorism Omnibus Prevention 20 Act; 21 (16) the defendant committed an offense in violation of 22 one of the following Sections while in a school, regardless 23 of the time of day or time of year; on any conveyance 24 owned, leased, or contracted by a school to transport 25 students to or from school or a school related activity; on 26 the real property of a school; or on a public way within HB4725- 8 -LRB097 14460 RLC 59462 b 1 1,000 feet of the real property comprising any school: 2 Section 10-1, 10-2, 10-5, 11-1.20, 11-1.30, 11-1.40, 3 11-1.50, 11-1.60, 11-14.4, 11-15.1, 11-17.1, 11-18.1, 4 11-19.1, 11-19.2, 12-2, 12-4, 12-4.1, 12-4.2, 12-4.3, 5 12-6, 12-6.1, 12-6.5, 12-13, 12-14, 12-14.1, 12-15, 12-16, 6 18-2, or 33A-2, or Section 12-3.05 except for subdivision 7 (a)(4) or (g)(1), of the Criminal Code of 1961; 8 (16.5) the defendant committed an offense in violation 9 of one of the following Sections while in a day care 10 center, regardless of the time of day or time of year; on 11 the real property of a day care center, regardless of the 12 time of day or time of year; or on a public way within 13 1,000 feet of the real property comprising any day care 14 center, regardless of the time of day or time of year: 15 Section 10-1, 10-2, 10-5, 11-1.20, 11-1.30, 11-1.40, 16 11-1.50, 11-1.60, 11-14.4, 11-15.1, 11-17.1, 11-18.1, 17 11-19.1, 11-19.2, 12-2, 12-4, 12-4.1, 12-4.2, 12-4.3, 18 12-6, 12-6.1, 12-6.5, 12-13, 12-14, 12-14.1, 12-15, 12-16, 19 18-2, or 33A-2, or Section 12-3.05 except for subdivision 20 (a)(4) or (g)(1), of the Criminal Code of 1961; 21 (17) the defendant committed the offense by reason of 22 any person's activity as a community policing volunteer or 23 to prevent any person from engaging in activity as a 24 community policing volunteer. For the purpose of this 25 Section, "community policing volunteer" has the meaning 26 ascribed to it in Section 2-3.5 of the Criminal Code of HB4725- 9 -LRB097 14460 RLC 59462 b 1 1961; 2 (18) the defendant committed the offense in a nursing 3 home or on the real property comprising a nursing home. For 4 the purposes of this paragraph (18), "nursing home" means a 5 skilled nursing or intermediate long term care facility 6 that is subject to license by the Illinois Department of 7 Public Health under the Nursing Home Care Act, the 8 Specialized Mental Health Rehabilitation Act, or the ID/DD 9 Community Care Act; 10 (19) the defendant was a federally licensed firearm 11 dealer and was previously convicted of a violation of 12 subsection (a) of Section 3 of the Firearm Owners 13 Identification Card Act and has now committed either a 14 felony violation of the Firearm Owners Identification Card 15 Act or an act of armed violence while armed with a firearm; 16 (20) the defendant (i) committed the offense of 17 reckless homicide under Section 9-3 of the Criminal Code of 18 1961 or the offense of driving under the influence of 19 alcohol, other drug or drugs, intoxicating compound or 20 compounds or any combination thereof under Section 11-501 21 of the Illinois Vehicle Code or a similar provision of a 22 local ordinance and (ii) was operating a motor vehicle in 23 excess of 20 miles per hour over the posted speed limit as 24 provided in Article VI of Chapter 11 of the Illinois 25 Vehicle Code; 26 (21) the defendant (i) committed the offense of HB4725- 10 -LRB097 14460 RLC 59462 b 1 reckless driving or aggravated reckless driving under 2 Section 11-503 of the Illinois Vehicle Code and (ii) was 3 operating a motor vehicle in excess of 20 miles per hour 4 over the posted speed limit as provided in Article VI of 5 Chapter 11 of the Illinois Vehicle Code; 6 (22) the defendant committed the offense against a 7 person that the defendant knew, or reasonably should have 8 known, was a member of the Armed Forces of the United 9 States serving on active duty. For purposes of this clause 10 (22), the term "Armed Forces" means any of the Armed Forces 11 of the United States, including a member of any reserve 12 component thereof or National Guard unit called to active 13 duty; 14 (23) the defendant committed the offense against a 15 person who was elderly, disabled, or infirm by taking 16 advantage of a family or fiduciary relationship with the 17 elderly, disabled, or infirm person; 18 (24) the defendant committed any offense under Section 19 11-20.1 of the Criminal Code of 1961 and possessed 100 or 20 more images; 21 (25) the defendant committed the offense while the 22 defendant or the victim was in a train, bus, or other 23 vehicle used for public transportation; 24 (26) the defendant committed the offense of child 25 pornography or aggravated child pornography, specifically 26 including paragraph (1), (2), (3), (4), (5), or (7) of HB4725- 11 -LRB097 14460 RLC 59462 b 1 subsection (a) of Section 11-20.1 of the Criminal Code of 2 1961 where a child engaged in, solicited for, depicted in, 3 or posed in any act of sexual penetration or bound, 4 fettered, or subject to sadistic, masochistic, or 5 sadomasochistic abuse in a sexual context and specifically 6 including paragraph (1), (2), (3), (4), (5), or (7) of 7 subsection (a) of Section 11-20.3 of the Criminal Code of 8 1961 where a child engaged in, solicited for, depicted in, 9 or posed in any act of sexual penetration or bound, 10 fettered, or subject to sadistic, masochistic, or 11 sadomasochistic abuse in a sexual context; or 12 (27) the defendant committed the offense of first 13 degree murder, assault, aggravated assault, battery, 14 aggravated battery, robbery, armed robbery, or aggravated 15 robbery against a person who was a veteran and the 16 defendant knew, or reasonably should have known, that the 17 person was a veteran performing duties as a representative 18 of a veterans' organization. For the purposes of this 19 paragraph (27), "veteran" means an Illinois resident who 20 has served as a member of the United States Armed Forces, a 21 member of the Illinois National Guard, or a member of the 22 United States Reserve Forces; and "veterans' organization" 23 means an organization comprised of members of which 24 substantially all are individuals who are veterans or 25 spouses, widows, or widowers of veterans, the primary 26 purpose of which is to promote the welfare of its members HB4725- 12 -LRB097 14460 RLC 59462 b 1 and to provide assistance to the general public in such a 2 way as to confer a public benefit. 3 For the purposes of this Section: 4 "School" is defined as a public or private elementary or 5secondary school, community college, college, or university. 6 "Day care center" means a public or private State certified 7and licensed day care center as defined in Section 2.09 of the 8Child Care Act of 1969 that displays a sign in plain view 9stating that the property is a day care center. 10 "Public transportation" means the transportation or 11conveyance of persons by means available to the general public, 12and includes paratransit services. 13 (b) The following factors, related to all felonies, may be 14considered by the court as reasons to impose an extended term 15sentence under Section 5-8-2 upon any offender: 16 (1) When a defendant is convicted of any felony, after 17 having been previously convicted in Illinois or any other 18 jurisdiction of the same or similar class felony or greater 19 class felony, when such conviction has occurred within 10 20 years after the previous conviction, excluding time spent 21 in custody, and such charges are separately brought and 22 tried and arise out of different series of acts; or 23 (2) When a defendant is convicted of any felony and the 24 court finds that the offense was accompanied by 25 exceptionally brutal or heinous behavior indicative of 26 wanton cruelty; or HB4725- 13 -LRB097 14460 RLC 59462 b 1 (3) When a defendant is convicted of any felony 2 committed against: 3 (i) a person under 12 years of age at the time of 4 the offense or such person's property; 5 (ii) a person 60 years of age or older at the time 6 of the offense or such person's property; or 7 (iii) a person physically handicapped at the time 8 of the offense or such person's property; or 9 (4) When a defendant is convicted of any felony and the 10 offense involved any of the following types of specific 11 misconduct committed as part of a ceremony, rite, 12 initiation, observance, performance, practice or activity 13 of any actual or ostensible religious, fraternal, or social 14 group: 15 (i) the brutalizing or torturing of humans or 16 animals; 17 (ii) the theft of human corpses; 18 (iii) the kidnapping of humans; 19 (iv) the desecration of any cemetery, religious, 20 fraternal, business, governmental, educational, or 21 other building or property; or 22 (v) ritualized abuse of a child; or 23 (5) When a defendant is convicted of a felony other 24 than conspiracy and the court finds that the felony was 25 committed under an agreement with 2 or more other persons 26 to commit that offense and the defendant, with respect to HB4725- 14 -LRB097 14460 RLC 59462 b 1 the other individuals, occupied a position of organizer, 2 supervisor, financier, or any other position of management 3 or leadership, and the court further finds that the felony 4 committed was related to or in furtherance of the criminal 5 activities of an organized gang or was motivated by the 6 defendant's leadership in an organized gang; or 7 (6) When a defendant is convicted of an offense 8 committed while using a firearm with a laser sight attached 9 to it. For purposes of this paragraph, "laser sight" has 10 the meaning ascribed to it in Section 24.6-5 of the 11 Criminal Code of 1961; or 12 (7) When a defendant who was at least 17 years of age 13 at the time of the commission of the offense is convicted 14 of a felony and has been previously adjudicated a 15 delinquent minor under the Juvenile Court Act of 1987 for 16 an act that if committed by an adult would be a Class X or 17 Class 1 felony when the conviction has occurred within 10 18 years after the previous adjudication, excluding time 19 spent in custody; or 20 (8) When a defendant commits any felony and the 21 defendant used, possessed, exercised control over, or 22 otherwise directed an animal to assault a law enforcement 23 officer engaged in the execution of his or her official 24 duties or in furtherance of the criminal activities of an 25 organized gang in which the defendant is engaged. 26 (c) The following factors may be considered by the court as HB4725- 15 -LRB097 14460 RLC 59462 b 1reasons to impose an extended term sentence under Section 5-8-2 2(730 ILCS 5/5-8-2) upon any offender for the listed offenses: 3 (1) When a defendant is convicted of first degree 4 murder, after having been previously convicted in Illinois 5 of any offense listed under paragraph (c)(2) of Section 6 5-5-3 (730 ILCS 5/5-5-3), when that conviction has occurred 7 within 10 years after the previous conviction, excluding 8 time spent in custody, and the charges are separately 9 brought and tried and arise out of different series of 10 acts. 11 (1.5) When a defendant is convicted of first degree 12 murder, after having been previously convicted of domestic 13 battery (720 ILCS 5/12-3.2) or aggravated domestic battery 14 (720 ILCS 5/12-3.3) committed on the same victim or after 15 having been previously convicted of violation of an order 16 of protection (720 ILCS 5/12-30) in which the same victim 17 was the protected person. 18 (2) When a defendant is convicted of voluntary 19 manslaughter, second degree murder, involuntary 20 manslaughter, or reckless homicide in which the defendant 21 has been convicted of causing the death of more than one 22 individual. 23 (3) When a defendant is convicted of aggravated 24 criminal sexual assault or criminal sexual assault, when 25 there is a finding that aggravated criminal sexual assault 26 or criminal sexual assault was also committed on the same HB4725- 16 -LRB097 14460 RLC 59462 b 1 victim by one or more other individuals, and the defendant 2 voluntarily participated in the crime with the knowledge of 3 the participation of the others in the crime, and the 4 commission of the crime was part of a single course of 5 conduct during which there was no substantial change in the 6 nature of the criminal objective. 7 (4) If the victim was under 18 years of age at the time 8 of the commission of the offense, when a defendant is 9 convicted of aggravated criminal sexual assault or 10 predatory criminal sexual assault of a child under 11 subsection (a)(1) of Section 11-1.40 or subsection (a)(1) 12 of Section 12-14.1 of the Criminal Code of 1961 (720 ILCS 13 5/11-1.40 or 5/12-14.1). 14 (5) When a defendant is convicted of a felony violation 15 of Section 24-1 of the Criminal Code of 1961 (720 ILCS 16 5/24-1) and there is a finding that the defendant is a 17 member of an organized gang. 18 (6) When a defendant was convicted of unlawful use of 19 weapons under Section 24-1 of the Criminal Code of 1961 20 (720 ILCS 5/24-1) for possessing a weapon that is not 21 readily distinguishable as one of the weapons enumerated in 22 Section 24-1 of the Criminal Code of 1961 (720 ILCS 23 5/24-1). 24 (7) When a defendant is convicted of an offense 25 involving the illegal manufacture of a controlled 26 substance under Section 401 of the Illinois Controlled HB4725- 17 -LRB097 14460 RLC 59462 b 1 Substances Act (720 ILCS 570/401), the illegal manufacture 2 of methamphetamine under Section 25 of the Methamphetamine 3 Control and Community Protection Act (720 ILCS 646/25), or 4 the illegal possession of explosives and an emergency 5 response officer in the performance of his or her duties is 6 killed or injured at the scene of the offense while 7 responding to the emergency caused by the commission of the 8 offense. In this paragraph, "emergency" means a situation 9 in which a person's life, health, or safety is in jeopardy; 10 and "emergency response officer" means a peace officer, 11 community policing volunteer, fireman, emergency medical 12 technician-ambulance, emergency medical 13 technician-intermediate, emergency medical 14 technician-paramedic, ambulance driver, other medical 15 assistance or first aid personnel, or hospital emergency 16 room personnel. 17 (d) For the purposes of this Section, "organized gang" has 18the meaning ascribed to it in Section 10 of the Illinois 19Streetgang Terrorism Omnibus Prevention Act. 20 (e) The court may impose an extended term sentence under 21Article 4.5 of Chapter V upon an offender who has been 22convicted of a felony violation of Section 12-13, 12-14, 2312-14.1, 12-15, or 12-16 of the Criminal Code of 1961 when the 24victim of the offense is under 18 years of age at the time of 25the commission of the offense and, during the commission of the 26offense, the victim was under the influence of alcohol, HB4725- 18 -LRB097 14460 RLC 59462 b 1regardless of whether or not the alcohol was supplied by the 2offender; and the offender, at the time of the commission of 3the offense, knew or should have known that the victim had 4consumed alcohol. 5(Source: P.A. 96-41, eff. 1-1-10; 96-292, eff. 1-1-10; 96-328, 6eff. 8-11-09; 96-339, eff. 7-1-10; 96-1000, eff. 7-2-10; 796-1200, eff. 7-22-10; 96-1228, eff. 1-1-11; 96-1390, eff. 81-1-11; 96-1551, Article 1, Section 970, eff. 7-1-11; 96-1551, 9Article 2, Section 1065, eff. 7-1-11; 97-38, eff. 6-28-11, 1097-227, eff. 1-1-12; 97-333, eff. 8-12-11; revised 9-14-11.) 11 Section 99. Effective date. This Act takes effect upon 12becoming law.