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Tools to fight online harassment

Illinois: Statutory Criminal Law

Contents

  1. Obscenity—720 ILCS § 5/11-20
  2. Unauthorized Video Recording and Live Video Transmission—720 ILCS § 5/26-4
  3. Eavesdropping—720 ILCS §§ 5/14-1, et seq.
  4. Computer Tampering—720 ILCS § 5/17-51
  5. Disorderly Conduct—720 ILCS § 5/26-1
  6. Child Pornography—720 ILCS § 5/11-20.1
  7. Posting of Identifying or Graphic Information on a Pornographic Internet Site or Possessing Graphic Information with Pornographic Material—720 ILCS § 5/11-23
  8. Minors Involved in Electronic Dissemination of Indecent Visual Depictions in Need of Supervision—705 ILCS § 405/3-40
  9. Harmful Materials—720 ILCS § 5/11-21
  10. Bullying Prevention—105 ILCS § 5/27-23.7
  11. Harassment Through Electronic Communications—720 ILCS § 5/26.5-3
  12. Transmission of Obscene Messages—720 ILCS § 5/26.5-1
  13. Intimidation—720 ILCS § 5/12-6
  14. Stalking—720 ILCS § 5/12-7.3
  15. Cyberstalking—720 ILCS § 5/12-7.5

  1. Obscenity—720 ILCS § 5/11-20

    1. Introduction

      The crime of obscenity prohibits the publication, distribution or advertisement of “obscene” materials. While nudity alone is not enough to make pictures or video legally “obscene,” both the Illinois Supreme Court and appellate courts have consistently held that pictorial or written portrayals of nudity may be obscene if accompanied by indications of imminent and impending explicit sexual activity.1

    2. Text of Statute(s)

      (a) A person commits obscenity when, with knowledge of the nature or content thereof, or recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof, he or she:

      1. Sells, delivers or provides, or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or

      2. Publishes, exhibits or otherwise makes available anything obscene; or

      3. Creates, buys, procures or possesses obscene matter or material with intent to disseminate it in violation of this Section, or of the penal laws or regulations of any other jurisdiction; or

      4. Advertises or otherwise promotes the sale of material represented or held out by him or her to be obscene, whether or not it is obscene.

      (b) Obscene Defined. Any material or performance is obscene if:

      1. the average person, applying contemporary adult community standards, would find that, taken as a whole, it appeals to the prurient interest; and

      2. the average person, applying contemporary adult community standards, would find that it depicts or describes, in a patently offensive way, ultimate sexual acts or sadomasochistic sexual acts, whether normal or perverted, actual or simulated, or masturbation, excretory functions or lewd exhibition of the genitals; and

      3. taken as a whole, it lacks serious literary, artistic, political or scientific value.

    3. Cases

      1. People v. Troncoso, 2014 IL App (2d) 130849-U, ¶ 4

        • Procedural Posture: The Defendant was convicted of three counts of obscenity2 and one count of attempted disorderly conduct3. Defendant appealed.

        • Law: Obscenity4

        • Facts: The Defendant distributed harmful materials to a 12-year old child by giving the child a cellular phone containing sexually explicit videos depicting the Defendant. There were also a number of interactions during which the Defendant had shown the child inappropriate materials demonstrating sexual acts.

        • Ruling: The court overturned the convictions and remanded for a new trial based on the trial court’s abuse of discretion in admitting evidence of prior bad acts. The court rejected the Defendant’s challenge to the applicability of the obscenity statute, which was based on his interpretation of the statute such that it only criminalized “commercial dissemination of obscene materials.” The court disagreed and found that non-commercial distribution was appropriately criminalized by the obscenity statute.

    4. Practice Pointers

      This law would be useful if the victim can demonstrate that the pictures or videotapes are obscene and have been distributed, sold or advertised for sale. Whether the material is deemed obscene will be judged by applicable community standards.

    1. People v. Taylor, 342 N.E.2d 96 (Ill. Ct. App. 1976). ↩
    2. 720 ILCS § 5/11-20(a)(1) ↩
    3. 720 ILCS § 5/26-1(a)(1) ↩
    4. 720 ILCS § 5/11-20(a)(1) ↩
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  2. Unauthorized Video Recording and Live Video Transmission—720 ILCS § 5/26-4

    1. Introduction

      The unauthorized video recording statute extends to any unauthorized videotape, photograph, film, or other electronic or digital recording of a still or moving visual image, if taken in certain prohibited spaces (e.g., a bathroom) or under certain prohibited contexts, such as through or under another person’s clothing for the purpose of viewing that person’s body or underwear.

    2. Text of Statute(s)

      (a) It is unlawful for any person to knowingly make a video record or transmit live video of another person without that person's consent in a restroom, tanning bed, tanning salon, locker room, changing room, or hotel bedroom.

      (a-5) It is unlawful for any person to knowingly make a video record or transmit live video of another person in that other person's residence without that person's consent.

      (a-10) It is unlawful for any person to knowingly make a video record or transmit live video of another person under or through the clothing worn by that other person for the purpose of viewing the body of or the undergarments worn by that other person without that person's consent.”

      (a-15) It is unlawful for any person to place or cause to be placed a device that makes a video record or transmits a live video in a restroom, tanning bed, tanning salon, locker room, changing room, or hotel bedroom with the intent to make a video record or transmit live video of another person without that person's consent.

      (a-20) It is unlawful for any person to place or cause to be placed a device that makes a video record or transmits a live video with the intent to make a video record or transmit live video of another person in that other person's residence without that person's consent.

      (a-25) It is unlawful for any person to, by any means, knowingly disseminate, or permit to be disseminated, a video record or live video that he or she knows to have been made or transmitted in violation of (a), (a-5), (a-6), (a-10), (a-15), or (a-20).

      [ . . . ] (e) For purposes of this Section:

      1. “Residence” includes a rental dwelling, but does not include stairwells, corridors, laundry facilities, or additional areas in which the general public has access.

      2. “Video record” means “any videotape, photograph, film, or other electronic or digital recording of a still or moving visual image; and “live video” means and includes any real-time or contemporaneous electronic or digital transmission of a still or moving visual image.”

    3. Cases

      1. People v. Sven, 365 App. 3d 226 (2d Dist. 2006)

        • Procedural Posture: Defendant was convicted of one count of child pornography and, prior to trial, had pleaded guilty to four counts of unlawful videotaping. Defendant appealed the child pornography conviction and the sentence.

        • Law: Unlawful Videotaping1 and Child Pornography2

        • Facts: Defendant pled guilty to unauthorized video recording when he secretly videotaped another person who was naked in the bathroom of a private residence.

        • Ruling: Court held that the Defendant was properly convicted and sentenced by the trial court.

    4. Practice Pointers

      This law will be useful only if the victim did not authorize the videotaping or photographing initially. The act of videotaping or photographing itself would constitute a crime without any onward distribution of such images or video.

    1. 720 ILCS § 5/26-4 ↩
    2. 720 ILCS § 5/11-20.1 ↩
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  3. Eavesdropping—720 ILCS §§ 5/14-1, et seq.

    1. Introduction

      Eavesdropping occurs where a person records or intercepts a private electronic communication without the consent of all parties to that communication. The term “electronic communications” is fairly broad and includes videotapes or aural content, but likely would not include a photograph of sexually explicit content. The key issue with this law is whether all parties to the communication provided consent. Consent under the eavesdropping statute may be either expressed or implied, and exists where a person's behavior manifests acquiescence or a comparable voluntary diminution of his or her otherwise protected rights.1

    2. Text of Statute(s)

      (a) A person commits eavesdropping when he or she knowingly and intentionally:

      1. Uses an eavesdropping device, in a surreptitious manner, for the purpose of overhearing, transmitting, or recording all or any part of any private conversation to which he or she is not a party unless he or she does so with the consent of all of the parties to the private conversation;

      2. Uses an eavesdropping device, in a surreptitious manner, for the purpose of transmitting or recording all or any part of any private conversation to which he or she is a party unless he or she does so with the consent of all other parties to the private conversation;

      3. Intercepts, records, or transcribes, in a surreptitious manner, any private electronic communication to which he or she is not a party unless he or she does so with the consent of all parties to the private electronic communication;

      4. Manufactures, assembles, distributes, or possesses any electronic, mechanical, eavesdropping, or other device knowing that or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious overhearing, transmitting, or recording of private conversations or the interception, or transcription of private electronic communications and the intended or actual use of the device is contrary to the provisions of this Article; or

      5. Uses or discloses any information which he or she knows or reasonably should know was obtained from a private conversation or private electronic communication in violation of this Article, unless he or she does so with the consent of all of the parties.

      [ . . . ] (e) Private Electronic communication. For purposes of this Article, “private electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, pager, computer, electromagnetic, photo electronic or photo optical system, when the sending or receiving party intends the electronic communication to be private under circumstances reasonably justifying that expectation. A reasonable expectation shall include any expectation recognized by law, including, but not limited to, an expectation derived from a privilege, immunity, or right established by common law, Supreme Court rule, or the Illinois or United States Constitution. Electronic communication does not include any communication from a tracking device.

    3. Cases

      1. People v. Clark, 2014 IL 115776

        • Procedural Posture: Defendant charged with eavesdropping moved to dismiss indictment on grounds that eavesdropping statute violated substantive due process and his First Amendment rights

        • Law: Eavesdropping 2

        • Facts: Count I alleged that defendant used an eavesdropping device to record a conversation between himself and Attorney CT without her consent. Count II alleged that defendant had used an eavesdropping device to record a conversation between himself, Judge RJ, and Attorney CT while Judge RJ was acting in the performance of his official duties, without the consent of Judge RJ or Attorney CT.

        • Ruling: Section (a)(1)(A) of the Eavesdropping statute is unconstitutional as violative of the overbreadth doctrine under the First Amendment to the Constitution.

    4. Practice Pointers

      This law was declared unconstitutional by the Illinois Supreme Court in Clark, but quickly amended and reinstated. It will only be useful if the victim was unaware of a video recording that also captured audio content. Unauthorized recordings of such material is unlawful even if it is not subsequently distributed or made available to others.

    1. People v. Ceja, 204 Ill. 2d 332 (2003). ↩
    2. 720 ILCS § 5/14-2(a)(1)(A) ↩
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  4. Computer Tampering—720 ILCS § 5/17-51

    1. Introduction

      This law does not relate specifically to the production, storage or dissemination of sexually suggestive photographs or video, but instead prohibits certain types of unauthorized access to a computer or computer network through which an offender may acquire access to such private content. For instance, a person may be charged with computer tampering for unauthorized access to an email account, a mobile device or a laptop.

    2. Text of Statute(s)

      (a) A person commits computer tampering when he or she knowingly and without the authorization of a computer's owner or in excess of the authority granted to him or her:

      1. Accesses or causes to be accessed a computer or any part thereof, a computer network, or a program or data;

      2. Accesses or causes to be accessed a computer or any part thereof, a computer network, or a program or data, and obtains data or services.

      “Computer” means “a device that accepts, processes, stores, retrieves, or outputs data and includes, but is not limited to, auxiliary storage and telecommunications devices connected to computers.”1

      “Computer network” means “a set of related, remotely connected devices and any communications facilities including more than one computer with the capability to transmit data between them through the communications facilities.”2

    3. Cases

      1. People v. Janisch, 2012 IL App (5th) 100150

        • Procedural Posture: Defendant was convicted by jury of computer tampering under the Computer Crime Prevention Law.

        • Law: Computer Tampering3.

        • Facts: During a custody dispute, Defendant accessed her ex-husband’s e-mail address and information contained therein and sent several e-mails suggesting that her ex-husband was engaged in an extramarital affair (in his current marriage).

        • Ruling: The defendant was convicted of computer tampering for knowingly, and without authorization, accessing another person’s Hotmail account. Under the plain language of the statute, the court held that what is “accessed” need not be the computer itself, and could include access to an email account.

    4. Practice Pointers

      This law is useful if the images or video were obtained through unauthorized access to a computer or computer network, which includes an email account and presumably would also include a social media account or other online or mobile storage or sharing services.

    1. 720 ILCS § 5/17-0.5. ↩
    2. Id. ↩
    3. When it was previously enumerated at 720 ILCS § 5/16(D)-3(a)(2) ↩
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  5. Disorderly Conduct—720 ILCS § 5/26-1

    1. Introduction

      A person commits disorderly conduct when he or she commits any act in such an unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.

    2. Text of Statute(s)

      (a) A person commits disorderly conduct when he knowingly:

      1. Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.

    3. Cases

      1. People v. Mslich, 2015 IL App (4th) 130629-U

        • Procedural Posture: Defendant appealed convictions for offenses of disorderly conduct, reckless conduct, and endangering the life or health of a child.

        • Law: Disorderly conduct1; Reckless Driving2; Endangering the Life or Health of a Child3; Reckless Conduct4

        • Facts: Defendant followed the victim in close proximity while driving on a public highway, had children in her car who were not wearing seatbelts, and confronted the victim in a manner that was alarming and disturbing.

        • Ruling: The Court affirmed the convictions on disorderly conduct and on one count of reckless conduct, but reversed the convictions for endangering the life or health of a child and on one count of reckless conduct.

    4. Practice Pointers

      This law is useful if the victim was photographed or videotaped in a public place without consent and such activities were recognized by the victim, causing the victim to be alarmed or disturbed. However, if this complaint is not filed soon after the activity occurred, it may be difficult to demonstrate that the victim was actually alarmed or disturbed.

    1. 720 ILCS § 5/26-1(a)(1) ↩
    2. 625 ILCS § 5/11-503(a) ↩
    3. 720 ILCS § 5/12-21.6(a) ↩
    4. 720 ILCS § 5/12-5(a) ↩
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  6. Child Pornography—720 ILCS § 5/11-20.1

    1. Introduction

      It is unlawful to produce, possess or distribute photographs or videotapes of children under the age of 18 years-old, where such images depict nudity or are otherwise sexually suggestive. The crime of child pornography applies to anyone who possesses such content if the person knew or reasonably should know that the images were of a child under the age of 18.

    2. Text of Statute(s)

      (a) Any 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… [where such child is]:

        (i) Actually or by simulation engaged in any act of sexual penetration or sexual conduct with any person or animal; 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.

      Illinois courts consider whether a portrayal is considered “lewd” by evaluating the following factors (with no single factor predominating):

      1. whether the focal point of the visual depiction is on the child's genitals;

      2. whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

      3. whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

      4. whether the child is fully or partially clothed, or nude;

      5. whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and

      6. whether the visual depiction is intended or designed to elicit a sexual response in the viewer.1

    3. Cases

      1. People v. Sven, 365 App. 3d 226 (2d Dist. 2006)

        • Procedural Posture: Defendant was convicted of one count of child pornography and, prior to trial, had pleaded guilty to four counts of unlawful videotaping. Defendant appealed the child pornography conviction and the sentence.

        • Law: Unlawful Videotaping2 and Child Pornography3

        • Facts: Defendant pled guilty to unauthorized video recording when he secretly videotaped another person who was naked in the bathroom of a private residence.

        • Ruling: Court held that the Defendant was properly convicted and sentenced by the trial court.

    4. Practice Pointers

      This law is useful if the victim is a minor or was a minor at the time that the sexual photographs or video were taken. Additionally, this crime is useful even if the minor cannot prove that the person in possession of such images has shared them with anyone else.

    1. People v. Lamborn, 185 Ill. 2d 585, 592 (1999) ↩
    2. 720 ILCS § 5/26-4 ↩
    3. 720 ILCS § 5/11-20.1 ↩
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  7. Posting of Identifying or Graphic Information on a Pornographic Internet Site or Possessing Graphic Information with Pornographic Material—720 ILCS § 5/11-23

    1. Introduction

      This law is targeted towards preventing the posting of any images of minors on pornographic sites or the possession of sexually suggestive images of minors, which are not child pornography, in connection with other obscene material or child pornography. The law prohibits posting fully clothed images of a person under 18 years of age on an “adult obscenity or child pornography Internet site” without the knowledge and consent of the person under 18.

    2. Text of Statute(s)

      (a) A person at least 17 years of age who knowingly discloses on an adult obscenity or child pornography Internet site the name, address, telephone number, or e-mail address of a person under 17 years of age at the time of the commission of the offense or of a person at least 17 years of age without the consent of the person at least 17 years of age is guilty of posting of identifying information on a pornographic Internet site.

      (a-5) Any person who knowingly places, posts, reproduces, or maintains on an adult obscenity or child pornography Internet site a photograph, video, or digital image of a person under 18 years of age that is not child pornography under Section 11-20.1, without the knowledge and consent of the person under 18 years of age, is guilty of posting of graphic information on a pornographic Internet site. This provision applies even if the person under 18 years of age is fully or properly clothed in the photograph, video, or digital image.

      (a-10) Any person who knowingly places, posts, reproduces, or maintains on an adult obscenity or child pornography Internet site, or possesses with obscene or child pornographic material a photograph, video, or digital image of a person under 18 years of age in which the child is posed in a suggestive manner with the focus or concentration of the image on the child's clothed genitals, clothed pubic area, clothed buttocks area, or if the child is female, the breast exposed through transparent clothing, and the photograph, video, or digital image is not child pornography under Section 11-20.1, is guilty of posting of graphic information on a pornographic Internet site or possessing graphic information with pornographic material.

    3. Cases

      There are no relevant cases at this time.

    4. Practice Pointers

      This law is useful if the person is or was a minor when the photographs or videos were taken, and such images are hosted on a pornographic site or are sexually suggestive and are held in possession with other obscene material or child pornography.

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  8. Minors Involved in Electronic Dissemination of Indecent Visual Depictions in Need of Supervision—705 ILCS § 405/3-40

    1. Introduction

      This crime is analogous to child pornography, but applies only to minors under the age of 18 who are involved in the electronic distribution of sexually suggestive pictures and images of another minor.

    2. Text of Statute(s)

      (a) For the purposes of this Section:

      Computer” has the meaning ascribed to it in Section 17-0.5 of the Criminal Code of 2012.

      “Electronic communication device” means an electronic device, including but not limited to a wireless telephone, personal digital assistant, or a portable or mobile computer, that is capable of transmitting images or pictures.

      “Indecent visual depiction” means a depiction or portrayal 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 person.

      “Minor” means a person under 18 years of age.

      (b) A minor shall not distribute or disseminate an indecent visual depiction of another minor through the use of a computer or electronic communication device.

      (c) Adjudication. A minor who violates subsection (b) of this Section may be subject to a petition for adjudication and adjudged a minor in need of supervision.

      (d) Kinds of dispositional orders. A minor found to be in need of supervision under this Section may be:

      1. ordered to obtain counseling or other supportive services to address the acts that led to the need for supervision; or

      2. ordered to perform community service.

      (e) Nothing in this Section shall be construed to prohibit a prosecution for disorderly conduct, public indecency, child pornography, a violation of Article 26.5 (Harassing and Obscene Communications) of the Criminal Code of 2012, or any other applicable provision of law.

    3. Cases

      There are no relevant cases at this time.

    4. Practice Pointers

      This law would be useful if the victim is a minor or was a minor at the time the photographs or video were taken and another minor was involved in the electronic distribution of such images. Additionally, unlike the crime of child pornography, this crime will only apply if you can prove that the other minor distributed or disseminated the material.

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  9. Harmful Materials—720 ILCS § 5/11-21

    1. Introduction

      This crime prohibits the distribution or demonstration of sexually explicit videos or photographs to a minor under the age of 18. The age of the persons depicted in such videos or photographs is irrelevant.

    2. Text of Statute(s)

      (a) A person is guilty of distributing harmful material to a minor when he or she:

      1. knowingly sells, lends, distributes, exhibits to, depicts to, or gives away to a minor, 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.

      “Harmful to minors” means “that 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 (i) predominately appeals to the prurient interest in sex of minors, (ii) 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 (iii) lacks serious literary, artistic, political, or scientific value for minors.”

      “Material” means “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.

    3. Cases

      1. People v. Ward, 346 Ill. App. 3d 482 (3d Dist. 2004)

        • Procedural Posture: Defendant was convicted of knowingly distributing harmful materials to a minor, even though defendant did not intend for the minor to view the materials, but instead intended that the minor give the sealed envelope of sexually explicit pictures to her father.

        • Law: Harmful Materials1

        • Facts: Defendant gave sexually explicit photographs to a minor, which she claimed were directed towards the minor’s father.

        • Ruling: The court held that the Defendant knew the envelope contained “harmful materials” and knowingly transferred them to a minor who had power and control over the materials. Whether or not the Defendant intended the minor to view the materials was deemed irrelevant.

    4. Practice Pointers

      This law is useful only if the sexually explicit videos or photographs are at some point distributed or shown to a minor under the age of 18. However, the age of the persons depicted in such videos or photographs is irrelevant.

    1. 720 ILCS § 5/11-21(a) ↩
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  10. Bullying Prevention—105 ILCS § 5/27-23.7

    1. Introduction

      The relatively new crime of bullying provides broad prohibitions that may be relied upon in the event that a student uses photographs or video to threaten, harass or humiliate another student. The bullying prevention law prohibits certain activities when occurring during a school-sponsored activity, while on school property or through the transmission of school computer equipment.

    2. Text of Statute(s)

      “No student shall be subjected to bullying:

      1. during any school-sponsored education program or activity;

      2. while in school, on school property, on school buses or other school vehicles, at designated school bus stops waiting for the school bus, or at school-sponsored or school-sanctioned events or activities; or

      3. through the transmission of information from a school computer, a school computer network, or other similar electronic school equipment.”

      “Bullying” means “any severe or pervasive physical or verbal act or conduct, including communications made in writing or electronically, directed toward a student or students that has or can be reasonably predicted to have the effect of one or more of the following:

      1. placing the student or students in reasonable fear of harm to the student's or students' person or property;

      2. causing a substantially detrimental effect on the student's or students' physical or mental health;

      3. substantially interfering with the student's or students' academic performance; or

      4. substantially interfering with the student's or students' ability to participate in or benefit from the services, activities, or privileges provided by a school.”

      Bullying may take various forms, including without limitation one or more of the following: harassment, threats, intimidation, stalking, physical violence, sexual harassment, sexual violence, theft, public humiliation, destruction of property, or retaliation for asserting or alleging an act of bullying. This list is meant to be illustrative and non-exhaustive.

    3. Cases

      There are no relevant cases at this time.

    4. Practice Pointers

      This law is useful if the videos or photographs are being used for harassment, intimidation or public humiliation and involve a school in the Illinois public school district or any non-public, non-sectarian elementary or secondary school.

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  11. Harassment Through Electronic Communications—720 ILCS § 5/26.5-3

    1. Introduction

      While it appears to be untested in the context of distributing sexually explicit content, this law could apply to the electronic distribution of sexually explicit images or video content where the communication of such materials is considered obscene and is engaged in for the purpose of offending someone.

    2. Text of Statute(s)

      (a) A person commits harassment through electronic communications when he or she uses electronic communication for any of the following purposes:

      1. Making any comment, request, suggestion or proposal which is obscene with an intent to offend;

      2. Interrupting, with the intent to harass, the telephone service or the electronic communication service of any person;

      3. Transmitting to any person, with the intent to harass and regardless of whether the communication is read in its entirety or at all, any file, document, or other communication which prevents that person from using his or her telephone service or electronic communications device;

      4. Transmitting an electronic communication or knowingly inducing a person to transmit an electronic communication for the purpose of harassing another person who is under 13 years of age, regardless of whether the person under 13 years of age consents to the harassment, if the defendant is at least 16 years of age at the time of the commission of the offense;

      5. Threatening injury to the person or to the property of the person to whom an electronic communication is directed or to any of his or her family or household members; or

      6. Knowingly permitting any electronic communications device to be used for any of the purposes mentioned in this subsection (a).

    3. Cases

      1. People v. Kucharski, 2013 IL App (2d) 120270

        • Procedural Posture: Defendant appealed conviction on Count III (harassment through electronic communications) because although it is permissible to criminalize obscene speech, it is not permissible to criminalize only obscene speech that is intended to offend another person

        • Law: Previously codified Harassment Statute1

        • Facts: Defendant accessed the victim’s MySpace page and added a picture of the victim in a thong along with her name, address, phone number, and information about her family. There were also several offensive notations, including: A box in the upper left corner of the page includes the victim's name below the word “Whore” and also states “Mood: slut.” The box includes the photo of the backside of the victim, who is bending forward and wearing only a thong. Next to the photo, it states: “Need a blow job? My dad buys them for my boyfriends.” Another box states “Whore's Interests” and includes the victim's address and phone number. Another box, entitled “Whore's Blurbs,” states: “About me: I'm a slut with no education. I'm gonna end up with 2 different baby daddys and I cant even get a GED. worst of all my dad buys my boyfriends blow jobs.” It then states “call me” and includes the victim's name and phone number. The same box includes the following: “Who I'd like to meet: my baby nephew! I cant go see him he lives in kentucky and I live in Illinois. I'm to ignorant to go visit I'd rather be in a club sucking dick. O and my mom so I can blaze a joint with her.”

        • Ruling: The Court held that statute was not unconstitutionally vague, “obscene” as used in the electronic harassment statute should be afforded its ordinary dictionary definition “disgusting to the senses” or “abhorrent to morality or virtue,” and evidence was sufficient to convict.

    4. Practice Pointers

      This law is useful only if there has been an electronic distribution of the sexually explicit content and the purpose of the distribution was to make an obscene suggestion or comment with the intent to offend. Note that an Illinois court has held that the “one-act, one-crime rule” prohibited the application of both the charges of cyberstalking and harassment through electronic communication to a single act.2

    1. 720 ILCS 135/1-2(a)(1) ↩
    2. People v. Sucic, 401 Ill. App. 3d 492 (1st Dist. 2010). ↩
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  12. Transmission of Obscene Messages—720 ILCS § 5/26.5-1

    1. Introduction

      This law prohibits the transmission of obscene messages via telephone equipment, wires or facilities. As a result, the charge of transmission of obscene messages may be available only if the sexually explicit content is transmitted via a mobile device or via a cellular data transmission (as opposed to Wi-Fi).

    2. Text of Statute(s)

      (a) A person commits transmission of obscene messages when he or she sends messages or uses language or terms which are obscene, lewd or immoral with the intent to offend by means of or while using a telephone or telegraph facilities, equipment or wires of any person, firm or corporation engaged in the transmission of news or messages between states or within the State of Illinois.

      (b) The trier of fact may infer intent to offend from the use of language or terms which are obscene, lewd or immoral.

    3. Cases

      There are no relevant cases at this time.

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  13. Intimidation—720 ILCS § 5/12-6

    1. Introduction

      The purpose of the intimidation statute is to prohibit the making of specific threats that are intended to compel others to act against their will.1. Implicit in the word “threat,” as it is used in the intimidation statute, is the requirement that the expression, in its context, has a reasonable tendency to create apprehension that its originator will perform the threatened act.2 The intimidation statute expressly prohibits threatening a victim with an action that would cause the victim to be exposed to hatred, contempt or ridicule.

    2. Text of Statute(s)

      (a) A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he or she communicates to another, directly or indirectly by any means, a threat to perform without lawful authority any of the following acts:

      1. Expose any person to hatred, contempt or ridicule.

    3. Cases

      1. People v. Peterson, 306 Ill. App. 3d 1091 (2d Dist. 1999)

        • Procedural Posture: Defendant appealed five-year term of imprisonment for intimidation

        • Law: Intimidation 3

        • Facts: Defendant sent victim threatening letters after a business dispute.

        • Ruling: The Court upheld the conviction, finding that the letters sufficiently evidenced Defendants’ intent and that the tenor of the letters was sufficiently threatening to satisfy requirements of intimidation statute.

    4. Practice Pointers

      This statute could be useful in the event that a person threatens to share sexual images or video content of a person unless that person performs or refrains from performing a certain act.

    1. See People v. Byrd, 285 Ill. App. 3d 641 (1st Dist. 1996) ↩
    2. Id. ↩
    3. 720 ILCS § 5/12-6(a) ↩
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  14. Stalking—720 ILCS § 5/12-7.3

    1. Introduction

      The prohibition against stalking extends to a “course of conduct” directed at a specific person that would cause a reasonable person to suffer “emotional distress” and that in fact caused the victim to suffer such distress.1.

    2. Text of Statute(s)

      (a) A person commits stalking when he or she knowingly engages in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to:

      1. fear for his or her safety or the safety of a third person; or

      2. suffer other emotional distress.

      [ . . . ] (c) Definitions. For purposes of this Section:

      1. “Course of conduct” means 2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person's property or pet. A course of conduct may include contact via electronic communications.

      2. “Emotional distress” means significant mental suffering, anxiety or alarm.”

    3. Cases

      1. People v. Beadles, 2013 IL App (3d) 110301-U

        • Procedural Posture: Defendant was convicted of two counts of stalking and appealed arguing, inter alia, that one of his convictions violated the one-act, one-crime rule and that the evidence was insufficient to support his conviction.

        • Law: Stalking 2

        • Facts: Defendant sent unsolicited e-mails to victim that caused emotional grief, including text “[t]hought I would cyber-stalk you for a while (just kidding)” and later stated “if I was about to say anything about [your purse], it would have only been in an effort to get a better angle on checking out your ass. Just kidding .... no I'm not.”

        • Ruling: Court found that evidence was sufficient to convict.

    4. Practice Pointers

      This law is useful to prevent a person from repeatedly following, contacting or otherwise interacting with a victim. For instance, a charge of stalking may be available if the victim experiences a series of undesirable contacts or interactions with a person who has sexually explicit pictures or video content of the victim.

    1. See People v. Peterson, 336 Ill. App. 3d 628 (5th Dist. 2003) ↩
    2. 720 ILCS § 5/12-7.3(a) ↩
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  15. Cyberstalking—720 ILCS § 5/12-7.5

    1. Introduction

      Similar to the more general stalking statute, this law focuses specifically on the use of electronic communications in the “course of conduct” that would cause a reasonable person to suffer “emotional distress.”

    2. Text of Statute(s)

      (a) A person commits cyberstalking when he or she engages in a course of conduct using electronic communication directed at a specific person, and he or she knows or should know that would cause a reasonable person to:

      1. fear for his or her safety or the safety of a third person; or

      2. suffer other emotional distress.

    3. Cases

      1. People v. Sucic, 401 Ill. App. 3d 492 (1st Dist. 2010)

        • Procedural Posture: Defendant was convicted of cyberstalking after repeatedly sending harassing and threatening email and voice mail messages, including messages that threatened to seriously harm or murder the victim.

        • Law: Cyberstalking1

        • Facts: Defendant had a business and personal relationship with the victim that soured. After one encounter, Defendant e-mailed the victim: I'LL GIVE YOU AN OFFER! IN ORDER NOT TO REPORT YOU TO STATE FARM, CALLING FEDS ON INSURANCE FRAUD, AS A CON, WHICH IS FEDERAL OFFENSE, AND NO BOND, MONEY, BROTHER, CAN SAVE YOU FROM JAIL, MEANING 5 YEARS MIN., I'LL GIVE YOU AN OPTION, CONTRACT. SO CONTACT ME AS SOON AS POSSIBLE. THANK YOU. EYE FOR EYE, NOW THERE IS NO MOMENT FOR MERCY. YOU DID NOT HAD [sic ] FOR ME. LET ME SHOW YOU WHO IS THE MAN.” Defendant then left eight voicemails for the victim, which were of a threatening nature.

        • Ruling: The Court found that the prosecution had satisfied its burden with regard to the evidence.

    4. Practice Pointers

      This law is useful to prevent a person from repeatedly following, contacting or otherwise interacting with a victim. For instance, a charge of stalking may be available if the victim experiences a series of undesirable contacts or interactions with a person who has sexually explicit pictures or video content of the victim.

    1. 720 ILCS § 5/12-7.5 ↩
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