What Is Non-consensual Dissemination of Private Sexual Images 720 ILCS 5/11-23.5?

In short, if your partner sexted you, or if you create a sex video or picture with your partner, then you cannot share that image or video with someone else. You can find the law at 720 ILCS 5/11-23.5. It states that: “a person commits non-consensual dissemination of private sexual images when he or she:

1. intentionally disseminates an image of another person:
   • (A) who is at least 18 years of age; and
   • (B) who is identifiable from the image itself or information displayed in connection with the image; and
   • (C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and
2. obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and
3. knows or should have known that the person in the image has not consented to the dissemination.

What is the definition of “Image”?

“Image” includes a photograph, film, videotape, digital recording, or other depiction or portrayal of an object, including a human body. 720 ILCS 5/11-23.5(a).

What is the definition of “Sexual Act”?

“Sexual act” means sexual penetration, masturbation, or sexual activity. 720 ILCS 5/11-23.5(a).

What is the definition of “Sexual Activity”?

“Sexual activity” means any:

1. knowing touching or fondling by the victim or another person or animal, either directly or through clothing, of the sex organs, anus, or breast of the victim or another person or animal for the purpose of sexual gratification or arousal; or
2. any transfer or transmission of semen upon any part of the clothed or unclothed body of the victim, for the purpose of sexual gratification or arousal of the victim or another; or
3. an act of urination within a sexual context; or
4. any bondage, fetter, or sadism masochism; or
5. sadomasochism abuse in any sexual context. 720 ILCS 5/11-23.5(a).

Are there exceptions to this rule?

Yes! You can share private sexual images:

1. when the dissemination is made for the purpose of a criminal investigation that is otherwise lawful;
2. when the dissemination is for the purpose of, or in connection with, the reporting of unlawful conduct;
3. when the images involve voluntary exposure in public or commercial settings; or
4. when the dissemination serves a lawful public purpose. 720 ILCS 5/11-23.5(c).

Do I need a lawyer?

Absolutely, because you should be represented by an attorney on any offense that can result in the loss of your freedom. Specifically, the Sixth Amendment to the United States Constitution gives you the right to a lawyer, and the Supreme Court case of Gideon v Wainwright, 372 U.S. 335 (1963) provides state appointed lawyers (public defenders) for indigent people.

What should I know if I suspect that police are investigating me?

One tool that police use to get evidence of a non-consensual dissemination of private sexual images is eavesdropping. The police could have the victim or the mother of the victim call you on the phone and ask you “how could you do such a thing?” They are seeking to get you to apologize because they would want to use that apology as an acknowledgment of guilt. They could also have a friend call you to ask you “what happened?” They are trying to get you to admit that you shared a sex picture or video of someone. As with any ongoing criminal investigation, you have the right to a lawyer and the right to remain silent. DO NOT TALK TO ANYONE about an ongoing criminal investigation. #commonsense; #notlegaladvice.

Another way that police gather evidence on non-consensual dissemination of private sexual images cases is through search warrants. If you found this guide by search for it on your phone or computer, yikes!!! Police can get search warrants to see your browsing history. Although people may find this guide for a variety of reasons (i.e. a google search after watching something in the news/show, clicking around in my website, and/or educational purposes) you wouldn’t want a jury/officer/prosecutor/judge to expect the worst.

Do I have to register as a Sex Offender?

No! A conviction for Non-consensual dissemination of private sexual images does not require registration as a sex offender. 730 ILCS 150/2.

Is Non-consensual Dissemination of Private Sexual Images a misdemeanor or a felony?

Non-consensual Dissemination of Private Sexual Images is a felony. A felony is a crime that is punishable by more than 1 year of imprisonment. 720 ILCS 5/11-23.5(f).

What level of felony is Non-consensual Dissemination of Private Sexual Images

Generally, Non-consensual Dissemination of Private Sexual Images is a Class 4 Felony. The order of felonies in Illinois from most to least serious goes: Class X, followed by Class 1, Class 2, Class 3, and then Class 4. 720 ILCS 5/11-23.5(f).

Can I go to Prison? What is the Sentencing Range?

Non-consensual Dissemination of Private Sexual Images is a Class 4 Felony punishable by 1 to 3 years in the Illinois Department of Corrections. 720 ILCS 5/11-23.5(f).

Can I get probation or is prison mandatory (Non-Probationable)?

Yes. Since Non-consensual Dissemination of Private Sexual Images is a class 4 felony in Illinois, if you are charged with this offense, you are eligible for a sentence of probation of up to 30 months. 730 ILCS 5/5-4.5-45(d). Not only are you eligible for probation, but Illinois law recommends it: “the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that: his imprisonment or periodic imprisonment is necessary for the protection of the public; or probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” 730 ILCS 5/5-6-1(a).

Can I get Court Supervision?

No. Court supervision is not a possible outcome in felony cases. 730 ILCS 5/5-6-1(c).

What is the Extended Sentencing Range 730 ILCS 5/5-4.5-45(a)?

Under Illinois’ extended sentencing guidelines, if you have been convicted in the last 10 years of a felony, and that felony was of the same class or worse when compared to your current charge, then the maximum allowable sentence is doubled. 730 ILCS 5/5-4.5-45(a). That means that the extended sentencing range for a Non-consensual Dissemination of Private Sexual Images is 3 to 6 years in the Illinois Department of Corrections if you have a prior felony conviction.

What percentage of your sentence do you serve for Non-consensual dissemination of private sexual images 730 ILCS 5/3-6-3(a)(2.1)?

Non-consensual Dissemination of Private Sexual Images is an 50% sentence. Illinois Truth-In-Sentencing law states: “the rules and regulations shall provide that a prisoner who is serving a term of imprisonment shall receive one day of sentence credit for each day of his or her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2.1). So if you received the minimum imprisonment term of 1 year in the Illinois Department of Corrections, the most you would actually serve is 6 months assuming you do not receive any other credits.

How long is the Mandatory Supervised Release or Parole Period?

For Non-consensual Dissemination of Private Sexual Images cases, a person sentenced to the Illinois Department of Corrections will not have a mandatory supervised release period unless the Prisoner Review Board, based on a validated risk and needs assessment, determines it is necessary for an offender to serve a mandatory supervised release term. If the Prison Review Board decides to put you on Mandatory Supervised Release, the maximum period will be 1 year. 730 ILCS 5/5-8-1(d)(3).

How to keep a Non-consensual dissemination of private sexual images case off your record?

There are several ways to keep a conviction for this offense off your criminal record. Here are some of the ways:

How to Win at a Trial?

I did not disseminate the image. An excellent case on this issue is People v. Devine, 2022 IL App (2d) 210162. In that case, a victim went to a Verizon store and handed the employee her phone. The employee saw that there were vagina pictures on her phone and texted them to himself. Defendant was arrested and charged with violating this offense. Although the Appellate Court did not like the defendant’s behavior, it held that the defendant did not violate the statute because he did not “disseminate” the image to someone else.

The victim was not identifiable from the photo. Once again, the case on point is People v. Devine, 2022 IL App (2d) 210162. The defendant raised a second argument to the Appellate Court, namely, that the victim was not identifiable by the images. The Appellate Court, in agreeing with the defendant, held that “the statute requires that the person in the image be ‘identifiable from the image itself or information displayed in connection with the image.'” In that case, the vagina pictures, by themselves, were not identifiable.

How to Win at a Motion?

In these types of cases, the police have to do some kind of investigation to prove dissemination. The typical approach may be a search warrant. If police gathered evidence through a search warrant, then the best way to counter that evidence is through a motion to suppress. A criminal defense attorney can challenge the lawfulness of the search. If the Court finds that it was a bad search, then the Court can prevent the State from using what was recovered from the search as evidence. This could result in a dismissal of your case.

How to Avoid a Conviction for Non-consensual dissemination of private sexual images through a Plea Agreement (Reduction on the Charge)?

Although rare, prosecutors sometimes clear backlogs and move cases by giving defendants “a bargain.” For example, a reduction to a misdemeanor disorderly conduct is a very good resolution.

Other Sexual Assault / Rape Guides

If you are looking for information about:

• Criminal Sexual Assault, then check out our guide to Criminal Sexual Assault cases in Illinois.
• Criminal Sexual Abuse, then check out our guide to Criminal Sexual Abuse cases in Illinois.
• Aggravated Criminal Sexual Assault, then check out our guide to Aggravated Criminal Sexual Assault cases in Illinois.
• Child Pornography, then check out our guide to Child Pornography cases in Illinois.
• Predatory Criminal Sexual Assault of a Child, then check out our guide to Predatory Criminal Sexual Assault cases in Illinois.
• Aggravated Criminal Sexual Abuse, then check out our guide to Aggravated Criminal Sexual Abuse cases in Illinois.

Hire Illinois Non-consensual dissemination of private sexual images Criminal Defense Lawyer Clyde Guilamo

Lastly, I hope this guide of free legal education was helpful. #notlegaladvice. If you found this article helpful, then leave us a review on Google! And if you have specific questions about your case, give me a call.