dissemination of private sexual images. The hypothetical examples cited by the
circuit court do not establish that section 11-23.5(b) is unconstitutional in a
substantial number of its applications when judged against its plainly legitimate
sweep. See Stevens, 559 U.S. at 473; Williams, 553 U.S. at 292-93.
¶ 100
In concluding that the statute is overbroad, the circuit court also referenced the
fact that section 11-23.5(b) does not require that the nonconsensual dissemination
of private sexual images be done with “malicious intent.” This feature does not
render the statute overbroad.
¶ 101
Initially, we observe that section 11-23.5(b) specifically requires that the
dissemination of a private sexual image be intentional, that the person who
disseminates the image knows or should have known that the person portrayed has
not consented to the dissemination and that the image was obtained under
circumstances in which a reasonable person would know or understand that the
image was to remain private. See 720 ILCS 5/11-23.5(b)(1)-(3) (West 2016). Thus,
the circuit court’s reference to the lack of a “malicious intent” does not, and cannot,
pertain to the lack of a mental state as set forth in sections 4-4 through 4-7 of the
Criminal Code. See id. §§ 4-4 to 4-7.
¶ 102
Instead, the circuit court’s criticism refers to the fact that the statute does not
require proof of an illicit motive or malicious purpose. The circuit court did not,
however, cite legal authority for the proposition that a criminal statute necessarily
must contain an illicit motive or malicious purpose to survive an overbreadth
challenge. In addition, we observe that the motive underlying an intentional and
unauthorized dissemination of a private sexual image has no bearing on the
resulting harm suffered by the victim. A victim whose image has been disseminated
without consent suffers the same privacy violation and negative consequences of
exposure, regardless of the disseminator’s objective. Therefore, the question of the
disseminator’s motive or purpose is divorced from the legislative goal of protecting
the privacy of Illinois citizens. The explicit inclusion of an illicit motive or
malicious purpose would not advance the substantial governmental interest of
protecting individual privacy rights, nor would it significantly restrict its reach.
¶ 103
We recognize that most state laws prohibiting the nonconsensual dissemination
of private sexual images expressly require some form of malicious purpose or illicit
motive as a distinct element of the offense. Of course, the exact statutory language
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