Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. JOHN S. GHENT, JR., Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.
Defendant, Arthur John Beksel, was committed to the sanitarium at Menard for an indeterminate period as a sexually dangerous person. A criminal complaint was filed in the Circuit Court of Winnebago County by Pearl Franklin, the mother of Susan Edwards, against him alleging that he committed the offense of indecent liberties with the child in violation of paragraph 11-2, chapter 38, Ill Rev Stats 1967, on May 13, 1968. Thereafter, a two-count indictment filed October 17, 1968, recited that "Arthur Beksel, a person of the age of 17 years and upwards (1) committed the offense of indecent liberties with a child, in that he performed an act of sexual intercourse with Susan Jane Edwards, a child under the age of 16 years in violation of par 11-4 (1), ch 38, Ill Rev Stats, and (2) committed the offense of indecent liberties with a child in that he, with intent to arouse his sexual desires lewdly fondled or touched the private parts of Susan Jane Edwards, a child under the age of 16 years, in violation of par 11-4(3), ch 38, Ill Rev Stats."
On October 22, 1968, the State filed a petition, under section 105, chapter 38, Ill Rev Stats entitled "An act in relation to sexually dangerous persons, and providing for their commitment, detention and supervision," requesting the court to appoint two qualified psychiatrists to make a personal examination of the defendant to ascertain whether the defendant is a sexually dangerous person and that they file a report in writing of the results of their examinations.
The petition, as amended on October 24, 1968, alleged that the defendant is charged in the indictment with the offense of indecent liberties with a child (Susan Jane Edwards); that defendant is charged also with the offense of rape, the victim being a 13-year-old girl (Susan Longardner) and that on October 17, 1960, the defendant entered a plea of guilty to the offense of assault with intent to commit a lewd and lascivious act upon a 16-year-old girl, for which he was placed on probation for three years, served six months in the county jail and paid a fine of $300; also, that defendant is suffering from a mental disorder which has existed for more than one year prior to the filing of the petition, coupled with criminal propensities towards acts of sexual assault and acts of sexual molestation of children and is deemed a sexually dangerous person.
The court appointed Drs. Graybill and Hamann to make the examinations. Dr. Graybill examined the defendant on October 25, 1968, and on November 12, 1968, reported that his clinical diagnosis of the defendant indicated a severe depressive reaction in a sexually deviate personality. "There is no doubt that this man is sexually dangerous but he appears motivated at this time to seek some form of help. Long-term institutional care with individual psychotherapy is recommended for Mr. Beksel," said Dr. Graybill. Dr. Hamann's report of November 21, 1968, stated on October 29, 1968, he examined the defendant and that defendant was not mentally retarded or defective, but would be classified as having a sociopathic personality disturbance with sexual deviation. He further stated that if the charges were true against the defendant, he would classify him as a sexually dangerous person.
On October 22, 1968, at the time of arraignment on the indictment, a privately retained attorney appeared on behalf of the defendant. The petition under the Sexually Dangerous Persons Act was filed under the same case number as required. On November 14, 1968, Attorney Alex Victor withdrew as defense attorney and the Public Defender was appointed by the court to represent the defendant. On February 10, 1969, a bench trial was held on the petition and the judge, after hearing all the evidence, found that defendant was a sexually dangerous person and ordered him committed to the Illinois State Penitentiary at Menard. This appeal followed.
The issues as presented to this court are: (1) Can a person be committed as a sexually dangerous person if the acts are against an adult or whether they must involve children and, if so, what does the word "child" mean, as far as age is concerned, under the Act; (2) was defendant denied his right to counsel before signing a waiver and confession, before being examined by psychiatrists, and before being put in a lineup; (3) was the confession coerced, and in such a proceeding is not defendant entitled to the constitutional guarantees required in a criminal prosecution; (4) was the finding of guilty contrary to the law and the evidence.
The statute involved is chapter 38, section 105-1.01, Ill Rev Stats 1967, as follows:
"All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children, are hereby declared sexually dangerous persons."
This Act does not define "children" and we have found no case wherein any Illinois court has been called upon to establish the age limitation for the purpose of this Act. Both the State and the defendant urge that "children" be defined as applied to this Act since it appears to be a question of first impression.
Before reaching that question, it seems proper to first determine the issue presented as to whether the Act only applies to persons who commit sex crimes upon children. We are of the opinion that the language of the Act, "coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward act of sexual assault or acts of sexual molestation of children" does not require the interpretation that both "sexual assault" and "sexual molestation" refer to children. The statute has the word "or" between these two types of sex crimes and "or" in its normal context means just what it says, i.e., the defendant has to be suffering from a mental disorder which has existed for not less than one year and has demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children. The phrase "sexual assault" appears to refer to sex crimes involving force (assault), and acts of sexual molestation of children are acts which basically involve the incapacity of the victim to consent to primarily consensual acts (molestation). Logically, a sexually dangerous person is a person who is suffering from a mental disorder and who has criminal propensities for sexual assault, regardless of whether the victim is a child or an adult. In either event, he has a mental disorder, is dangerous to society, and should properly receive treatment for the protection of society and his own rehabilitation.
It is to be noted that at least two of the crimes herein alleged and described later in this opinion involve forceful sexual assault. Therefore, reading the language of the Act in its natural import, we believe a person can be found guilty of being a sexually dangerous person although the forceful acts involved are against adults, as well as to children. Even if the Act is construed as to involve children only, we believe that the definition of children should come from section 11-5 of the Criminal Code (Ill Rev Stats 1967, c 38, par 11-5) entitled "Contributing to the sexual delinquency of a child" wherein it is provided as follows:
"(a) Any person of the age of 14 years and upwards who performs or submits to any of the following acts with any person under the age of 18 contributes to the sexual delinquency of a child:
"1) Any act of sexual intercourse or
"2) Any act of deviate sexual ...