APPEAL from the Circuit Court of Lee County; the Hon. WILLIAM
B. PHILLIPS, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
In a jury trial in the circuit court of Lee County, defendant, Jack Keegan, was found guilty of the offense of indecent liberties with a child (Ill. Rev. Stat. 1967, ch. 38, par. 11-4) and sentenced to not less than 4 nor more than 10 years in the penitentiary. The conviction is based upon the charge that defendant, 54 years of age, masturbated a 12-year-old boy.
As grounds for reversal defendant contends that section 11-4 of the Criminal Code is unconstitutional for the reason that it creates an unreasonable classification violative of the fourteenth amendment to the constitution of the United States and of article II of the constitution of Illinois (1870). He argues that while he was convicted of a felony under section 11-4, one committing the same acts under the same circumstances could be convicted of a misdemeanor under section 11-5, thus depriving him of equal protection of the law.
"11-4. Indecent Liberties with a Child. (a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child:
(1) Any act of sexual intercourse; or
(2) Any act of deviate sexual conduct; or
(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both.
(b) It shall be an affirmative defense to indecent liberties with a child that:
(1) The accused reasonably believed the child was of the age of 16 or upwards at the time of the act giving rise to the charge; or
(2) The child is a prostitute; or
(3) The child has previously been married.
A person convicted of indecent liberties with a child shall be imprisoned in a ...