APPEAL from the Circuit Court of Winnebago County; the Hon.
FRED J. KULLBERG, Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:
The defendant, Joseph Polk, was charged in a two-count indictment by a grand jury of Winnebago County on February 11, 1970, with the offenses of rape and indecent liberties with a child in violation of section 11-1 and 11-4 respectively of the Illinois Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, secs. 11-1 and 11-4). The matter proceeded to trial before a jury on June 22, 1970 and separate verdicts of not guilty of rape and guilty of indecent liberties were returned. After post-trial motions and the defendant's petition for probation were denied, he was sentenced to a term of 5 to 10 years in the penitentiary. This appeal followed.
The defendant first contends that Section 11-4 of the Code violates the due process clauses of both the United States and Illinois constitutions because it is "vague, indefinite and uncertain." It provides as follows:
"Section 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 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 the penitentiary from 4 to 20 years."
• 1 It has been stated that a criminal statute violates the constitutional requirement of definiteness when it "* * * fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989, 996; People v. Ross, 41 ...