APPEAL from the Circuit Court of Logan County; the Hon. JOHN
T. McCULLOUGH, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 21, 1975.
Defendant was convicted in a bench trial of the offense of aggravated incest and sentenced to imprisonment for 1 to 5 years. He raises two issues on appeal. First, he contends that the conviction should be reversed because section 11-10 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, § 11-10) amounts to a denial of equal protection for fathers and is discriminatory on the basis of sex in violation of article I, section 18, of the Constitution of Illinois. Second, defendant contends the trial court abused its discretion in denying him probation.
Section 11-10 of the Code defines "aggravated incest" as:
"Any male person who shall perform any of the following acts with a person he knows is his daughter commits aggravated incest:
(1) Has sexual intercourse; or
(2) An act of deviate sexual conduct."
(Ill. Rev. Stat. 1971, ch. 38, § 11-10.)
The Criminal Code defines incest to be an act of sexual intercourse or deviate sexual conduct between mother and son or brother and sister. (Ill. Rev. Stat. 1971, ch. 38, § 110-11.) Incest is a Class 3 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, § 11-11(b)), whereas aggravated incest carries a penalty provision as a Class 2 felony. Ill. Rev. Stat. 1972 Supp., ch. 38, § 11-10(c).
Defendant contends that fathers are denied equal protection of the laws and suffer sexual discrimination in that they are subjected to the penalties of a Class 2 felony for acts forbidden by the statutes, whereas a mother would be subjected to a Class 3 felony. The prohibited sexual relationship is between a parent and that parent's child. When the parent is a male and the child his daughter, the man is subjected to a possible maximum prison term of 20 years. (Ill. Rev. Stat. 1971, ch. 38, § 1005-8-1(b)(3).) However, if the parent is female and she has sexual relations with her son, she is subjected to a maximum possible term of imprisonment of 10 years. (Ill. Rev. Stat. 1971, ch. 38, § 1005-8-1(b) (4).) Similarly, sexual relations between brother and sister are punishable by a maximum of 10 years imprisonment.
• 1 It should be emphasized at this point that the offenses of aggravated incest or incest as statutorily defined do not involve any element of force.
• 2 Section 18 of the Bill of Rights of the Constitution of 1970 (Ill. Const. (1970), art., § 18) provides:
"The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts."
In People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, the supreme court indicated this provision was intended to expand the protections of the equal protection provision of the Bill of Rights. Inclusion of article I, section 18, required the court to hold that a classification based upon sex is a "suspect ...