APPEAL from the Circuit Court of Lawrence County; the Hon.
WILLIAM G. EOVALDI, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant-appellant, Elmer York, Sr., was convicted after a jury trial in Lawrence County of two counts of aggravated incest and was sentenced to serve two consecutive 5- to 15-year terms. On appeal, 10 issues are raised which will be discussed separately below.
Defendant first contends that the aggravated incest statute (Ill. Rev. Stat. 1973, ch. 38, par. 11-10) denies him and others similarly situated the equal protection of the laws guaranteed by the United States and Illinois Constitutions. (U.S. Const., amend 14; Ill. Const. (1970), art. I, §§ 2, 18.) First, defendant claims he is denied equal protection as a man since a father-daughter (stepdaughter) sexual act is punished as a Class 2 felony while the same act committed by a mother with her son is a Class 3 felony. The second claim of discrimination is that by statute a stepdaughter under age 18 is treated as a daughter while a stepson is not treated as a son. Thus, a stepfather's intercourse with his stepdaughter is aggravated incest while the stepmother's identical act with a stepson is not even incest. It may, of course, constitute some other offense.
It is not because defendant is a male, however, that the different treatment exists. Brother-sister sexual relations, including stepbrother-stepsister, are proscribed by section 11-11. And, on the other hand, uncles, cousins, grandfathers, nephews and men whose stepdaughters or adopted daughters have reached 18 years of age are not susceptible to prosecution for incest.
• 1 Defendant argues correctly that differences in treatment of groups or individuals because of sex is suspect in Illinois and subject to "strict scrutiny." (Phelps v. Bing, 58 Ill.2d 32, 316 N.E.2d 775 (1974); People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98 (1974).) As noted above, however, we do not view the aggravated incest-incest difference as based on sex.
More severe penalties are levied against fathers and stepfathers, not because they are men, but because of their positions in the family. The Committee Comments to both section 11-10 and section 11-11 indicate that the rationale behind punishing incest is founded on two concerns: first, the danger of biological mutations which might occur in the issue of such relationships; and second, the desire to protect children from the abuse of parental authority. Defendant does not contend that these are not valid concerns of the legislature or that, as such, provide the basis for proscriptions of incestuous relationships. He does contend, however, that neither of these reasons offers a rational distinction for the harsher treatment of fathers and stepfathers. In People v. Boyer, 24 Ill. App.3d 671, 321 N.E.2d 312 (1974), the Appellate Court for the Fourth District accepted this argument in holding that a father was denied the equal protection of the law when he was convicted of aggravated incest. Were these the only considerations involved, we would probably agree.
But the reasons behind the legislature's proscription of incest are not the only basis for the aggravated incest statute with increased penalties. The Committee Comments to section 11-10 state that "the vast majority of incest cases that are prosecuted involve a father's abuse of a daughter." In fact, not a single case of aggravated incest or incest has been found which involved other than a father-daughter or stepfather-stepdaughter relationship, save two (David v. People, 204 Ill. 479, 68 N.E. 540 (1903); People v. Binger, 289 Ill. 582, 124 N.E. 583 (1919)) which involved uncles and nieces, no longer the offense of incest.
The legislature, in enacting the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001-1-1 et seq.) stated its purposes in section 1-1-2:
"The purposes of this Code of Corrections are to:
(a) prescribe sanctions proportionate to the seriousness of the offenses and permit the recognition of differences in rehabilitation possibilities among individual offenders;
(b) forbid and prevent the commission of offenses;
(c) prevent arbitrary or oppressive treatment of persons adjudicated offenders or delinquents; and
(d) restore offenders to useful citizenship."
That the offense of incest is serious is illustrated by the Committee Comments to sections 11-10 and 11-11 and is admitted by defendant in his brief. That it is justifiable for the legislature to seek to "forbid and prevent" it is no less certain. The legislature has determined that a more severe penalty is needed to deter those who most often (if not exclusively) commit the offense. We do not feel that such a determination is arbitrary, irrational, or unreasonable. We find, ...