APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 9, 1975.
Following a bench trial, defendant, Ernest Williams, was found guilty of two counts of aggravated incest and sentenced to serve an 8- to 15-year term in the penitentiary. On appeal, defendant contends that the aggravated incest statute (Ill. Rev. Stat. 1971, ch. 38, par. 11-10) is unconstitutional and, alternatively, that his sentence should be reduced in conformity with the Unified Code of Corrections. The record reveals that the conviction of guilt rested mainly upon the testimony of defendant's two daughters, Martha and Ellen Williams.
Martha Williams testified that she was 25 years old and first had sexual intercourse with her father, Ernest Williams, when she was 9 or 10 years old. Immediately prior to this first incident, defendant threatened to kill her if she told anyone of his actions. As she grew older, the frequency of intercourse with her father increased. She stated that she had given birth to five children, and that defendant was the father of four of her children, including one that had died previously. She testified that defendant had sexual intercourse with her on December 1, 1969, and that at the time she was living with her father and mother as well as with other members of her family. Late at night on the date in question she was asleep in her bedroom when defendant told her to get up and go downstairs. She went downstairs to the living room and was told by her father to remove her clothes and get on the floor. Defendant then had sexual intercourse with her.
She was told by defendant that there was nothing wrong in having sexual intercourse with him, although, as she grew older, she realized that such conduct was improper. She did not tell anyone of her relations with her father because of his threats to do bodily harm to both her and other members of the family and because of the ignominy that would be brought on the entire family. She and her sister Ellen finally called the police after their younger brothers had told them that their younger sisters, Debbie and Nancy, were pregnant. She did not want their lives to be ruined as hers had been.
Ellen Williams, who was 23 years old, testified that defendant was her father and that she first had sexual intercourse with him when she was 8 years old. She gave birth to a son on October 4, 1964, when she was 14 years old. Prior to that time she had not had sexual intercourse with anyone other than her father. She gave birth to another son on January 22, 1968, and a daughter on February 6, 1969. Her father was the father of all three of her children.
Ellen had sexual intercourse with her father on July 3, 1969. She had retired to bed at 10:30 p.m. on that night. At approximately 11:30 p.m., her father came into the room with a sledge hammer and a heavy wrench and instructed her to take off her clothes. Defendant thereupon had sexual intercourse with her and told her not to tell anyone or else he would kill her.
Defendant was convicted of aggravated incest under section 11-10 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 11-10) for having sexual intercourse with his daughters. A female, on the other hand, who engaged in sexual intercourse with her son, would be guilty of incest under section 11-11 of the Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, par. 11-11.) Aggravated incest is punishable with a maximum term of 20 years' imprisonment, (Ill. Rev. Stat. 1971, ch. 38, par. 11-10(c)) while incest carries a possible maximum term of 10 years. Ill. Rev. Stat. 1971, ch. 38, par. 11-11(b).
Defendant contends that the aggravated incest statute discriminates against male parents solely on the basis of sex in violation of the fourteenth amendment of the United States Constitution and of the Bill of Rights of the 1970 Illinois Constitution, which 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." (Ill. Const. (1970), art. 1, § 18.)
It is argued that the different treatment accorded males under the aggravated incest statute and females under the incest statute is a classification based solely on sex and is therefore "suspect" and subject to "strict judicial scrutiny." (Frontiero v. Richardson, 411 U.S. 677, 36 L.Ed.2d 583, 93 S.Ct. 1764; Phelps v. Bing, 58 Ill.2d 32, 316 N.E.2d 775; People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98.) Defendant maintains that the State has failed to demonstrate a compelling State interest which justifies the classification or, alternatively, that the classification is not rationally related to a legitimate State interest. (Reed v. Reed, 404 U.S. 71, 30 L.Ed.2d 225, 92 S.Ct. 251.) In support of its position, we are referred to the Fourth District decision in People v. Boyer, 24 Ill. App.3d 671, 321 N.E.2d 312 (Mr. Justice Smith dissenting), wherein the court held that a father convicted of aggravated incest was denied equal protection of the law. *fn1 The Fifth District Appellate Court, however, has rejected the reasoning of the Boyer decision in upholding the constitutionality of the aggravated incest statute. People v. York, 29 Ill. App.3d 113, 329 N.E.2d 845.
From an examination of the primary authorities submitted, we are not persuaded to the conclusion that the aggravated incest statute is violative of equal protection. In Frontiero, the Supreme Court held that equal protection was denied by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience. In Ellis a section of the Juvenile Court Act, which permitted 17-year-old boys to be tried as adults while affording the procedural protection of the Act to 17-year-old girls, was held unconstitutional. Similarly, in Phelps, the court found a denial of equal protection in certain sections of the Marriage Act treating males and females of the same age differently for the purpose of determining their rights to a marriage license. In Reed, under the permissive standard of review, the Court held unconstitutional a provision of the Idaho Probate Code giving "mandatory" preferential treatment to males over females in applying for appointment as an administrator of a decedent's estate. In each of the above cases, the gender-based distinction arose in relation to identical conduct and was wholly irrational to the object of the legislation. (See also Stanton v. Stanton, ___ U.S. ___, 43 L.Ed.2d 688, 95 S.Ct. 1373; Weinberger v. Wiesenfeld, 420 U.S. 636, 43 L.Ed.2d 514, 95 S.Ct. 1225.) Under the statute here challenged, we cannot say that the classification is based upon sex alone or is in relation to identical conduct.
A reading of the statutory scheme makes manifest that the classification does not rest upon sex alone. While only a male may be convicted of aggravated incest, the same male may also be convicted of ordinary incest under section 11-11 for sexual relations with either his mother or sister. Therefore, more severe penalties are levied against fathers and stepfathers, not because they are men, but because of their positions in the family. People v. York.
Although different treatment is accorded males, the justification therefor lies in the fact that there exists a difference in the proscribed conduct. As stated in the dissenting opinion of Mr. ...