APPEAL from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
The defendant pleaded guilty to one count of aggravated incest and one count of indecent liberties with a child, the former having occurred on April 17, 1973, and the latter having occurred during the month of June 1971. Both offenses arose out of conduct with an adopted daughter. A sentence of 4 to 6 years' imprisonment was imposed on the indecent liberties charge, and a concurrent term of 2 to 6 years' imprisonment was imposed on the aggravated incest count. On appeal defendant contends that his conviction for aggravated incest must be reversed because the statute defining the offense is unconstitutional. Additionally, he urges that the sentence on the indecent liberties count should be vacated and the case remanded to allow him to plead anew, or in the alternative, for resentencing.
In this court's opinion in People v. Boyer, 24 Ill. App.3d 671, 321 N.E.2d 312, appeal allowed, 58 Ill.2d 594, we found an unconstitutional discrimination against fathers existed under the penalty provisions of our statute prohibiting aggravated incest (Ill. Rev. Stat. 1973, ch. 38, par. 11-10) when compared to the penalty provisions of the statute prohibiting incest (Ill. Rev. Stat. 1973, ch. 38, par. 11-11). The unconstitutionality of the distinction arose from section 18 of the Bill of Rights of the Constitution of 1970, 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. I, § 18.
As applied to the facts of this case, a further infirmity under the above constitutional provision exists between the two sections of the Criminal Code noted above. Defendant pleaded guilty to an aggravated incest count involving his adopted daughter who was under the age of 18.
"(a) 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.
(b) `Daughter' for the purposes of this Section means a blood daughter regardless of legitimacy or age; and also means a stepdaughter or an adopted daughter under the age of 18." (Ill. Rev. Stat. 1973, ch. 38, par. 11-10(a)(b).
Only a father can be guilty of aggravated incest under section 11-10 of the Criminal Code. The prohibition against mothers having sexual intercourse or performing acts of deviate sexual conduct with their sons is contained in section 11-11 of the Criminal Code:
"(a) Any person who has sexual intercourse or performs an act of deviate sexual conduct with another to whom he knows he is related as follows commits incest:
(2) Brother or sister, either of the whole blood or the half blood." Ill. Rev. Stat. 1973, ch. 38, par. 11-11(a).
• 1, 2 A clear reading of the statute reveals that incest is not committed when a mother performs one of the prohibited acts with an adopted son or stepson. However, where the prohibited acts are performed between a father and a stepdaughter or an adopted daughter under the age of 18, an offense is committed under the statute. Such a sex-based distinction is a "suspect classification" under article I, ...