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People v. Feuling

OPINION FILED OCTOBER 6, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

THEODORE FEULING, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. BEN EDELSTEIN, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

This case concerns a Boy Scout initiation known as a "lollipop initiation" in which a blindfolded boy would be made to kiss the bare hand or arm of a scout. At the same time, another scout would remove his trousers and bare his buttocks, so that the one being initiated, upon removal of his blindfold, would be under the impression that he had actually kissed a bare buttocks. The two initiates involved were Joseph Frasier and Matthew Oramis.

Defendant Theodore Feuling, for several years a volunteer Boy Scout leader, was charged and convicted in a bench trial of two counts alleging violation of section 11-5(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11-5(a)(3)), which provides in pertinent part:

"(a) Any person of the age of 14 years and upwards who performs or submits to any of the following acts with any person under the age of 18 contributes to the sexual delinquency of a child:

(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 the person or both."

Defendant was sentenced to Social Service Supervision for one year.

Defendant in each case was charged with contributing to the sexual delinquency of a child in that he performed with each boy a lewd touching done with the intent to arouse the sexual desires of defendant and the boy. The State contends that the evidence shows that defendant performed a lewd touching of the boys with the necessary intent to arouse either their sexual desires or his own. Defendant argues to the contrary. We agree with defendant and reverse.

In reviewing the record, we have kept in mind the principle stated in People v. Pointer (1972), 6 Ill. App.3d 113, 118, 285 N.E.2d 171, appeal denied (1972), 52 Ill.2d 599:

"[A] reviewing court is charged with a special duty to exercise utmost caution and circumspection in scrutinizing the sum and substance of the evidence upon which a conviction for a sex offense is predicated."

"Initiation" is defined in Webster's Third New International Dictionary (1961) as "the rites, ceremonies, ordeals, or instructions with which one is made a member of a sect or society or is invested with a particular function or status (the college fraternity has a scheme of ruthless mock initiations — C.W. Ferguson)" and "initiate" as "to receive or induct into membership of a society, club, or group, or into a certain status by or as if by special rites or formalities (initiated into a social fraternity)."

Hazing is a form of initiation. It is defined in Webster's Third New International Dictionary (1961) as "an attempt to embarrass or disconcert by ridicule or persistent criticism" and "the subjecting (as of a freshman or fraternity pledge) to treatment intended to put in ridiculous or disconcerting position." The verb "haze" is defined in Webster's New International Dictionary (2d ed. 1934) as "in schools, colleges, etc., to harass or annoy by playing abusive or ridiculous tricks upon, as in initiations." The American Heritage Dictionary of the English Language (1969) defines the verb "haze" as "to initiate (as into a college fraternity) by exacting humiliating performances from or playing rough practical jokes upon." Webster's Third New International Dictionary (1961) defines the verb "haze" as "to harass or try to embarrass or disconcert by banter, ridicule, or criticism" and "to subject (as a freshman or a fraternity pledge) to treatment intended to put in ridiculous or disconcerting positions."

The record shows the following: Joseph Frasier, age 14, testified that he and Matthew Oramis were involved in a lollipop initiation on a camping trip. In it, he (Frasier) was blindfolded by some of the scouts and told by defendant to stick out his tongue. When he stuck out his tongue, somebody's hand or something went past his mouth. He didn't know what it was; it felt like somebody's butt. His blindfold was then removed and he saw one of the scouts pulling his pants off in front of his face. He saw Matthew Oramis also initiated that day. Matthew was also blindfolded and he (Frasier) saw a boy (Brent) put his butt in Matthew's face. He saw Brent have his rear end touch Matthew's face. Defendant was present watching; he was the director.

On cross-examination, he testified that defendant and his assistants were conducting the initiation. He further testified that he saw Brent go over in front of Matthew with other scouts and the scout leaders sitting there. Matthew didn't kiss any part of Brent's body. Somebody put Brent's butt against Matthew's tongue. They didn't put anybody's arm in front of it before. Matthew did not touch any other part of Brent's body. He further testified that he is not familiar with the lollipop initiation; he has seen it only once. He does not know whether, under the initiation, the one blindfolded is supposed to think that he is kissing somebody's butt.

Matthew Oramis, age 11, testified that he was in the lollipop initiation. He ran in the bathroom and they started busting down the door. He was grabbed, held down and all his clothes removed. The junior scoutmaster and the scouts started touching him. In the lollipop initiation, he was blindfolded and the defendant told him to stick out his tongue. He felt some skin on his tongue; he didn't know what it was. Defendant's ...


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