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10/15/87 the People of the State of v. William Arnold Walcher

October 15, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WILLIAM ARNOLD WALCHER, DEFENDANT-APPELLANT

ON NOVEMBER 25, 1986, WILLIAM WALCHER WAS CHARGED BY INFORMATION WITH THREE COUNTS OF CHILD PORNOGRAPHY (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 11-20.1(A)(1)(VII)) AND ONE COUNT OF UNLAWFUL POSSESSION OF CANNABIS (ILL. REV. STAT. 1985, CH. 56 1/2, PAR. 704(D)). PRIOR TO TRIAL, THE DEFENSE FILED A MOTION TO DECLARE THE CHILD PORNOGRAPHY STATUTE UNCONSTITUTIONAL. THE MOTION ALLEGED, INTER ALIA :



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

515 N.E.2d 319, 162 Ill. App. 3d 455, 113 Ill. Dec. 510 1987.IL.1541

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SPITZ delivered the opinion of the court. GREEN and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

"[The] child pornography statute as it applies to William Arnold Walcher, is an irrational classification in that it purports to make the offense of photographing the genitalia of a person under the age of 18 years a Class I felony, whereas consensual sex or actually engaging in sex with a person under 18 years under certain circumstances results in a lesser penalty than that for taking a picture of a person under the age of 18 years."

The motion was denied.

At the ensuing bench trial, the parties introduced the following stipulation:

"In this particular case, there's a stipulation between the parties as far as the People's evidence is concerned is that in -- as far as Count I, that was under the age of 18 years of age; that the defendant

The court subsequently found the defendant guilty with respect to each count of the information.

On March 2, 1987, the defendant was sentenced to concurrent terms of nine years' imprisonment on each count of child pornography and three years' imprisonment for unlawful possession of cannabis. A timely notice of appeal was filed on April 1, 1987.

The first argument raised by defendant on appeal is that the child pornography statute as applied to the photography of a child under the age of 18 violates due process because there is no rational basis for punishing such conduct as a Class 1 felony where actual sexual intercourse with a child under the age of 16 is punished as a Class A misdemeanor. As defendant points out in his brief, the child pornography statute punishes the photography of a child under the age of 18, depicted in a pose involving the lewd exhibition of the genitals, as a Class 1 felony. (Ill. Rev. Stat. 1985, ch. 38, par. 11-20.1(a)(1)(vii).) Actual intercourse with a child under the age of 16 is punished as a Class A misdemeanor. (Ill. Rev. Stat. 1985, ch. 38, par. 12-15(b)(1).) Defendant argues that there is no rational basis for classifying the pornographic photography of a child as a Class 1 felony while punishing intercourse with a child as a Class A misdemeanor, and therefore, the child pornography statute violates due process of law. We disagree.

It is the general rule that the legislature, under the State's police power, has wide discretion to prescribe penalties for defined offenses. (People v. Dixon (1948), 400 Ill. 449, 81 N.E.2d 257.) Furthermore, it is well established that a statutory provision is presumed to be constitutional and valid and that all doubts or uncertainty about its validity must be resolved in favor of the validity of the statute if this can reasonably be done. (See People v. Bales (1985), 108 Ill. 2d 182, 188, 483 N.E.2d 517, 519-20; People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344, 352; People v. Chitwood (1986), 148 Ill. App. 3d 730, 736, 499 N.E.2d 992, 996-97.) It is also well established that the legislature has been empowered to declare and define conduct constituting a crime and to determine the nature and extent of punishment for it. (People v. La Pointe (1981), 88 Ill. 2d 482, 500, 431 N.E.2d 344, 352; People v. Larson (1987), 158 Ill. App. 3d 135, 511 N.E.2d 191; People v. Moorhead (1984), 128 Ill. App. 3d 137, 143, 470 N.E.2d 531, 536.) This authority is limited by the due process requirement that the classification of a crime and the penalty provided be reasonably designed to remedy the evils which the legislature has determined to be a threat to public health, safety, and general welfare. (People v. Steppan (1985), 105 Ill. 2d 310, 319, 473 N.E.2d 1300, 1305; People v. Larson (1987), 158 Ill. App. 3d 135, 511 N.E.2d 191; People v. Moorhead (1984), 128 Ill. App. 3d 137, 143, 470 N.E.2d 531, 536-37.) The burden is on the party challenging the statute to clearly demonstrate its invalidity. See People v. Bales (1985), 108 Ill. 2d 182, 188, 483 N.E.2d 517, 519-20.

As the United States Supreme Court stated in New York v. Ferber (1982), 458 U.S. 747, 756-57, 73 L. Ed. 2d ...


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