APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
546 N.E.2d 1108, 190 Ill. App. 3d 723, 138 Ill. Dec. 53 1989.IL.1746
Appeal from the Circuit Court of Jefferson County; the Hon. Lehman Krause, Judge, presiding.
JUSTICE CHAPMAN delivered the opinion of the court. WELCH, P.J., and HOWERTON, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CHAPMAN
After a stipulated bench trial, the defendant, John Ramsey, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(b)(1)) for committing an act of sexual penetration with a victim under 13 years of age by placing his penis in the anus of the victim. On appeal, the defendant contends that the aggravated criminal sexual assault statute deprives him of due process under the United States and Illinois Constitutions because: (1) the statute is overly broad and punishes innocent as well as culpable behavior because the legislature has failed to limit the scope of the statute to acts done for the purpose of sexual gratification or arousal; (2) the statute requires no mental state, while the less culpable offense of aggravated criminal sexual abuse requires an intentional or knowing touching done for purposes of sexual gratification or arousal; and (3) criminal sexual assault is not a lesser included offense of aggravated criminal sexual assault, and the statute therefore fails to define an underlying offense. We affirm.
We note at the outset that it is now clear that a defendant does not waive his right to challenge the constitutionality of a statute by failing to raise the issue in the circuit court, as "a constitutional challenge to a statute can be raised at any time." (People v. Bryant (1989), 128 Ill. 2d 448, 454, 539 N.E.2d 1221, 1224.) We therefore address the merits of defendant's arguments.
Defendant first contends that the aggravated criminal sexual assault statute is unconstitutionally overbroad because the act of sexual penetration prohibited by the statute need not be done for the purpose of sexual gratification or arousal. In failing to so limit the prohibited act, the defendant argues, the statute may be construed to apply to innocent conduct such as washing an infant, or to a detention officer's body search of a juvenile detainee.
Section 12 -- 14(b)(1) of the Criminal Code of 1961 provides:
"(b) The accused commits aggravated criminal sexual assault if:
"ny contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration." (Ill. Rev. Stat. 1987, ch. 38, par. 12-12(f).)
"ny intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 12-12(e).
The State argues that because the defendant was convicted of placing his penis in the anus of the victim, his standing to challenge the aggravated criminal sexual assault statute is limited to that type of conduct. We agree. A defendant "may challenge a statute as overbroad on the ground that it may be applied unconstitutionally to situations and questions not before the court only if the statute is one that may inhibit the exercise of rights of expression or association protected under the first amendment." (People v. Haywood (1987), 118 Ill. 2d 263, 275, 515 N.E.2d 45, 51; see Broadrick v. Oklahoma (1973), 413 U.S. 601, 611-12, 37 L. Ed. 2d 830, 839-40, 93 S. Ct. 2908, 2915-16.) The hypothetical situations posited by the defendant as examples of the statute's overbreadth do not implicate the first amendment rights of expression or association. (See Haywood, 118 Ill. 2d at 275, 515 N.E.2d at 51; People v. Campos (1987), 155 Ill. App. 3d 348, 360-61, 507 N.E.2d 1342, 1350.) We find, therefore, that the defendant lacks standing to challenge the statute as overbroad.
The defendant next argues that the aggravated criminal sexual assault statute violates due process because no mental state is required for conviction, while the less serious offense of aggravated criminal sexual abuse requires an intentional or knowing touching done for purposes of sexual gratification or arousal. The defendant relies on People v. Wick (1985), 107 Ill. 2d 62, 481 N.E.2d 676, where the Illinois Supreme Court held that subsection (a)(3) of the aggravated arson statute (Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1(a)(3)) was unconstitutional because it failed to require a culpable intent. It has been held, however, that the aggravated criminal sexual assault statute implicitly requires that the act of sexual penetration must be intentional or knowing. (People v. Smith (1987), 152 Ill. App. 3d 589, 593-94, 504 N.E.2d 850, 852-53; People v. Bartay (1986), 150 Ill. App. 3d 130, 132, 501 N.E.2d 364, 365; People v. Burmeister (1986), 147 Ill. App. 3d 218, 223-24, 497 N.E.2d 1212, 1215-16; see also People v. Finley (1988), 178 Ill. App. 3d 301, 533 N.E.2d 94; People v. Ortiz (1987), 155 Ill. App. 3d 786, 508 N.E.2d 490; Ill. Rev. Stat. 1985, ch. 38, par. 4-3.) While the sexual abuse offenses require the additional element of sexual gratification or arousal, this requirement is reasonable and necessary because "the touching or apparent fondling which is a part of that offense is likely to occur by accident, negligence, or for a proper purpose, while penetration would seldom happen under such circumstances" (Bartay, 150 Ill. App. 3d at 132, 501 N.E.2d at 365). Both criminal sexual abuse and criminal sexual assault require culpable intent: one the intent to touch or fondle for sexual purposes; the other the intent to commit an ...