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08/22/97 T.W. v. T.W.

August 22, 1997

IN RE T.W., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
T.W., RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Stuart F. Lubin, Judge Presiding.

Released for Publication October 9, 1997.

The Honorable Justice South delivered the opinion of the court. Hoffman and Hourihane, JJ., concur.

The opinion of the court was delivered by: South

The Honorable Justice SOUTH delivered the opinion of the court:

Minor-respondent, T.W., was charged by way of a petition for adjudication of wardship with committing the offense of criminal sexual assault, two counts of criminal sexual abuse and aggravated criminal sexual abuse. At the time the acts took place, respondent was 16 years old, and the complainant, M.B., was 15 years old.

After a bench trial, the court found that the relations between the two minors were consensual and sustained respondent's motion for a directed finding on the charges of criminal sexual assault and aggravated criminal sexual abuse. The court did, however, find respondent delinquent on two counts of criminal sexual abuse under sections 12-15(b) and (c) of the Criminal Code of 1961 (720 ILCS 5/12-15(b), (c) (West 1996)). Thereafter, the court ordered that the case be closed but indicated that its adjudication of delinquency was to stand. Respondent appeals.

Initially, we note that the State has moved to strike the supplemental portion of the record that contains respondent's motion to reconsider. The State argues that respondent's motion to reconsider does not reflect that it was ever filed before the clerk of the circuit court. The record of proceedings for June 11, 1996, indicates that the circuit court considered and then denied a post-trial motion by respondent. A copy of this motion was not included in the record on appeal. Respondent filed a supplemental record with this court that contained the post-trial motion to reconsider. On December 11, 1996, the respondent's motion was granted by this court, and that order will stand. Accordingly, the State's motion to strike the supplemental portion of the record that contains respondent's motion to reconsider is denied.

On appeal, respondent first contends that section 12-15(b) (720 ILCS 5/12-15(b) (West 1996)) is unconstitutionally vague and in violation of due process because it contains no minimum objective standards for law enforcement officials to determine which of two minors who engage in consensual sex is the accused and which is the victim for purposes of prosecution. Respondent also argues that the statute is not rationally related to its subject matter because it punishes minors who are intended to be protected.

The State counters that section 12-15(b) is not unconstitutionally vague inasmuch as the language of the statute provides sufficient objective standards to guide law enforcement officials in its application and that the statute is rationally related to a legitimate state goal. The State also contests the respondent's standing to raise a facial challenge to section 12-15(b).

We first address the State's contention that defendant does not have standing. According to the State, respondent lacks standing to raise a facial challenge to section 12-15(b) that his conduct clearly falls within the proscription of the statute and the statute does not implicate first amendment rights.

In this instance, however, respondent does not contest the constitutionality of the statute on the basis that it fails to give adequate notice of what conduct is proscribed. Rather, respondent contests the validity of a statute that has criminalized certain acts in which he and the complainant engaged on the basis that it provides no objective standards to guide law enforcement officials in determining which of the two minors is the accused and which is the victim for purposes of prosecution. Respondent also contests the validity of the statute on the basis that it is not rationally related to the subject matter of protecting minors from the consequences of premature sexual experiences.

The facts of the case implicate what respondent claims to be the statute's constitutional infirmities, i.e., that the standards set forth in the statute are unconstitutionally vague and are not rationally related to its subject matter as applied to him. Thus, respondent has standing.

Section 12-15(b) of the Criminal Code provides:

"The accused commits criminal sexual abuse if the accused was under 17 years of age and commits and act of sexual penetration or sexual conduct with a victim who was at least 9 years of age but under 17 years of age when ...


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