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People v. Lieberman

March 13, 2001

IN RE DETENTION OF BRAD LIEBERMAN
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
BRAD LIEBERMAN INMATE NO. N03991, RESPONDENT-APPELLANT)



The opinion of the court was delivered by: Justice McBRIDE

Appeal from the Circuit Court of Cook County

Honorable William S. Wood & Thomas R. Fitzgerald, Judges Presiding.

Respondent Brad Lieberman was convicted of a series of rapes under several indictments in 1980. Respondent was sentenced to a number of concurrent sentences, the longest of which required him to serve 40 years in prison. In January 2000, prior to respondent's entry into mandatory supervised release, the State filed a petition to have him civilly committed as a sexually violent person pursuant to the Sexually Violent Persons Commitment Act (the Commitment Act or Act) (725 ILCS 207/1 et seq. (West 1998)). Respondent moved to dismiss the State's petition pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1998)) on the basis that the crime of rape, for which he was convicted, was not a "sexually violent offense" as defined by the Commitment Act. See 725 ILCS 207/5(e) (West 1998). The circuit court denied respondent's motion to dismiss. Upon the motion of respondent, the circuit court certified a question for interlocutory appeal pursuant to Supreme Court Rule 308(a). 155 Ill. 2d R. 308(a). Respondent's application to this court for leave to file an interlocutory appeal was granted. The question certified was "[w]hether the Respondent's conviction for the crime of rape (Ill. Rev. Stat. Ch. 38 § 11-1), is a conviction of a sexually violent offense for purposes of a civil commitment of a 'sexually violent person' under the Sexually Violent Persons Commitment Act, 725 ILCS 207 et seq."

In 1980, respondent was convicted in Cook County of six rape offenses and several other offenses. He successfully appealed his original sentence on one of the rape convictions (People v. Lieberman, 107 Ill. App. 3d 949, 438 N.E.2d 516 (1982)) and, on remand, was sentenced to a 40-year prison term to run concurrent to his 30-year terms on the other rape convictions and a 30-year term imposed for a rape conviction in Lake County.

Respondent was scheduled to be released from prison on January 9, 2000. On January 6, 2000, the State filed a petition pursuant to the Commitment Act seeking to commit respondent to the Illinois Department of Human Services as a sexually violent person. The petition alleged that respondent had been convicted of a number of sexually violent offenses and was dangerous to others because his mental disorders created a substantial probability that he would engage in future acts of sexual violence. Attached to the petition was a psychological evaluation of respondent that had been conducted on October 15, 1999, for the purpose of determining whether he met the criteria for commitment under the Commitment Act. That evaluation concluded that it was substantially probable respondent would engage in continued acts of sexual violence upon his release from prison and recommended he be civilly committed as a sexually violent person.

Respondent moved to dismiss the State's petition on January 10, 2000, contending, inter alia, that the petition should be dismissed because he had not been convicted of one of the sexually violent offenses enumerated in section 5(e) of the Commitment Act. 725 ILCS 207/5(e) (West 1998). Arguments on respondent's motion to dismiss were heard on January 19, 2000. On February 1, 2000, respondent's motion to dismiss was orally denied. Respondent was, however, granted leave to file a motion for certification under Rule 308(a). 155 Ill. 2d R. 308(a). This court granted respondent's application for leave to file an interlocutory appeal. The question certified for appeal was "[w]hether the Respondent's conviction for the crime of rape (Ill. Rev. Stat. Ch. 38 § 11-1), is a conviction of a sexually violent offense for purposes of a civil commitment of a 'sexually violent person' under the Sexually Violent Persons Commitment Act, 725 ILCS 207 et seq."

The Criminal Code of 1961 has not contained the offense of rape since 1984, when the offense was repealed by Public Act 83-1067. Pub. Act 83-1067, eff. July 1, 1984. Public Act 83-1067 was a major overhaul of the sexual crime statutes that, inter alia, abolished the offenses of rape, deviate sexual assault, indecent liberties with a child, aggravated indecent liberties with a child, contributing to the sexual delinquency of a child, aggravated incest, and sexual abuse of a child by a family member. Pub. Act 83-1067, eff. July 1, 1984; A. Jaffe & R. Becker, Four New Basic Sex Offenses: A Fundamental Shift in Emphasis, 72 Ill. B.J. 400, 401 (1984). In place of the repealed offenses, Public Act 83-1067 created four new offenses: criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse, and aggravated criminal sexual abuse. Pub. Act 83-1067, eff. July 1, 1984.

Prior to its repeal, the offense of rape was defined as having occurred when "[a] male person of the age of 14 years and upwards *** has sexual intercourse with a female, not his wife, by force and against her will." Ill. Rev. Stat. 1983, ch. 38, par. 11-1(a). Sexual intercourse was defined as having occurred when there was "any penetration of the female sex organ by the male sex organ." Ill. Rev. Stat. 1983, ch. 38, par. 11-1(b). Criminal sexual assault occurs where an accused:

"(1) commits an act of sexual penetration by the use of force or threat of force; or

(2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent; or

(3) commits an act of sexual penetration with a victim who was under 18 years of age when the act was committed and the accused was a family member; or

(4) commits an act of sexual penetration with a victim who was at least 13 years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority or supervision in relation to the victim." 720 ILCS 5/12-13(a) (West 1998).

Sexual penetration, for purposes of criminal and aggravated criminal sexual assault, is defined as:

"any contact, however slight, between the sex organ or anus of one person by an object, 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 ...


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