Appeal from the Circuit Court of Cook County Honorable Carol Kipperman, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Gallagher
Following a bench trial, the defendant, Stephen Ruppenthal, was convicted of two counts of indecent solicitation of a child and was sentenced to two years of probation. Ruppenthal was arrested at O'Hare International Airport in Chicago after communicating on the Internet with a person whom he believed to be a 14-year-old girl named "Stacy," but who was actually a Cook County sheriff's detective. On appeal, defendant first argues that because he did not in fact solicit a minor but instead communicated with an adult, he should not have been charged with indecent solicitation of a child under section 11-6 of the Criminal Code of 1961 (the Code) (720 ILCS 5/11-6 (West 2000)). He asserts that section 11-6 of the Code is unconstitutional and represents an improper exercise of state power because prohibiting the solicitation of an adult by another adult who mistakenly believes the object of the solicitation is a minor is not causally related to the protection of children. In addition, defendant claims that Illinois courts lack jurisdiction to adjudicate his case because he communicated with "Stacy" via computer from California. For the reasons stated below, we affirm defendant's conviction.
Prior to trial, defendant moved to dismiss the indictment based upon the same arguments that he now raises on appeal, and his motions were denied. The following facts were presented at a stipulated bench trial. On April 26, 2000, Cook County sheriff's detective Michael Anton logged onto a Internet site titled "sex" and assumed the identity of a 14-year-old girl named "Stacy." Defendant, who was 53 years old and lived in Tomales, California, communicated privately with "Stacy" for about two hours using his home computer. The State entered into evidence a transcript of their on-line conversation, which is included in the record.
We relate only the pertinent portions. Defendant told "Stacy" that he was 46 years old. "Stacy" replied that she would "be 15 real soon." Defendant said his flight would stop in Chicago the following day and suggested they meet at O'Hare and "find a private place and be together." Defendant said he wanted to rub her chest and vagina and that they "would find a place in the airport without many people and sit together" and they could be under a blanket so no one would see what they did. Defendant told "Stacy" his flight number and asked her to meet him at his gate. Defendant said that if she was ready tomorrow, they could "find a place," perhaps a restroom, where he could put his penis in her vagina; he later stated, "I can't promise we can do it. It will depend if we can find a place." "Stacy" told defendant her last name was Hugh and she would wear her school uniform.
When defendant arrived at O'Hare, a female sheriff's detective dressed as "Stacy" met him at his gate. The female detective approached defendant and said his name. Defendant replied, "Yes, I thought it was you, but I wasn't sure. It's good that you wore your uniform. Then I knew it was you." After further conversation between the female detective and defendant, Detective Anton asked defendant who he was meeting. Defendant said he was meeting Stacy Hugh. Defendant was placed under arrest. After his arrest, defendant told Anton and a prosecutor that he thought "Stacy" was "about 15" years old. The remainder of defendant's statement was consistent with the evidence presented at trial. The trial court convicted defendant of two counts of indecent solicitation of a child with the intent to commit aggravated criminal sexual abuse, pursuant to section 11-6(c)(3) of the Code (720 ILCS 5/11-6(c)(3) (West 2000)). Those counts were premised upon defendant's stated intent to touch the vagina of a minor child. The trial court acquitted defendant on a third count of indecent solicitation, stating that although the parties stipulated that defendant had suggested sexual intercourse, defendant's intent on that issue "seem[ed] to be unresolved."
On appeal, defendant first challenges the constitutionality of the statute under which he was convicted, arguing that the law violates his "first amendment right to freedom of thought and belief." He asserts that his conviction was "a function of one element only - his belief that he was speaking to a child" and that the only act that accompanied his belief was the communication with Detective Anton, an adult. Defendant claims that because he did not commit an illegal act, he was punished only for his "bad state of mind." *fn1
Section 11-6 of the Code provides:
"A person of the age of 17 years and upwards commits the offense of indecent solicitation of a child if the person, with the intent that the offense of aggravated criminal sexual assault, criminal sexual assault, predatory criminal sexual assault of a child, or aggravated criminal sexual abuse be committed, knowingly solicits a child or one whom he or she believes to be a child to perform an act of sexual penetration or sexual conduct as defined in Section 12-12 of this Code." (Emphasis added.) 720 ILCS 5/11-6(a) (West 2000). The statute defines "solicit" as:
"to command, authorize, urge, incite, request, or advise another to perform an act by any means including, but not limited to, in person, over the phone, in writing, by computer, or by advertisement of any kind." 720 ILCS 5/11- 6(b) (West 2000). "Child" is defined as "a person under 17 years of age." 720 ILCS 5/11-6(b) (West 2000).
The criminal act defined by the statute is knowingly soliciting a child or one believed to be a child to perform an act of sexual penetration or sexual conduct, with the intent that the conduct be committed. 720 ILCS 5/11-6(a) (West 2000). The offense of solicitation is complete when the principal offense is commanded, encouraged or requested with the intent that it be committed. People v. Edwards, 243 Ill. App. 3d 280, 289, 611 N.E.2d 1196, 1202 (1993) (discussing solicitation to commit murder); see also People v. Schnurr, 206 Ill. App. 3d 522, 533, 564 N.E.2d 1336, 1344 (1990). "Whether or not the actual crime took place is meaningless under the applicable statute. (Ill. Rev. Stat. 1991, ch. 38, par. 8-1 [now 720 ILCS 5/8-1 (West 2000)]). Defendant's offense was complete when the words at issue were spoken. ***" Edwards, 243 Ill. App. 3d at 289, 611 N.E.2d at 1202.
Defendant argues that although he intended to commit a sexual act with a child, he committed no crime by speaking words of solicitation to an adult. We disagree. Defendant is being punished for his intent to engage in sexual activity with someone he admittedly believed to be under the age of 17 and his solicitation of that activity. The fact that defendant's words were transmitted to an adult does not negate defendant's belief that he was speaking to a minor, which is the culpable act defined by the statute. *fn2 The specific intent required to prove the elements of the offense of solicitation can be inferred from the surrounding circumstances and acts of the defendant. People v. Lewis, 84 Ill. App. 3d 556, 561, 406 N.E.2d 11, 15 (1980). Defendant's trip to Illinois for the admitted purpose of meeting a girl he knew to be "about 15" exhibited his intent to engage in the sexual activity discussed on the Internet.
Regarding defendant's attempt to claim first amendment protection for the substance of his on-line conversation with "Stacy," the element of criminal intent "transforms mere recitation of 'loose' words which may mandate first amendment protection into the offense of solicitation." Lewis, 84 Ill. App. 3d at 561, 406 N.E.2d at 15. It would be impossible for the act of solicitation to occur without the exchange of words between offender and victim, and defendant's "beliefs" and his discussions with children or those he believes to be children regarding sexual activity do not rise to the level of constitutionally protected speech. See, e.g., City of Chicago v. Powell, 315 Ill. App. 3d 1136, 1145-46, 735 N.E.2d 119, 126-27 (2000); People v. Bailey, 167 Ill. 2d 210, 227, 657 N.E.2d 953, 961 (1995) (in stalking case, "[w]here speech is an integral part of unlawful conduct, it has no constitutional protection"); People v. Williams, 133 Ill. 2d 449, ...