The opinion of the court was delivered by: Justice Garman
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Thomas, Karmeier, and Theis concurred in the judgment and opinion.
Justice Burke dissented, with opinion, joined by Justice Freeman.
¶ 1 Defendant, Marshall C. Hollins, was convicted following a stipulated bench trial of three counts of child pornography pursuant to section 11-20.1(a)(1)(i), (a)(1)(ii) and (a)(4) of the Criminal Code of 1961 (720 ILCS 5/11-20.1(a)(1)(i), (a)(1)(ii), (a)(4) (West 2008)), and was sentenced to eight years in the Illinois Department of Corrections. Defendant appealed, challenging the constitutionality of the child pornography statute as applied to him. The appellate court affirmed. No. 2-10-0051 (unpublished order under Supreme Court Rule 23). For the following reasons, we affirm.
¶ 3 On March 19, 2009, defendant was charged by information in the circuit court of Stephenson County with three counts of child pornography: (1) between January 1, 2008, and December 1, 2008, defendant knowingly photographed A.V., a child whom defendant knew to be under the age of 18 years, while actually engaged in an act of sexual penetration with defendant, in violation of section 11-20.1(a)(1)(i); (2) between January 1, 2008, and December 1, 2008, defendant knowingly photographed A.V., a child whom defendant knew to be under the age of 18 years, while actually engaged in an act of sexual penetration involving the sex organs of the child, in violation of section 11-20.1(a)(1)(ii); and (3) between January 1, 2008, and December 1, 2008, defendant knowingly used A.V., a child whom defendant knew to be under the age of 18 years, to appear in a photograph in which A.V. would be depicted as actually engaging in an act of sexual penetration with defendant, in violation of section 11-20.1(a)(4).
¶ 4 A motion to suppress statements made by defendant was denied by the circuit court following a hearing on June 16, 2009. In addition, defendant filed a motion to find portions of the child pornography statute unconstitutional. A "second amended motion to declare portions of statute unconstitutional" was filed on July 16, 2009. In the motion defendant admitted that, at the time of the offenses, he was 32 years old and A.V. was 17. Defendant argued that the penalty for this particular offense was too severe and that it is harsher than the penalty for a similar offense that contains identical elements. He also argued that because portions of the statute criminalize and punish legal activity, those portions are in violation of the proportionate penalties clause and therefore unconstitutional. A hearing was held on the motion on July 21, 2009, at which the trial court denied the motion.
¶ 5 On August 24, 2009, defendant waived his right to a jury trial and elected to proceed with a bench trial. On September 22, 2009, a stipulated bench trial was held. The first stipulation was from Detective Sergeant Jim Drehoble of the Freeport police department, who would testify that he investigated a complaint made by A.V.'s mother involving A.V. and defendant. She reported to police that her daughter had been having sex with defendant, a 32-year-old registered sex offender. She showed Drehoble four or five pictures depicting sexual penetration that had been sent to A.V.'s e-mail from an e-mail address she knew belonged to defendant. The mother was able to identify A.V. in the pictures because A.V.'s pubic area was shaved. When the interview was completed, Drehoble had the mother e-mail a copy of the photos to his department e-mail.
¶ 6 On January 20, 2009, Drehoble and another detective went to defendant's home and later interviewed him at the Freeport police department. Defendant advised his date of birth was September 13, 1976, and acknowledged he knew A.V. was 17 years old when they had sex. He also knew her birth date. The interview was recorded and attached to the stipulation as part of the record. Also entered as exhibits attached to the stipulation were pictures of defendant and A.V. having sex. Defendant admitted to taking the pictures of himself having sex with A.V. with his cell phone. He acknowledged that he knew A.V. was under age 18 when he had sex with her and took the pictures. Defendant acknowledged that they were in Freeport, Stephenson County, Illinois, when he took pictures of himself and A.V. having sex.
¶ 7 The second stipulation stated that A.V. would testify her birth date is February 8, 1991. She lived with her mother in Freeport. She turned 17 on February 8, 2008, and 18 on February 8, 2009. She met defendant at her home in January 2008 when she was 16. At that time they only talked with each other. She later saw defendant again at Highland College, where they were in some of the same classes together. She and defendant became reacquainted and became friends. She was 17 years old when she went to Highland and had a consensual sexual relationship with defendant. She would testify that during one of the times she had sex with defendant he took a photo or photos of them during the act of sexual intercourse. She, along with her mother, reported this relationship to Drehoble on December 1, 2008. On that date, A.V. was still 17 years old. There was no further sexual relationship between herself and defendant after December 1, 2008. She would identify defendant in court as the person with whom she had a sexual relationship and who had taken the picture or pictures of her during an act of sexual intercourse as defendant had placed his penis inside her vagina.
¶ 8 The third stipulation was that A.V.'s mother would testify that she gave birth to A.V. on February 8, 1991, and her daughter went to Highland College in Freeport. The mother had known defendant, as he was at one time a foster child in her mother's (A.V.'s grandmother's) household. She brought the pictures to Drehoble after retrieving them from her daughter's e-mail. She noticed the pictures had been sent from an e-mail address she recognized as defendant's. She knew the pictures were of A.V.'s vaginal area because her daughter's pubic area was shaved. After she discussed the matter with Drehoble, the police determined there was no crime for sexual assault or abuse offenses due to the age of her daughter. On January 20, 2009, she again made a complaint to Drehoble in relation to the pictures taken and e-mailed copies of the photos to Drehoble upon his request.
¶ 9 The trial court found defendant guilty of three counts of child pornography and sentenced him to concurrent terms of eight years' imprisonment for each count. Defendant appealed, arguing that the child pornography statute is unconstitutional as applied to him and that his convictions violated the one-act, one-crime doctrine. The appellate court rejected both of defendant's arguments and affirmed his convictions.
¶ 11 On appeal to this court defendant raises two main arguments: (1) the child pornography statute, as applied in this case, denies defendant due process of law under the United States and Illinois constitutions; and (2) the child pornography statute as applied violates the equal protection clauses of the United States and Illinois constitutions. Because we find that there is a rational basis for the child pornography statute under both due process and equal protection analyses, we affirm the judgments of the appellate and circuit courts.
¶ 12 At the time defendant was charged and convicted of his offense, the child pornography statute defined "child" as follows:
" 'Child' includes a film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer that is, or appears to be, that of a person, either in part, or in total, under the age of 18, regardless of the method by which the film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer is created, adopted, or modified to appear as such. 'Child' also includes a film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer that is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the film, videotape, photograph, or other similar visual medium or reproduction or depiction by computer is of a person under the age of 18." 720 ILCS 5/11-20.1(f)(7) (West 2008).*fn1
¶ 13 Defendant argues the statute is unconstitutional under the due process and equal protection clauses of both the United States and Illinois constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. Statutes are presumed constitutional. People v. Donoho, 204 Ill. 2d 159, 177 (2003). The party challenging the constitutionality of a statute carries the burden of proving that the statute is unconstitutional. Donoho, 204 Ill. 2d at 177. We have a duty to construe the statute in a manner that upholds the statute's validity and constitutionality, if it can be reasonably done. People v. Graves, 207 Ill. 2d 478, 482 (2003). The constitutionality of a statute is a question of law that we review de novo. Graves, 207 Ill. 2d at 482.
¶ 15 Defendant contends that this statute, as applied, violates the due process clause of both the United States and Illinois constitutions. Defendant concedes that, as this case does not implicate a fundamental right, the test for determining whether the statute complies with substantive due process is the rational basis test. People v. Dabbs, 239 Ill. 2d 277, 292 (2010). A statute will be upheld under the rational basis test so long as it bears a rational relationship to a legitimate legislative purpose and is neither arbitrary nor unreasonable. Dabbs, 239 Ill. 2d at 292.
¶ 16 In support of his due process argument, defendant raises three main contentions: (1) application of the statute to defendant does not bear a reasonable relationship to the public interest to be protected because it denies consenting adults the right to engage in private sexual activities of their choice; (2) the statute violates the Illinois Constitution's privacy clause, which provides greater privacy protections than does the United States Constitution; and (3) when viewed in the context of the Illinois sex offense statutes, the statute failed to give defendant fair notice his conduct was criminal. Defendant also points to the legislative history concerning the raising of the age of consent for pornography from 16 to 18 years old in 1985, arguing the reasons behind it were to aid in the prosecution of child pornography cases.
¶ 17 Defendant first argues that the application of the child pornography statute to persons old enough to legally consent to the private sexual activity they have chosen to photograph does nothing to accomplish the legislative purpose of protecting children from sexual exploitation and abuse. Defendant claims that here, no child was being exploited or abused. Rather, the "child" in question was a 17-year-old who, under Illinois law, could legally consent to sex and who was involved in a legal, consensual sexual relationship with her boyfriend. 720 ILCS 5/12-16(d) (West 2008).
¶ 18 In applying the rational basis test, the court must first ascertain the statute's public purpose in order to test whether its provisions reasonably implement that purpose. People v. Marin, 342 Ill. App. 3d 716, 722-23 (2003). The purpose of the child pornography statute is to prevent the sexual abuse and exploitation of children. People v. Geever, 122 Ill. 2d 313, 326 (1988). This court, citing the United States Supreme Court's decision in New York v. Ferber, 458 U.S. 747, 756-59 (1982), has noted that child pornography is intrinsically related to child sexual abuse and states have a compelling interest in safeguarding the physical and psychological health of children. People v. Alexander, 204 Ill. 2d 472, 477 (2003). "[C]hild pornography is an offense against the child and causes harm 'to the physiological, emotional, and mental health' of the child." People v. Lamborn, 185 Ill. 2d 585, 588 (1999) (quoting Ferber, 458 U.S. at 758). "Child pornography is particularly harmful because the child's actions are reduced to a recording which could haunt the child in future years, especially in light of the mass distribution system for child pornography." Lamborn, 185 Ill. 2d at 589 (citing Ferber, 458 U.S. at 759). The United States Supreme Court has also found that child pornography impacts a child's reputational interest and emotional well-being. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002).
¶ 19 Thus, the State contends that the statute, as applied, is rationally related to the state's legitimate interest in protecting the psychological welfare of children. Defendant counters that this interest is frustrated when the victim depicted in the photograph is a 17-year-old involved in a legal, consensual relationship. An identical argument ...