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People v. Conroy

Court of Appeals of Illinois, Second District

November 12, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
SHERRY J. CONROY, Defendant-Appellant.

          Appeal from the Circuit Court of Du Page County No. 17-CM-1359 Honorable Alexander F. McGimpsey, Judge, Presiding.

          JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Hutchinson and Schostok concurred in the judgment and opinion.

          OPINION

          BURKE, JUSTICE

         ¶ 1 Following a bench trial, defendant, Sherry J. Conroy, was convicted of one count of prostitution. 720 ILCS 5/11-14(a) (West 2016). On direct appeal, defendant concedes that her conduct meets the statutory definition of the offense, but she argues that section 11-14(a) of the Criminal Code of 2012 is unconstitutional. Defendant contends that (1) adults have a fundamental substantive due process right to engage in private, consensual sexual activity, without governmental intervention or fear of criminal liability, and (2) section 11-14(a), as applied to her, impermissibly infringes on that right. Defendant attempts to characterize the right affected as a fundamental right to privacy, when in fact she is asserting a constitutional right to the commercial sale of sex. No such right exists, and section 11-14(a) is rationally related to the legitimate governmental interest in prohibiting prostitution. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 The underlying facts are undisputed. Officer James Peterson of the Addison Police Department testified that, on June 8, 2017, he and 8 to 10 detectives and uniformed officers conducted an undercover "sting" operation at a hotel to investigate prostitution. The officers rented two rooms with an adjoining door. They searched the Internet for advertisements that were "sexual in nature," and they found one on backpage.com. Officer Peterson called the telephone number listed in the ad and spoke with defendant. The officer and defendant exchanged text messages and arranged to meet at the hotel. Defendant arrived at Officer Peterson's room while the other officers waited in the adjoining room.

         ¶ 4 Defendant and Officer Peterson exchanged greetings, and defendant sat on the bed. Defendant told Officer Peterson that "it would be $250" for an hour of "exotic massage." She placed a condom on the bed and took off her shirt. Officer Peterson removed all of his clothing and reclined on the bed. Defendant touched Officer Peterson's sex organ, and he signaled the officers next door to storm the room and arrest defendant. Defendant was charged with a misdemeanor violation of section 11-14(a).

         ¶ 5 Defendant filed a motion to dismiss the charge on constitutional grounds. The trial court denied the motion, citing People v. Williams, 349 Ill.App.3d 273 (2004), which rejected a similar challenge to section 11-14(a). Following a bench trial, defendant was found guilty, sentenced to 12 months' court supervision, and ordered to pay court costs and to undergo testing for sexually transmitted diseases and HIV. This timely appeal followed.

         ¶ 6 II. ANALYSIS

         ¶ 7 A. Levels of Constitutional Scrutiny

         ¶ 8 Section 11-14(a) provides that

"[a]ny person who knowingly performs, offers or agrees to perform any act of sexual penetration as defined in Section 11-0.1 of this Code for anything of value, or any touching or fondling of the sex organs of one person by another person, for anything of value, for the purpose of sexual arousal or gratification commits an act of prostitution." 720 ILCS 5/11-14(a) (West 2016).

         Defendant concedes that her conduct violated the statute, but she challenges its constitutionality.

         ¶ 9 Statutes are presumed constitutional, and the burden of rebutting that presumption is on the party challenging the statute to clearly demonstrate a constitutional violation. Napleton v. Village of Hinsdale,229 Ill.2d 296, 306 (2008). A court has a duty to uphold the constitutionality of a statute when reasonably possible, and, therefore, a court will resolve any doubt in a statute's construction in favor of the statute's validity. Napleton, 229 ...


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