In re Maurice D.

2015 IL App (4th) 130323
FILED
May 29, 2015
Carla Bender
NO. 4-13-0323 4th District Appellate
Court, IL
IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: MAURICE D., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) McLean County
v. ) No. 12JD47
MAURICE D., )
Respondent-Appellant. ) Honorable
) Elizabeth A. Robb,
) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Pope and Justice Knecht concurred in the judgment and opinion.

OPINION
¶1 Following a February 2013 bench trial, the trial court adjudicated respondent

delinquent, finding the evidence supported a conviction for criminal sexual abuse (720 ILCS

5/11-1.50(c) (West 2010)) beyond a reasonable doubt. In April 2013, the court sentenced

respondent to 12 months' conditional discharge and ordered him to serve 30 days in the McLean

County jail, with credit for 7 days served. As a result of his conviction, respondent must register

as a sex offender. 730 ILCS 150/3-5(a) (West 2010).

¶2 Respondent appeals, asserting that the prosecution of a minor who engages in

"consensual" sexual activity with another close-in-age minor for an imprisonable misdemeanor

offense violates (1) the cruel and unusual punishment clause of the eighth amendment to the

United States Constitution and the proportionate penalties clause of the Illinois Constitution and

(2) substantive due process. We affirm.
¶3 I. BACKGROUND

¶4 In July 2012, the State filed a petition for adjudication of wardship alleging that

respondent, born in 1994, committed the offense of criminal sexual abuse (720 ILCS 5/11-

1.50(c) (West 2010)), a Class A misdemeanor (720 ILCS 5/11-1.50(d) (West 2010)).

Specifically, the petition alleged that on or about August 22, 2011, respondent—who was 17

years old at the time—"knowingly committed an act of sexual penetration with D.F. involving

the penis of respondent minor and the vagina of D.F.," and that the act was committed at a time

when D.F. was at least 13 years old but under the age of 17 and respondent was less than 5 years

older than D.F.

¶5 On February 25, 2013, respondent's bench trial commenced. The specific details

of the evidence presented are not relevant to the disposition of this appeal. We do note, however,

the evidence revealed that D.F. was 15 years old and respondent was 17 years old at the time of

the offense and that there was conflicting evidence on whether the female victim voluntarily

engaged in the sexual act. At the close of evidence, the trial court adjudicated respondent

delinquent, finding the State proved beyond a reasonable doubt that respondent committed the

offense of criminal sexual abuse (720 ILCS 5/11-1.50(c) (West 2010)). The court did not offer

an opinion regarding whether the female victim voluntarily engaged in the sexual act.

¶6 On April 8, 2013, the trial court sentenced respondent to 12 months' conditional

discharge and ordered him to serve 30 days in the McLean County jail, with credit for 7 days

served. As a result of his conviction, respondent must register as a sex offender. 730 ILCS

150/3-5(a) (West 2010).

¶7 This appeal followed.

¶8 II. ANALYSIS

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¶9 On appeal, respondent argues that the prosecution of a minor who engages in

"consensual" sexual activity with another close-in-age minor for an imprisonable misdemeanor

offense (1) constitutes cruel and unusual punishment in violation of the eighth amendment to the

United States Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of

the Illinois Constitution (Ill. Const. 1970, art. I, § 11) and (2) violates substantive due process.

¶ 10 A. State's Challenges to Respondent's Appeal

¶ 11 Before addressing respondent's claims on appeal, we first address the State's

contentions that (1) this appeal is moot and (2) respondent lacks standing.

¶ 12 1. Mootness

¶ 13 The State asserts that this appeal is moot because respondent has already served

his 12-month conditional-discharge sentence and no exception to the mootness doctrine applies.

¶ 14 "An appeal is moot if no controversy exists or if events have occurred which

foreclose the reviewing court from granting effectual relief to the complaining party." In re

Shelby R., 2013 IL 114994, ¶ 15, 995 N.E.2d 990. "As a general rule, courts in Illinois do not

decide moot questions, render advisory opinions, or consider issues where the result will not be

affected regardless of how those issues are decided." In re Alfred H.H., 233 Ill. 2d 345, 351, 910

N.E.2d 74, 78 (2009).

¶ 15 In this case, respondent was sentenced to 12 months' conditional discharge on

April 8, 2013. As the State correctly points out, respondent has already served his sentence of

conditional discharge. The State cites Shelby R., 2013 IL 114994, ¶ 15, 995 N.E.2d 990, for the

proposition that, "[w]here *** [an] appeal involves the validity of a sentence, such appeal is

rendered moot if the sentence has been served." Although respondent did not reply to the State's

contention his appeal is moot in his reply brief, we note that respondent is not challenging his

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conditional-discharge sentence. Rather, respondent is challenging his prosecution and

subsequent conviction—a conviction which mandates sex-offender registration—on

constitutional grounds. See In re Christopher K., 217 Ill. 2d 348, 359, 841 N.E.2d 945, 952

(2005) ("the completion of a defendant's sentence renders a challenge to the sentence moot, but

not a challenge to the conviction" because "[n]ullification of a conviction may hold important

consequences for a defendant"). Here, for example, nullification of respondent's conviction

would eliminate the requirement that he register as a sex offender. Because the issues raised by

respondent in this appeal concern the validity of his prosecution and conviction for criminal

sexual abuse, we conclude his appeal is not moot.

¶ 16 2. Standing

¶ 17 The State further contends that respondent does not have standing to bring the

above arguments because the underlying sexual activity at issue here was not "consensual" or

"normative." Respondent counters that the offense for which he was convicted does not require

proof of force.

¶ 18 " 'The purpose of the doctrine of standing is to ensure that courts are deciding

actual, specific controversies, and not abstract questions or moot issues.' " In re M.I., 2013 IL

113776, ¶ 32, 989 N.E.2d 173 (quoting In re Marriage of Rodriguez, 131 Ill. 2d 273, 279-80,

545 N.E.2d 731, 734 (1989)). "In order to have standing to bring a constitutional challenge, a

person must show himself to be within the class aggrieved by the alleged unconstitutionality."

Id.

¶ 19 The statute at issue provides that "[a] person commits criminal sexual abuse if that

person commits an act of sexual penetration or sexual conduct with a victim who is at least 13

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years of age but under 17 years of age and the person is less than 5 years older than the victim."

720 ILCS 5/11-1.50(c) (West 2010).

¶ 20 The statute under which respondent was charged and adjudicated delinquent

required only that the State prove respondent committed sexual penetration or sexual conduct

with D.F. at a time when D.F. was at least 13 years of age but less than 17 years of age and

respondent was less than 5 years older than her. See 720 ILCS 5/11-1.50(c) (West 2010).

Whether D.F. voluntarily engaged in the sexual act is not relevant or necessary for an

adjudication of delinquency for the charged offense. Thus, respondent is within the class of

persons affected by the alleged unconstitutionality and has standing.

¶ 21 B. Standard of Review

¶ 22 A strong presumption exists that statutes are constitutional, and a reviewing court

must find a statute constitutional whenever reasonably possible. People v. Mosley, 2015 IL

115872, ¶ 22. "To overcome this presumption, the party challenging the statute must clearly

establish its invalidity." Id. "A challenge to the facial validity of a statute is the most difficult

challenge to mount successfully because an enactment is invalid on its face only if no set of

circumstances exists under which it would be valid." In re Shermaine S., 2015 IL App (1st)

142421, ¶ 15, 25 N.E.3d 723. If a statute can be validly applied in any situation, a facial

challenge must fail. Id. (quoting People v. Kitch, 239 Ill. 2d 452, 466, 942 N.E.2d 1235, 1243

(2011)). The constitutionality of a statute is reviewed de novo. Mosley, 2015 IL 115872, ¶ 22.

¶ 23 C. Respondent's Eighth Amendment and Proportionate Penalties Challenge

¶ 24 Respondent first asserts that the prosecution of a minor who engages in

"consensual" sexual activity with another close-in-age minor for an imprisonable misdemeanor

offense constitutes cruel and unusual punishment in violation of the eighth amendment to the

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United States Constitution and the proportionate penalties clause of the Illinois Constitution.

According to respondent, "the current range of punishment is unnecessarily harsh and out of

proportion to the social harm it causes."

¶ 25 The cruel and unusual punishment clause of the United States Constitution, which

is made applicable to the states through the fourteenth amendment, provides that "[e]xcessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted." U.S. Const., amends. VIII, XIV. The proportionate penalties clause of the Illinois

Constitution—which is coextensive with the eighth amendment—provides that "[a]ll penalties

shall be determined both according to the seriousness of the offense and with the objective of

restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11; In re Rodney H., 223

Ill. 2d 510, 520-21, 861 N.E.2d 623, 630 (2006).

¶ 26 In Rodney H., the Illinois Supreme Court held that neither the proportionate

penalties clause of the Illinois Constitution nor the eighth amendment's cruel and unusual

punishment clause of the United States Constitution apply to juvenile proceedings initiated by

adjudication of wardship. The court explained that delinquency proceedings are protective in

nature and that the overall goal of the Juvenile Court Act of 1987 (Juvenile Court Act) (705

ILCS 405/1-1 to 7-1 (West 2010))—even after the1999 amendments which shifted the " 'singular

goal of rehabilitation to include the overriding concerns of protecting the public and holding

juvenile offenders accountable for violations of the law' "—is to correct and rehabilitate minors,

not punish them. Rodney H., 223 Ill. 2d at 520, 831 N.E.2d at 630 (quoting In re A.G., 195 Ill.

2d 313, 317, 746 N.E.2d 732, 735 (2001)). As such, the court reasoned that a petition for

adjudication of wardship is neither criminal in nature nor a direct action by the State to inflict

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punishment upon a juvenile, and accordingly, neither the cruel and unusual punishment clause

nor the proportionate penalties clause applies in such cases. Id. at 520-21, 831 N.E.2d at 630.

¶ 27 Here, the proceedings were initiated by the State's filing of a petition for

adjudication of wardship that alleged respondent committed the offense of criminal sexual abuse

(720 ILCS 5/11-1.50(c) (West 2010)). Respondent was tried in the juvenile court and

adjudicated delinquent of the charged offense rather than convicted of a criminal offense. Based

on the supreme court's precedent in Rodney H., we find that neither the eighth amendment's cruel

and unusual punishment clause of the United States Constitution nor the proportionate penalties

clause of the Illinois Constitution apply to respondent's juvenile adjudication.

¶ 28 We note that in his reply brief, respondent cites People v. Perea, 347 Ill. App. 3d

26, 36, 807 N.E.2d 26, 35 (2004) (quoting In re M.C., 319 Ill. App. 3d 713, 720, 745 N.E.2d 122,

127 (2001)), for the proposition that the Juvenile Court Act is statutory in nature, and thus, " 'the

legislature has the authority to define the limits of the juvenile system.' " Respondent then cites

to the Juvenile Court Act, which provides as follows: "In all procedures under this Article,

minors shall have all the procedural rights of adults in criminal proceedings, unless specifically

precluded by laws that enhance the protection of such minors. Minors shall not have the right to

a jury trial unless specifically provided by this Article." 705 ILCS 405/5-101(3) (West 2010).

According to respondent, based on the above, he is entitled to all the constitutional protections an

adult would have with the exception of trial by jury. While the Juvenile Court Act clearly

provides a juvenile with all the procedural rights available to adults in criminal proceedings,

unless otherwise precluded, we do not agree its reach extends to substantive rights, such as those

provided by the constitutional provisions respondent challenges herein.

¶ 29 D. Substantive Due Process

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¶ 30 Respondent next argues that the prosecution of a minor who engages in

"consensual" sexual activity with another close-in-age minor for an imprisonable misdemeanor

offense violates the substantive due process clauses of the United States and Illinois

Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2). Specifically, respondent

asserts that "it is unreasonable to prohibit sexual conduct between close-in-age minors, as

charged in the present case, in an effort to protect minors because the prohibition imposes a

stigmatizing and harsh penalty on normal developmental conduct of teenagers." According to

respondent, the available penalties for a violation of section 11-1.50(c) of the Criminal Code of

1961 (Code) (720 ILCS 5/11-1.50(c) (West 2010)) are "too harsh to be a reasonable method of

protection."

¶ 31 The due process clause of the United States Constitution provides that no "State

[shall] deprive any person of life, liberty, or property, without due process of law." U.S. Const.,

amend. XIV, § 1. Similarly, the due process clause of the Illinois Constitution provides that

"[n]o person shall be deprived of life, liberty or property without due process of law." Ill. Const.

1970, art. I, § 2. " 'Under substantive due process ***, a statute is unconstitutional if it

impermissibly restricts a person's life, liberty or property interest.' " People v. Johnson, 225 Ill.

2d 573, 584, 870 N.E.2d 415, 421 (2007) (quoting People v. R.G., 131 Ill. 2d 328, 342, 546

N.E.2d 533, 540 (1989)).

¶ 32 Respondent concedes that where no fundamental liberty interest is at stake—as is

the case here—the challenged law need only survive the rational basis test. People v. Hollins,

2012 IL 112754, ¶ 15, 971 N.E.2d 504. "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." Id. "In applying the rational basis test, the court must first ascertain the

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statute's public purpose in order to test whether its provisions reasonably implement that

purpose." Id. ¶ 18, 971 N.E.2d 504. "If there is any conceivable set of facts to show a rational

basis for the statute, it will be upheld." Johnson, 225 Ill. 2d at 585, 870 N.E.2d at 422.

¶ 33 The statute at issue here provides that a "person [who] commits an act of sexual

penetration or sexual conduct with a victim" between the ages of 13 and 16, when the person is

less than five years older than the victim, commits the Class A misdemeanor offense of criminal

sexual assault and is required to register as a sex offender. 720 ILCS 5/11-1.50(c), (d) (West

2010); 730 ILCS 150/3-5(a) (West 2010). In People v. Reed, 148 Ill. 2d 1, 9, 591 N.E.2d 455,

458 (1992), the Illinois Supreme Court noted that the criminal sexual abuse statute (Ill. Rev. Stat.

1987, ch. 38, ¶ 12-15(c)) (now 720 ILCS 5/11-1.50(c) (West 2010)) and the aggravated criminal

sexual abuse statute (Ill. Rev. Stat. 1987, ch. 38, ¶ 12-16(d)) (now 720 ILCS 5/11-1.60(d) (West

2010)) "make clear that their overall purpose is to protect children who are 13 to 16 years old

from the consequences of premature sexual experiences."

¶ 34 In In re T.W., 291 Ill. App. 3d 955, 962, 685 N.E.2d 631, 636 (1997), the First

District noted, "[t]he legislature has determined that section 12-15(b) is a rational means by

which 9- to 16-year-olds may be protected from the consequences of premature sexual

experiences." Section 12-15(b), which is now section 11-1.50(b) of the Code, makes it a crime

for a person under the age of 17 to engage in sexual penetration or sexual conduct with a victim

who is between the ages of 9 and 16. Id. at 960, 685 N.E.2d at 635. The court concluded that

section 12-15(b) of the Code "does not violate due process because the statute is rationally

related to the legitimate state goal of protecting children 9 to 16 years old from the consequences

of premature sexual experiences." Id. at 962, 685 N.E.2d at 636. Likewise, the court further

concluded that section 12-15(c) of the Code, now section 11-1.50(c), bears a rational relationship

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to the legitimate state interest of protecting children 13 to 16 years of age from premature sexual

experiences. Id. at 963, 685 N.E.2d at 637 (citing Reed, 148 Ill. 2d 1, 591 N.E.2d 455). While

recognizing that the maturity of teenagers who are close in age "[is] more nearly equal and the

opportunity for overreaching is diminished," the court noted the closeness in age did not override

the legislature's purpose in enacting the statute, which was to protect 13 to 16 year olds from

engaging in premature sexual behavior regardless of their partners' age. Id.

¶ 35 Further, in In re J.W., 204 Ill. 2d 50, 66, 787 N.E.2d 747, 757 (2003), the Illinois

Supreme Court was tasked with determining whether requiring a juvenile to register as a sex

offender for the rest of his natural life violated substantive due process. The court held that

"there is a rational relationship between the registration of juvenile sex offenders and the

protection of the public from such offenders." Id. at 72, 787 N.E.2d at 760. "Requiring the

registration of juvenile sex offenders *** is reasonable in light of the strict limits placed upon

access to that information." Id. In In re J.R., 341 Ill. App. 3d 784, 793, 793 N.E.2d 687, 695

(2003), the First District followed the principles stated by the supreme court in J.W. and

concluded that "[t]he [sex-offender-]registration requirement under the Act does not violate

substantive due process because there is a rational relationship between the registration of

juvenile sex offenders and the protection of the public from juvenile sex offenders."

¶ 36 While recognizing the prior holdings of our courts, specifically of T.W.,

respondent asserts that "now is a time for different judges to make a judgment which should fall

differently." To support his contention that this court should find a minor who engages in sexual

behavior with another close-in-age minor should not be subjected to prosecution, he cites a

number of articles, studies, and reports. He notes, "[c]arrying the label as a sex offender is 'likely

to carry with it shame, humiliation, ostracism, loss of employment and decreased opportunities

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for employment, perhaps even physical violence, and a multitude of other adverse

consequences.' " (quoting Doe v. Pataki, 3 F. Supp. 2d 456, 468 (S.D.N.Y. 1998)). In addition

to the stigma which attaches to sex offenders by virtue of their sex-offender status alone,

respondent notes that the sex-offender-registration requirement imposes additional burdens,

including residency-reporting requirements and place-of-domicile restrictions, all of which carry

felony criminal penalties if not complied with. According to respondent, "the Juvenile Court Act

provides for more reasonable methods of accomplishing the state objective of protecting

minors."

¶ 37 While we acknowledge respondent's invitation to reconsider the reasonableness of

the criminal sexual abuse statute under which he was charged, or to consider whether a more

reasonable method to protect juveniles from premature sexual experiences is available, we must

decline. Based on the precedent of Reed, T.W., and J.W., we find that the criminal sexual abuse

statute at issue in this case—under which respondent was charged, convicted, and sentenced—is

rationally related to the legislative purpose of protecting 13 to 16 year olds from premature

sexual experiences.

¶ 38 In closing, we note that in its recent report, "Improving Illinois' Response to

Sexual Offenses Committed by Youth," the Illinois Juvenile Justice Commission recommends

that juveniles be removed from the state's sex-offender registry—which it opines is counter-

productive—and that Illinois stop imposing categorical registration requirements upon juveniles.

Illinois Juvenile Justice Commission, Improving Illinois' Response to Sexual Offenses

Committed by Youth (2014), available at http://ijjc.illinois.gov/youthsexualoffenses. However,

as the First District recently noted in In re M.A., 2014 IL App (1st) 132540, ¶ 42, 12 N.E.3d 805,

"[w]hether the legislature will act on the Commission's recommendations remains to be seen.

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Unless and until that happens, In re J.W. guides the analysis of the issue of whether the Act's

provisions bear a rational relationship to the protection of the public." See also J.W., 204 Ill. 2d

at 72, 787 N.E.2d at 760 ("It is best left to the legislature and not the courts to determine whether

a statute is wise or whether it is the best means to achieve the desired result.").

¶ 39 III. CONCLUSION

¶ 40 For the reasons stated, we affirm the trial court's judgment.

¶ 41 Affirmed.

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