dissenting:
It is expressly required by the statutory provisions cited in the majority opinion that one charged with a sexual crime against a child under the age of 13 years shall, by action of the judge of the trial court, be required to undergo a psychiatric examination. The examination shall be by two psychiatrists appointed by the court for that purpose and a report in writing of the result of their examination is to be delivered to the person charged. The majority opinion concludes that noncompliance with that statutory provision, while error, is harmless. Tire majority then proceeds to equate the examination there required with the issue of competency. Its conclusion that the failure to have the examination is harmless error is based upon a determination that the defendant was otherwise determined to be competent. In this case, and in People v. Newbern 16 Ill.App.3d 1037, 307 N.E.2d 439, the court seems to conclude that the legislative requirement for psychiatric examination is misplaced statutorily or without legislative focus. I do not agree.
First, it seems to me that the examination is required under the holding in People v. Flowers, 51 Ill.2d 25, 281 N.E.2d 299; under our holding in People v. Allen, 7 Ill.App.3d 249, 287 N.E.2d 171; and inferentially in the opinion in People v. Hedenberg, 9 Ill.App.3d 597, 291 N.E.2d 848. The purpose is not to ascertain the defendant’s competency but rather to ascertain and to give the prosecuting attorney behavioral science information so as to enable the prosecutor to make an informed judgment as to whether he should proceed by criminal prosecution for the offense or civil commitment under the provisions of the Sexually Dangerous Persons Act. A defendant can be incompetent to stand trial and still subject to classification as a sexually dangerous person, and conversely, a defendant can be competent to stand trial and yet still be subject to commitment civilly for treatment as a sexually dangerous person in lieu of criminal proceedings.