dissenting:
Section 5.1 of the Wrongs to Children Act (720 ILCS 150/5.1 (West 1992)) imposes on parents a duty to take “reasonable steps” to prevent the commission or future occurrence of criminal sexual abuse of their children. Although my colleagues find this standard problematic, I do not believe that it renders the statute unconstitutionally vague. A penal statute comports with due process so long as the statute’s prohibitions are sufficiently definite,' when measured by common understanding and practices, to give a person of ordinary intelligence fair warning as to what conduct is prohibited, and the statute marks boundaries sufficiently distinct for judges and juries fairly to administer the law in accordance with the intent of the legislature. People v. Hickman, 163 Ill. 2d 250, 256-57 (1994).
Section 5.1 satisfies these requirements. While the statute does not specifically enumerate what constitute “reasonable steps” to prevent the commission or future occurrence of criminal sexual abuse, it is not alone in this regard. A similar standard has been employed successfully in many other areas of the law. For example, section 1(D)(m) of the Adoption Act (750 ILCS 50/ 1(D)(m) (West 1998)) provides that where a child has been removed from a parent by the State, the parent’s failure to make “reasonable efforts” to correct the conditions that were the basis for removal of the child is grounds for finding the parent unfit. As a matter of common law, hospitals and physicians must take “reasonable steps” to avoid a foreseeable tragedy in their facility. See Winger v. Franciscan Medical Center, 299 Ill. App. 3d 364, 375 (1998). Under the Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 1998)), law enforcement officials have a duty to promptly undertake “all reasonable steps” to assist persons protected by the Act. Calloway v. Kinkelaar, 168 Ill. 2d 312, 326 (1995). Tort law dictates that if an accident is reasonably foreseeable, a party is charged with responsibility to take “reasonable steps” to avoid it. See Cannon v. Commonwealth Edison Co., 250 Ill. App. 3d 379, 384-85 (1993).
Whether a party has acted reasonably will necessarily depend on the facts and circumstances of each particular case. What action is reasonable under the circumstances is not always easy to assess. Experience has shown, however, that when dealing with diverse and unpredictable situations, a “reasonableness” standard is the best measure for judging human conduct. Accordingly, the “reasonable man” standard has become a fundamental part of our jurisprudence. We constantly call upon citizens and law enforcement officials to follow and apply this standard. Again, examples are easy to summon. “Reasonableness” plays a pivotal role in assessing the legality of police stops. People v. Gonzalez, 184 Ill. 2d 402, 422-24 (1998). It is integral to the law of self-defense (People v. Morgan, 187 Ill. 2d 500, 533 (1999)) and the law governing trade secrets (765 ILCS 1065/2(d) (West 1998); Jackson v. Hammer, 274 Ill. App. 3d 59, 66-67 (1995)).
The majority has not cited any authority for the proposition that a “reasonableness” standard renders a criminal statute unconstitutionally vague, and I see no basis for reaching that conclusion with respect to section 5.1. Even if one could hypothesize circumstances in which application of the statute would be uncertain, that is not the test. A statute is unconstitutionally vague on its face only if it is incapable of any valid application (People v. Wawczak, 109 Ill. 2d 244, 249 (1985)), i.e., where “ ‘no set of circumstances exists under which the [statute] would be valid.’ ” In re C.E., 161 Ill. 2d 200, 211 (1994), quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987).
Section 5.1 is not infirm under this standard. There are numerous instances in which application of the statute would be proper. For example, a mother who gave express permission to one of her adult male friends to have sex with her 12-year-old daughter would clearly fall within the statute’s prohibitions.
Because there are valid applications for the statute and because the law does not involve first amendment rights, the determination as to whether the statute is constitutionally infirm must be made in the factual context of this particular case. Russell v. Department of Natural Resources, 183 Ill. 2d 434, 442 (1998). Maness does not have standing to argue that the statute might be vague as applied to someone else. See People v. Jihan, 127 Ill. 2d 379, 385 (1989). A defendant may be prosecuted under a statute without violating her due process rights if her conduct clearly falls within the statutory proscription even though the statute may be vague as to other conduct. People v. Anderson, 148 Ill. 2d 15, 28 (1992).
What Maness is alleged to have done in this case clearly falls within the prohibitions of section 5.1 of the Wrongs to Children Act. Maness knowingly permitted Leonard Owens, Jr., a 17-year-old boy, to repeatedly commit criminal sexual abuse of her 13-year-old daughter. Although Maness confronted the couple about their activities, counseled them and expressed her disapproval, the record also shows that she facilitated the criminal sexual abuse by allowing Owens to sleep with her daughter in her daughter’s bedroom. When Owens had sex with Maness’ daughter, it was usually in the bedroom and usually while Maness and her husband were at home. Maness was aware of this sexual activity and took no steps to stop it. Her view was that if her daughter was going to have sex with Owens, it was safer if she did so at home where Maness had some control.
Maness’ contention that she was uncertain as to the law’s application is unpersuasive. While persons of ordinary intelligence may sometimes be left to speculate as to what constitute “reasonable steps” to prevent the commission of criminal sexual abuse, this is not one of those situations. Maness is not being prosecuted because of how she counseled her daughter regarding her sexuality or because she obtained birth control medication and prophylactics for her daughter to use. Maness’ problem is that the law in Illinois prohibits 17-year-olds from having sex with 13-year-olds, and Maness repeatedly and expressly allowed a 17-year-old to have sex with her daughter in her house. Any person of ordinary intelligence would understand that such conduct constitutes a failure to take “reasonable steps” to prevent criminal sexual abuse within the meaning of the law.
There is likewise no merit to Maness’ contention that the statute is invalid because it unduly infringes on a parent’s right to raise her child. Under the fourteenth amendment, parents have a “fundamental liberty interest *** in the care, custody, and management of their child[ren,]” with which the government may not interfere unduly. Santosky v. Kramer, 455 U.S. 745, 753-54, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394-95 (1982). Parental autonomy, however, is not absolute. See Lehman v. Stephens, 148 Ill. App. 3d 538, 547 (1986). In matters concerning child abuse and neglect, a parent’s rights yield to the state’s interest in protecting its children. American Federation of State, County & Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299, 319 (1996).
The right to be a parent does not encompass the right to abuse one’s child or to allow one’s child to be abused. If Maness had knowingly allowed Owens to inject her daughter with heroin and provided the couple with a place in her home where the drugs could be injected, there would be no question that Maness could be prosecuted for child endangerment (720 ILCS 5/12 — 21.6 (West 1998)) or worse, without offending the constitution. The result should not be different because the abuse involves illegal sex rather than illegal drugs.
For the foregoing reasons, the judgment of the circuit court should be reversed and the cause should be remanded for further proceedings. I therefore dissent.
JUSTICES MILLER and McMORROW join in this dissent.