dissenting:
The appeal in the case at bar presents this court with its first opportunity to construe section 11 — 21 of the Criminal Code of 1961 (720 ILCS 5/11 — 21 (West 2000)). In resolving the appeal, the majority employs two contradictory analyses and, thus, provides little guidance on the proper construction of the statute. For this and other reasons, I cannot join the majority opinion and respectfully dissent.
Section 11 — 21 of the Code provides in subsection (a):
“A person who, with knowledge that a person is a child, that is a person under 18 years of age, or who fails to exercise reasonable care in ascertaining the true age of a child, knowingly distributes to or sends or causes to be sent to, or exhibits to, or offers to distribute or exhibit any harmful material to a child, is guilty of a misdemeanor.” 720 ILCS 5/11 — 21(a) (West 2000).
The statute defines harmful material and provides that “[distribute means to transfer possession of, whether with or without consideration.” 720 ILCS 5/11— 21(b)(1), (b)(3) (West 2000). “Knowingly,” pursuant to the statute, “means having knowledge of the contents of the subject matter, or recklessly failing to exercise reasonable inspection which would have disclosed the contents thereof.” 720 ILCS 5/11 — 21(b)(4) (West 2000).
At defendant’s trial, evidence established that on December 27, 2001, defendant went to the home of Richard Jurzak, her former paramour. Defendant saw Richard’s 12-year-old daughter, Jessica, in the garage and asked if Richard was home. After learning that Richard was not at home, defendant placed a sealed, stamped, business-sized envelope, addressed to Jessica’s father, on a weight bench in the garage and asked Jessica to give the envelope to her father. In addition to being sealed, the envelope was taped shut. After defendant left, Jessica opened the envelope. Inside the envelope was a letter to Richard along with several photos. Some of the photos were sexually explicit.
Defendant concedes that she knew the envelope contained some sexually explicit photos and that these pictures fit the statutory definition of material that is harmful. Consequently, the harmfulness of the photos is not at issue, nor are the depictions in the photos materially relevant to the matters on appeal.
Defendant argues that her conduct does not constitute “distribution” within the meaning of the statute because her unrebutted testimony at trial was that she never intended that the child would view the harmful material contained inside the sealed envelope. Moreover, because the envelope was securely sealed and addressed to the child’s father, defendant argues that she had no reasonable expectation that the child would ever see the harmful material contained inside the envelope. According to defendant, to prove her guilty of “knowingly distributing” harmful material to a minor, within the meaning of the statute, there must be evidence that she knew or should have known that her conduct would result in a child’s viewing harmful material. In other words, defendant contends that, interpreting section 11 — 21 properly, the offense of “distributing” harmful material is proven only if it is shown that a child was the intended recipient of the harmful material or that the defendant’s conduct created a reasonably foreseeable risk that a child would be exposed to harmful material.
The majority acknowledges that the issue to be resolved in this appeal is whether defendant “knowingly distributed” harmful material to a minor within the meaning of the statute and that this is a question of statutory construction. 215 Ill. 2d at 323-24. Recognizing that the statutory definition of the term “distribute” is “to transfer possession of,” the majority concludes that the question of whether “distribution” took place in the case at bar may be resolved by adopting the “plain and ordinary meaning” of the word “possess.” 215 Ill. 2d at 325. Accordingly, the majority determines that “distribution,” within the meaning of the statute, occurs when a minor “has or takes control of the subject property.” 215 Ill. 2d at 325. Applying this interpretation to the case at bar, the majority holds that defendant committed the offense of distributing harmful material to a minor at the moment defendant gave the sealed envelope to Jessica. 215 Ill. 2d at 326.
Under this construction of the statute, the crime is completed by the mere transference of possession of a container holding harmful material, i.e., defendant’s simple act of giving Jessica the sealed envelope containing harmful material constitutes “distribution.” Therefore, under this construction, consideration need not be given to the defendant’s intent. And risk, i.e., the foreseeability or likelihood that the defendant’s conduct would result in a child being exposed to harmful material, is not a factor to be taken into account.
Notwithstanding the above, the majority, later in the opinion, abandons its own narrow construction of the statute and adopts a construction which focuses on risk and the defendant’s intent. Addressing defendant’s claim that she did not expect Jessica to open the envelope, the majority recites several facts of the case and then states:
“As the trial court aptly concluded, under these circumstances, defendant ‘[ran] the risk *** that [Jessica] may open it.’
*** Thus, any claim by defendant that she only intended Richard to see the photographs rings hollow.” 215 Ill. 2d at 331.
At this point in the opinion, the majority is clearly engaging in an analysis that takes into consideration foreseeability, as well as defendant’s intent, when determining whether a crime has been proven. This analysis, however, is impossible to reconcile with the majority’s earlier interpretation of the statute. Because the majority adopts two contradictory positions, I cannot join the majority opinion.
The fact that the majority has adopted two, contradictory positions in its opinion is sufficient reason to reject it. But it is not the only reason I do not join. I also find the majority’s analysis to be flawed. The majority holds, initially, that the offense of “distributing” harmful material to a minor is committed by the mere transference of possession of a container holding harmful material. But the logical consequence of interpreting section 11 — 21 in this way is that criminal liability may be imposed in all situations when possession of a container is transferred, even when the container is sealed in such a way that a child would have no ability to open the container and, thus, there is no possibility that a child would ever be exposed to the harmful material inside. Such an analysis cannot be correct. The legislature could not have intended such an absurd result. See People v. Swift, 202 Ill. 2d 378, 385 (2002) (when interpreting statutes, a reviewing court must avoid constructions which would produce absurd results); People v. Pullen, 192 Ill. 2d 36, 42 (2000) (in interpreting a statute we must assume that the legislature did not intend an absurd or unjust result).
Nothing in the statutory language suggests that the legislature contemplated the situation where, as in the case at bar, harmful material is “distributed” within a sealed container, a child was not the intended recipient, and the alleged offender had no intention that the harmful material be viewed by a minor. Thus, I believe that when determining legislative intent, it would be more helpful to construe the term “distribute” in light of the statute’s purpose. See People v. Pullen, 192 Ill. 2d 36, 42 (2000) (when interpreting statutes we may consider the reason and necessity for the law and the evil intended to be remedied). In my view, the evil which the legislature intended to remedy by enacting section 11 — 21 is the exposure and the risk of exposure of children to harmful material. Thus, when interpreting section 11 — 21, it is appropriate to consider whether the person intended to expose a child to harmful material or whether the person’s conduct created a foreseeable risk of exposing a child to harmful material.
The affirmative defenses available under the statute support this interpretation. Pursuant to section 11— 21(e)(3), it is not an offense under the statute if a person distributes harmful material to a minor if the person demanded proof of age and reasonably believed, based on upon documents proffered, that the recipient of the harmful material was not a minor. Also, under section 11 — 21(e)(4), it is not an offense within the meaning of the statute if the harmful material was sold or distributed through an advertisement “as where the.order or request for such harmful material was transmitted by mail, telephone, or similar means of communication, and delivery of such harmful material to the child was by mail, freight, or similar means of transport,” and the advertisement “required the purchaser to certify that he was not under 18 years of age and that the purchaser falsely stated that he was not under 18 years of age.” Based on these available affirmative defenses, a person who transfers possession of harmful material to a child has not violated the statute if the person can show that there was no intent that the harmful material be sold to, given to, sent to, or viewed by a child, or by showing that the child obtained the harmful material through his or her own purposeful actions.
Also, the statute, itself, makes reference to intent when, in subsection (c), entitled “Interpretation of Evidence,” it provides that “[t]he predominant appeal to prurient interest of the material” may be judged with reference to the “intended or probable recipient group.” 720 ILCS 5/11 — 21(c) (West 2000).
The fact that the legislature permitted consideration to be given in some instances to the particular circumstances surrounding a “distribution” of harmful material suggests that the legislature did not intend to foreclose such an inquiry when called for by the situation. Reading the statute as a whole, it appears that the legislature intended to proscribe the intentional or foreseeable exposure of children to pornographic or other harmful material. Thus, I would conclude that the offense of distributing harmful material to a minor is proven only if the evidence shows that the child was the intended recipient of the harmful material or, under the attendant circumstances, the person’s conduct creates a reasonably foreseeable risk that a child will be exposed to harmful material. To some extent, the majority has, in practice, adopted this approach. In my view, however, when the majority undertakes its analysis, it reaches the wrong conclusions.
As noted earlier, the majority initially finds that “distribution” within the meaning of section 11 — 21 simply requires a transference of possession. 215 Ill. 2d at 326. Under this construction, intent and risk are irrelevant. Later, however, the majority holds that defendant’s claim that she did not expect Jessica to open the envelope “is belied by the record.” 215 Ill. 2d at 331. According to the majority, defendant should have expected that Jessica would have opened the envelope entrusted to her because the envelope was “sealed with a few pieces of tape” and was a “Christmas greeting” with a Christmas stamp on it, delivered around Christmastime. 215 Ill. 2d at 331. The majority also notes that “J. Jurzak” was written in the return-address section of the envelope and that Jessica testified this fact led her to believe that the envelope was from a relative. 215 Ill. 2d at 331.
But, contrary to the majority, the envelope was not a “Christmas greeting.” The envelope did not resemble a Christmas card. It was a plain, business-sized envelope that was clearly addressed to Richard, Jessica’s father. Furthermore, the envelope was not simply secured with “a few pieces of tape.” The record supports defense counsel’s assertion at trial that the envelope was “double-sealed,” i.e., that it was both sealed and the seal was completely taped. In fact, the trial court found that the envelope was securely sealed.
It is also clear from the testimony that Jessica knew defendant. The record shows that Richard had had an affair with defendant for more than a year. Jessica admitted at trial that she had been to defendant’s home on numerous occasions — more than 25 times. Under these circumstances, Jessica’s claim that she opened the envelope because she believed it was from a relative is suspect, at best.
Finally, none of the facts which the majority cites negates defendant’s assertion that she did not intend or expect a child to view the photos inside the envelope. The note to Richard’s wife, Heather, found on the back of one of the photos, was a taunt. Defendant hoped to rekindle the flames of her recently ended romance with Richard and, perhaps, inflame Heather at the same time. But even if that were so, the note does not indicate that defendant intended or expected a child to view the photos and, for this reason, the note does not support the finding that defendant committed the offense of distributing harmful material to a minor.
I, like the majority, find it extremely unfortunate that a 12-year-old child saw the few unsavory photographs at issue here, particularly since the photos included the child’s father. Nevertheless, we should not let that fact distort our legal analysis. What is at issue here is the proper construction of section 11 — 21. Our duty as judges is, as always, to interpret the law and determine what the General Assembly intended when it enacted the law.
The bench and bar needs guidance on the proper construction of section 11 — 21. In the case at bar, the trial court found that the statute was “tricky.” The appellate court never addressed defendant’s claim that she did not have the requisite mental state. Justice Lytton dissented, stating:
“The majority attempts to rationalize Jessica’s ‘control,’ but merely restates the dictionary definition as if it were a recitation of supporting facts. Instead of giving us a factual basis for its legal conclusion, the majority simply cites a legal conclusion, i.e., ‘Jessica exercised control over the envelope and its contents.’ *** The majority gives us nothing but a legal conclusion to affirm this conviction.” 346 Ill. App. 3d at 486 (Lytton, J., dissenting).
Today, the majority provides no greater guidance. Initially, the majority holds, similar to the appellate court, that “distributing” harmful material to a minor within the meaning of the statute requires only a transference of property. 215 Ill. 2d at 326. Under this construction, the offense is proven simply by showing that a container holding harmful material has been given to a child. Subsequently, the majority affirms defendant’s conviction for distributing harmful material to a child based on its finding that, under the circumstances of this case, defendant “ran the risk” that Jessica would open the envelope given to her and, in that way, a child was exposed to harmful material. 215 Ill. 2d at 331-32. In my view, these two holdings are irreconcilable and both analyses are incorrect.
For all of the reasons stated, I dissent.
JUSTICE FREEMAN joins in this dissent.