concurring:
I agree with the majority that defendant has standing to challenge the constitutionality of the legislative scheme and that the scheme is also constitutionally sound. I take issue, however, with the majority’s construction of the scheme’s individual provisions and the interplay between these two. I construe the provisions differently in keeping with rules of statutory construction and the obvious underlying legislative intent.
The trial court found disturbing the absence of a culpable mental state requirement in the aggravated criminal sexual assault statute, section 12 — 13(a)(2), and its medical examination exemption, section 12 — 18(b), as applied to gynecologists. This was because gynecologists commit acts of sexual penetration during routine vaginal examinations, thereby satisfying most of the statute’s elements, including that of the mental state of nonspecific intent. (See People v. Terrell (1989), 132 Ill. 2d 178 (a mental state of either intent or knowledge implicitly is required for sexual penetration to occur).) According to the trial court and defendant, criminally charged gynecologists then impermissibly bear the burden of proving their innocence in that their conduct was within the medical examination exemption, i.e., that the examination was for "purposes and in a manner consistent with reasonable medical standards.”
According to the trial court and defendant, the exemption, in operation with the sexual assault statute, as applied to persons performing gynecologic exams, is unconstitutionally vague. The scheme is allegedly unconstitutionally vague because it fails to clearly define the boundaries of criminal conduct for gynecologists performing vaginal examinations. According to defendant, the exemption’s phrase "consistent with reasonable medical standards” is not a sufficient standard in the absence of any requirement of an unlawful purpose.
Responding to defendant’s suggestion that a physician’s act in performing a vaginal examination constitutes the conduct of a criminal sexual assault under the statute, the majority unnecessarily and unwarrantedly forges an additional and unclear mental state element into the criminal sexual assault statute. "When the defendant gynecologist intentionally exceeds the scope of reasonable medical standards, the patient’s consent is vitiated, and the physician may be prosecuted under the sexual assault statute.” (Emphasis added.) (164 Ill. 2d at 264-65.) Thus, according to the majority’s reasoning, a negligent examination could not subject a physician to prosecution for criminal sexual assault, because "Consistent with the holding in Terrell, we find that *** the State must prove that the gynecologist possessed a mental state of intent, knowledge, or recklessness.” (Emphasis added.) 164 Ill. 2d at 265.
Thus, by this construction, the aggravated criminal sexual assault statute, as applied to physicians conducting vaginal examinations, now appears to possess both the general intent requirement (see Terrell, 132 Ill. 2d at 209 (proof of an intentional or knowing act by the accused)) and this particular specific intent requirement (proof of the accused’s intent to exceed the scope of reasonable medical standards). (Cf. People v. Williams (1989), 191 Ill. App. 3d 269, 275 (criminal sexual assault is a general intent offense).) I believe that inclusion within the statute of this particular specific intent element, applicable to this class of accuseds, offers no assistance to the clarity of the statutory scheme, nor is it warranted.
The majority is correct to point out that the defendant’s interpretation of the statute is "flawed,” as it fails to consider all of the statute’s elements, especially that directed to the victim’s consent. (164 Ill. 2d at 264 ("[ujnder the statute, the prosecution must prove not only the act of sexual penetration but also that the defendant knew that the patient did not consent”).) A prosecution of an accused under section 12 — 13(a)(2) must prove both the accused’s intentional act of penetration and knowledge of the victim’s inability to give knowing consent. The fact that the prosecution must also prove that the accused knew the victim could not consent refutes defendant’s argument that a physician’s performance of merely innocent or negligent acts will subject him to prosecution. Intentional conduct alone is not sufficient; an element speaking to unlawful purpose is required under the statute.
But in prosecuting a physician who performs vaginal examinations, this court need not override or ignore these express statutory elements. If a female patient is undergoing a vaginal examination to which she has consented, and the examining physician performs it in a manner which suggests that it is not a legitimate medical examination, she is unable, at that point in time and space, to give any knowing consent. And the examining physician knows she was unable to do so because he did not give her advance warning, or an opportunity to consent, and the deed was swiftly done. Thus, under the express terms of the statute, to prosecute a physician who performed a vaginal examination, an intentional act of sexual penetration is required, as well as indication that the physician knew of the victim’s inability to consent. (See People v. Quinlan (1992), 231 Ill. App. 3d 21, 25 (evidence that victim not equipped to know defendant’s acts were not medical procedure, that acts were not medical procedure proved victim unable to understand nature of the acts, and other evidence proved defendant knew).) There is no need to deviate from these expressly stated statutory elements by judicially crafting an additional statutory element.
Furthermore, the particular specific intent element advanced by the majority ultimately turns on a medical reasonableness standard (intent to exceed reasonable medical standards) and lends no additional clarity to the parameters of criminal conduct under the scheme than that already provided by the exemption. In short, it is no more clear than the exemption itself.
More importantly, the introduction of this element within the statute itself also unnecessarily increases the State’s burden of proof. The majority’s construction essentially inverts the language of the medical examination exemption by changing what was described there as an examination conducted "consistent” with reasonable medical standards to the intentional "exceed[ing]” of reasonable medical standards. Thus a factor the legislature clearly intended as comprising the exemption to the statute becomes, under the majority’s construction, also an element of the crime, itself. "Therefore, the burden is on the State to establish beyond a reasonable doubt what the reasonable medical standards were, that the physician intentionally transgressed those standards, and that the patient did not consent to the transgressions.” (164 Ill. 2d at 265. Cf. People v. Ikpoh (1993), 242 Ill. App. 3d 365, 383-84 (holding defendant bears burden of proof on issue of whether procedure was medical procedure and entitled to medical examination exemption from sexual abuse prosecution); People v. Foster (1990), 195 Ill. App. 3d 926, 952 (holding that proof that defendant’s acts were not reasonable medical examination is not an element of criminal sexual assault).) Thus, the majority’s construction unnecessarily increases the burden of proof on the State since it is the State’s burden to prove the elements of the crime beyond a reasonable doubt, and it is the defendant’s burden to prove his entitlement to a statutory exemption by a preponderance of the evidence. The State is simply not required to negate an exemption. See People v. Smith (1978), 71 Ill. 2d 95, 105-09.
I agree with the majority and the State that there is substantial interplay between the statute and the exemption. Either party may raise the exemption and present evidence showing whether the acts were done in a manner consistent with reasonable medical standards (see People v. Delk (1981), 96 Ill. App. 3d 891, 902) and some of this evidence may also go to whether the physician knew of the victim’s inabilities to understand or give consent. However, I do not believe that it is helpful to blur the distinctions between the two provisions or their accepted operations for the sake of upholding the scheme. The scheme is constitutionally sound without such construction.
As mentioned previously, to prosecute a physician under the statute there must be more than a mere intentional vaginal examination. Under the statute, every gynecologist conducting vaginal examinations does not fall within the purview of the sexual assault statute. The physician must evidence an awareness that the victim was unable to understand or give consent. If charges are brought, the physician or the State may raise the medical examination exemption and present evidence that the examination was or was not conducted for "purposes” consistent with reasonable medical standards and accomplished in a like manner. (See Terrell, 132 Ill. 2d at 211 ("the legislature *** eliminate[d] acts of 'sexual penetration’ with innocent intentions from the purview of the aggravated criminal sexual assault statute when it enacted [the exemption]”).) Under these circumstances, a reasonableness standard, which suffices to define behavior in other areas of law, is not so amorphous as to render the scheme unconstitutionally vague.