dissenting:
Section 12 — 13(a)(2) of the Criminal Code of 1961 provides that an accused commits criminal sexual assault if he or she "commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent.” (Ill. Rev. Stat. 1991, ch. 38, par. 12— 13(a)(2).) This provision is qualified by section 12 — 18(b) of the Code, which states that "[a]ny medical examination or procedure which is conducted by a physician, nurse, medical or hospital personnel, parent, or caretaker for purposes and in a manner consistent with reasonable medical standards is not an offense” within the meaning of section 12 — 13 or related provisions. Ill. Rev. Stat. 1991, ch. 38, par. 12 — 18(b).
There is no dispute that Dr. Burpo committed acts of "sexual penetration” within the meaning of section 12 — 13(a)(2) when he examined the eight complaining witnesses involved here. He had to in order to do his job as a gynecologist. According to expert testimony presented at the hearing on the motion to dismiss, penetration is unavoidable during the course of a proper vaginal examination. To perform the exam, a doctor must insert his fingers, and sometimes an instrument known as a speculum, into the vagina.
Just as there is no dispute about the fact of sexual penetration, there is no dispute that all eight of the complaining witnesses consented to the examinations. One of the women received her exam on a follow-up visit after an abortion. A second was required by her insurance company to obtain a second opinion before she could have a hysterectomy, while a third was examined in order to get a prescription for birth control pills. How the other five came to see Dr. Burpo is not disclosed in the record, but the State does not contend that the circumstances surrounding their exams were anything but routine and proper.
In pursuing criminal sexual assault charges against Dr. Burpo, the State bases its case on the proposition that certain acts allegedly performed by Dr. Burpo in the course of his examinations had no "legitimate” medical purpose. The State’s theory appears to be that the lack of medical "legitimacy” in Burpo’s conduct is relevant to show that the consent initially given to the examinations was defeated. The State seems to assert that when the complaining witnesses consented to the exams, they expected that only "legitimate” procedures would be performed on them. To the extent that aspects of Dr. Burpo’s examination were not "legitimate,” they were unexpected, and the complaining witnesses were therefore "unable to give knowing consent” within the meaning of section 12 — 13(a)(2).
The State’s approach has origins in precedent decided under the old rape laws, where force was implied "when the rape or deviate sexual acts proscribed by statute [were] accomplished under the pretext of medical treatment when the victim [was] surprised, and unaware of the intention involved.” (People v. Borak (1973), 13 Ill. App. 3d 815, 820-21.) The idea was that if the complaining witness was surprised by the act and unaware of the assailant’s intentions, she could not have given consent, and the act was therefore deemed to have been made with force. See Borak, 13 Ill. App. 3d at 821.
Force is clearly not an element of the offense under section 12 — 13(a)(2). Nevertheless, similar reasoning has been followed in applying that statute where, as here, the State charges that the complaining witness was "unable to give knowing consent.” Although the statutory requirement that a victim be "unable to give knowing consent” would appear to be aimed at situations where the victim was asleep, unconscious, or suffering from some substantial mental impairment, the appellate court has extended it to also embrace situations where a medical professional tricked the complaining witness into, submitting to sexual penetration on the ruse that it was part of a "legitimate” medical test when it was not. (See People v. Quinlan (1992), 231 Ill. App. 3d 21.) This is the standard the State would have us follow here.
Once medical "legitimacy” becomes the touchstone of a doctor’s criminal liability, as the State argues it should be, the question of whether a doctor’s conduct comports with "reasonable medical standards” within the meaning of section 12 — 18(b) becomes dispositive. In the State’s own words,
"Evidence of the physician’s compliance or noncompliance with reasonable medical standards is the only way in which a fact finder can determine whether the physician’s conduct was good faith medical treatment or aggravated criminal sexual assault.”
Sections 12 — 13(a)(2) and 12 — 18(b) are thus inextricable under the State’s theory. If, under the evidence, an examination or procedure involving sexual penetration is not "consistent with reasonable medical standards” within the meaning of section 12 — 18(b), it cannot be regarded as "legitimate” and will therefore subject the defendant to conviction for violation of section 12— 13(a)(2).
In the proceedings before the circuit court, Dr. Burpo argued and the court found that the legislative scheme created by the interplay of sections 12 — 13(a)(2) and 12— 18(b) is void and unenforceable "as to the class of persons performing gynecologic exams including this Defendant” because the phrase "consistent with reasonable medical standards” is unconstitutionally vague. I agree.
The void-for-vagueness doctrine requires that a penal statute define the criminal offense (1) with sufficient definiteness that ordinary people can understand what conduct is prohibited and (2) in a manner that does not encourage arbitrary and discriminatory enforcement. (Kolender v. Lawson (1983), 461 U.S. 352, 357, 75 L. Ed. 2d 903, 909, 103 S. Ct. 1855, 1858.) Although the doctrine focuses on both actual notice to citizens and arbitrary enforcement, the United States Supreme Court has recognized that the more important aspect of the vagueness doctrine
" ’is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.’ [Citation.] Where the legislature fails to provide such minimal guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’ ” Kolender, 461 U.S. at 359, 75 L. Ed. 2d at 909, 103 S. Ct. at 1858, quoting Smith v. Goguen (1974), 415 U.S. 566, 574-75, 39 L. Ed. 2d 605, 613, 94 S. Ct. 1242, 1248.
Vagueness challenges to statutes that do not involve first amendment freedoms must be examined in light of the facts of the case at hand. Normally, a facial vagueness challenge will be upheld only if the statute is impermissibly vague in all of its applications. (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 495, 71 L. Ed. 2d 362, 369, 102 S. Ct. 1186, 1191.) The United States Supreme Court has also recognized, however, that the standard of precision required of a statute is higher where, as here, the statute imposes criminal penalties. That consideration has, at times, led the court "to invalidate a criminal statute on its face even when it could conceivably have had some valid application.” Kolender, 461 U.S. at 359 n.8, 75 L. Ed. 2d at 910 n.8, 103 S. Ct. at 1859 n.8.
A criminal statute is facially invalid where it vests in the police virtually complete discretion to determine whether the terms of the statute have been satisfied. (See Kolander, 461 U.S. 352, 75 L. Ed. 2d 903, 103 S. Ct. 1855.) In addition, this court has declared that a legislative enactment is void where its language appears on its face to have meaning, but where that language cannot possibly be given any precise meaning or intelligent application in the circumstances under which it is intended to operate. Granite City Division of National Steel Co. v. Illinois Pollution Control Board (1993), 155 Ill. 2d 149, 163-64; Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 402.
Here, the statutory language "consistent with reasonable medical standards” is one of those phrases that appears to have a clearly ascertainable meaning, but, in this context, does not. This is not a situation where a doctor took advantage of the circumstances to have intercourse with his patients. All eight of the criminal sexual assault charges against Dr. Burpo arose from complaints regarding the manner in which he performed what were otherwise entirely routine internal exams.
Performing internal medical exams on female patients is a procedure subject to many variables. Techniques differ from doctor to doctor and from place to place. Expert testimony adduced in the trial court indicated that there is considerable variation in standards from one community to the next. Depending on the specific problems involved, a gynecologist in Chicago could be judged differently, in terms of "reasonable medical standards,” from a gynecologist in Hillsboro. In addition, there can be disagreement on whether a gynecologist acted properly even among experts applying the same standards. For example, one of the instances of alleged misconduct by Burpo involved the length of time a vaginal examination took. A doctor called by the State during the grand jury proceedings opined that an internal exam would take about three minutes. The defense expert, however, stated that there was no average time for such an exam. In his words,
"it would be a terrible mistake to say it should be performed in three minutes or five minutes or seven minutes or nine minutes because it eliminates all of the variables that go into the exam.”
In light of such profound disagreements, it is difficult to see how the statutory scheme before us could be construed as providing the clearly ascertainable standard of guilt that due process requires. The vagueness of the statutory standard is further compounded by the fact that the legislation subjects gynecologists to potential liability without regard to fault. (See Colautti v. Franklin (1979), 439 U.S. 379, 394, 58 L. Ed. 2d 596, 608, 99 S. Ct. 675, 685.) In a different context, this court has held that the statute does not punish "innocent” conduct in the sense that it requires an intentional or knowing act by the accused. (People v. Terrell (1989), 132 Ill. 2d 178, 209.) The problem in the case of gynecologists is that the "sexual penetration” that occurs in the course of a proper vaginal examination will always be knowing and intentional. When a doctor puts his fingers into the patient’s vagina, he most certainly means to do it. As previously discussed, it is an inherent and unavoidable part of the procedure.
Because the statute requires only intent or knowledge, and not any purpose of sexual gratification or arousal (Terrell, 132 Ill. 2d at 210-11), any deviation from "reasonable medical standards” in the course of an internal exam could subject a gynecologist to prosecution, even if the deviation was the result of negligence. With respect to this aspect of the practice of gynecology, medical malpractice would be criminalized. Whether the conduct was motivated by a criminal purpose or not, punishment could result.
The abuses that might follow at the hands of an over-zealous prosecutor are manifest. The situation is especially troubling when viewed in the context of the ongoing controversy over contraception and abortion rights. For a politically sensitive State’s Attorney in a "pro-life” community, the threat of prosecution under sections 12 — 13(a)(2) and 12 — 18(b) could be a potent weapon in inhibiting the delivery of gynecological services to women who wish to exercise their constitutional right to reproductive freedom. While Dr. Burpo has refrained from charging the State’s Attorney with such an improper purpose here, I cannot help but observe that at least some of the charges in this case arose from Dr. Burpo’s work at a Planned Parenthood clinic.
The State is confident that common sense and fair play will prevail, but the validity of a law cannot be allowed to turn on the hope that prosecutors will have the wisdom and restraint to enforce it judiciously. As Justice Douglas reminded us more than 40 years ago, "It is not enough to know that the men applying the standard are honorable and devoted men. This is a government of laws, not of men. ” (Emphasis in original.) Joint Anti-Fascist Refugee Committee v. McGrath (1951), 341 U.S. 123, 177, 95 L. Ed. 817, 857, 71 S. Ct. 624, 651 (Douglas, J., concurring).
For the foregoing reasons, I would hold that the phrase "consistent with reasonable medical standards” renders the statutory scheme created by sections 12— 13(a)(2) and 12 — 18(b) unconstitutionally vague and unenforceable in the context of internal exams performed by physicians on their female patients. The judgment of the circuit court of St. Clair County dismissing the criminal sexual assault counts against Dr. Burpo should therefore be affirmed.