specially concurring:
I concur in the result of the court’s order but write separately to make the following observations.
The trial judge erred in ruling that circumstantial evidence could not establish the mens rea element for aggravated criminal sexual abuse but could establish the mens rea element for sexual exploitation of a child. The elements are the same despite their location in different offenses. In cases like In re E.R.E., 245 Ill. App. 3d 669 (1993), and In re A.J.H., 210 Ill. App. 3d 65 (1991), the primary concern is that children may have noncriminal reasons (e.g., adolescent curiosity) for engaging in conduct involving sex organs. That concern exists regardless of whether the conduct involves touching (sexual abuse) or exposure (sexual exploitation). Thus, the judge’s distinction was unfounded.
Although the State cannot appeal the judge’s order directing a verdict on count I (188 Ill. 2d R. 604(a)(1)), the order may very well have been erroneous. The respondent in E.R.E. was 11 to 12 years old, and the respondent in A.J.H. was 13 years old. Sexual conduct by such minors is more apt to be innocent than similar conduct by older minors like Donald R. (16 years old). Regarding pursuit of sexual gratification or arousal, the difference between ages 11 to 13 and age 16 is considerable. Admittedly the courts in E.R.E. and A.J.H. simply mentioned children in general; however, those cases must be interpreted according to their facts. The policy behind the rule against circumstantial evidence applies differently to respondents of different ages and maturity levels. These facts illustrate the need for a case-by-case approach instead of an inflexible rule that supposedly applies the day before a minor reaches majority but not the day afterward.
Finally, regardless of the directed verdict on count I, the State’s evidence was sufficient to sustain Donald R.’s conviction for sexual exploitation of a child (count II). In addition to the mere fact that Donald R. exposed his penis to the victim, the State presented evidence that he proceeded to grab the victim’s hand and place it on his penis. The State also presented evidence that he threatened the victim to prevent disclosure of the act. The trier of fact could have reasonably inferred from this evidence that Donald R. acted for the purpose of sexual gratification or arousal rather than something more benign like adolescent curiosity.