concurring in part and dissenting in part:
I concur in that portion of the majority opinion which holds that defendant was not denied due process of law because the State could not be more specific in its response to defendant’s request for a bill of particulars than to provide a range of 33 months in which the offense of aggravated criminal sexual abuse occurred.
I respectfully dissent from that portion of the majority opinion which holds that the jury did not need to be instructed that the State must prove defendant had the mental state of intent, knowledge, or recklessness in order to convict him of aggravated criminal sexual assault.
Even though the information charging defendant with aggravated criminal sexual assault alleged he committed that offense by “knowingly” committing an act of sexual penetration upon the victims, the following instructions relating to that charge were given to the jury over defendant’s objection:
“A person commits the offense of aggravated criminal sexual assault when he:
commits an act of sexual penetration with a victim; and
was 17 years of age or older and the victim was under 13 years of age when the act was committed.”
See IPI Criminal 2d No. 11.33, at 171-72 (Supp. 1989).
“To sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions:
First: That the defendant committed an act of sexual penetration upon [L.A.H.]; and
Second: That the defendant was 17 years of age or older and that [L.A.H.] was under 13 years of age when the act was committed.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”
See IPI Criminal 2d No. 11.35, at 176-77 (Supp. 1989).
“To sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions:
First: That the defendant committed an act of sexual penetration upon [A.M.]; and
Second: That the defendant was 17 years of age or older and that [A.M.] was under 13 years of age when the act was committed.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”
See IPI Criminal 2d No. 11.35, at 176-77 (Supp 1989).
“The term ‘sexual penetration’ means any contact, however slight, between the sex organ of one person and the mouth of another person, any intrusion, however slight, of any part of the body of one person into the sex organ of another person, including but not limited to cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.”
See IPI Criminal 2d No. 11.65, at 192 (Supp. 1989).
“A person commits the offense of aggravated criminal sexual abuse when he is 17 years of age or older and commits an act of sexual conduct with a victim who was under 13 years of age when the act was committed.”
See IPI Criminal 2d No. 11.38, at 181-83 (Supp. 1989).
“To sustain the charge of aggravated criminal sexual abuse, the State must prove the following propositions:
First: That the defendant committed an act of sexual conduct with [L.A.H.]; and
Second: That the defendant was 17 years of age or older; and
Third: That [L.A.H.] was under 13 years of age when the act was committed.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”
See IPI Criminal 2d No. 11.40, at 186-87 (Supp. 1989).
“The term ‘sexual conduct’ means any intentional or knowing touching or fondling by the accused, either directly or through the clothing, of any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.”
See IPI Criminal 2d No. 11.64, at 192 (Supp. 1989).
Defense counsel objected to all of the aggravated criminal sexual assault instructions (IPI Criminal 2d No. 11.35, at 176-77 (Supp. 1989)) on the ground that they failed to include an element of the offense, namely, that the defendant had acted “knowingly.” The court overruled the objection. Defendant preserved the issue by including it in his motion for a new trial, which the trial court denied.
On appeal, defendant concedes that the definition of aggravated criminal sexual assault, as set forth in section 12 — 14 of the Code, contains no specific mental state (Ill. Rev. Stat. 1987, ch. 38, par. 12— 14). He argues, however, that sections 4 — 3 and 4 — 9 of the Code (Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 3, 4 — 9), when read in conjunction, require that a mental state of acting intentionally, knowingly, or recklessly must be alleged and proved when aggravated criminal sexual assault is charged.
Section 4 — 3 of the Code, inter alia, states the following:
“(a) A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Sections 4 — 4 through 4 — 7.
(b) *** If the statute does not prescribe a particular mental state applicable to an element of an offense (other than an offense which involves absolute liability), any mental state defined in Sections 4 — 4, 4 — 5 or 4 — 6 is applicable.” (Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 3(a), (b).)
Sections 4 — 4 through 4 — 7 of the Code contain provisions pertaining to intent (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4), knowledge (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5), recklessness (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6), and negligence (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 7).
Section 4 — 9 of the Code reads as follows:
“A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4 — 4 through 4 — 7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” Ill. Rev. Stat. 1987, ch. 38, par. 4 — 9.
The majority opinion specifically acknowledges that aggravated criminal sexual assault is not a misdemeanor (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(c)), and that the statute defining that offense does not “clearly [indicate] a legislative purpose to impose absolute liability for the conduct described.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 9.) Given these facts and the recent supreme court decision in Terrell, I believe that defendant’s argument is correct.
In Terrell, the supreme court construed the foregoing sections of the Code in the context of an aggravated criminal sexual assault case and stated the following:
“The defendant argues that the aggravated criminal sexual assault statute *** does not require an unlawful purpose on the part of the person who commits an act of sexual penetration and, therefore, punishes innocent as well as culpable conduct. The defendant maintains that it is unreasonable and arbitrary for the legislature to punish offenses based upon an act of sexual penetration, which requires no mental state, more severely than offenses based upon an act of sexual conduct, which requires a mental state. The defendant contends that the aggravated criminal sexual assault statute therefore violates due process.
The State argues that the defendant has waived this issue by failing earlier to challenge the constitutional validity of section 12 — 14. The defendant responds that the issue is reviewable under the plain error rule. Because we find no merit in the defendant’s contentions, we need not consider whether the defendant is barred from raising them in this appeal.
In People v. Burmeister (1986), 147 Ill. App. 3d 218[, 497 N.E.2d 1212], the court considered and convincingly rejected a similar challenge to the constitutionality of the aggravated criminal sexual assault statute. Although the definition of ‘sexual penetration,’ unlike the definition of ‘sexual conduct,’ does not expressly require a mental state, the legislature clearly did not intend the aggravated criminal sexual assault statute to define a strict liability or public welfare offense. (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 9.) Accordingly, a mental state of either intent or knowledge implicitly is required for sexual penetration to occur. (Ill. Rev. Stat. 1985, ch. 38, pars. 4 — 3, 4 — 4, 4— 5, 4 — 6, 4 — 9.) So construed, the aggravated criminal sexual assault statute does not punish innocent conduct or set up an unconstitutional anomaly between the greater offense of aggravated criminal sexual assault and the lesser offense of aggravated criminal sexual abuse. (People v. Burmeister (1986), 147 Ill. App. 3d 218, 224[, 497 N.E.2d 1212].) Rather, both aggravated criminal sexual assault and the lesser offense of aggravated criminal sexual abuse require an intentional or knowing act by the accused." (Emphasis added.) Terrell, 132 Ill. 2d at 208-09, 547 N.E.2d at 158.
The majority opinion recognizes that in the above language, the supreme court is “pointing out that section 4 — 3(a) of the Code made intent, or knowledge, the mental state for aggravated criminal sexual assault.” (201 Ill. App. 3d at 119.) The majority opinion nevertheless rejects defendant’s argument by drawing a distinction between (1) those offenses which have their “mental states set forth in very specific language” in the statutes defining them, and (2) those offenses for which mental states are implied by section 4 — 3 of the Code. (201 Ill. App. 3d at 121.) I do not agree that this distinction is valid under Illinois law.
The inquiry before this court is the following: What answer does the supreme court’s authoritative construction of the aggravated criminal sexual assault statute as containing a mental state require on the questions of (1) does the State need to charge that mental state, and (2) does the court need to instruct on that mental state? I believe that the answer required by Terrell to both of these questions is clearly yes.
My analysis may be summed up as follows: When the supreme court has authoritatively construed a statute as containing one of the mental states of intent, knowledge, or recklessness, then that mental state is present in the statute in question to the same extent as if the legislature had originally written in the words “intentionally,” “knowingly,” or “recklessly.”
Certainly no citation of authority is needed for the proposition that mental states, as set forth in statutory definitions provided by the legislature, must be included in instructions given to the jury. Any court would think it most odd if some burglary case went to trial and, over the objection of the defendant, the court struck the word “knowingly” from the instructions describing how the defendant entered the building in question. (IPI Criminal 2d No. 14.06, at 312 (2d ed. 1981).) This court would have no difficulty reversing that conviction and telling the trial judge to include the mental state in the instruction.
My point is that there is absolutely no difference between statute A, which contains a mental state written into it by the legislature, and statute B, which contains three alternative mental states under section 4 — 9 of the Code, as “written” into it by an authoritative construction of the supreme court. I do not understand how Illinois law permits a principled distinction between these hypothetical statutes to be drawn.
I also do not agree with the majority opinion’s efforts to resurrect the notions of “general intent” and “specific intent.” As Professor Wayne LaFave has observed in his treatise on criminal law, “greater clarity could be accomplished by abandoning the ‘specific intent’— ‘general intent’ terminology, and this has been done in the Model Penal Code.” (W. LaFave & A. Scott, Substantive Criminal Law §3.5(e), at 316 (1986).) The drafters of the Model Penal Code abandoned this terminology because “the concept of ‘general intent’ *** has been such an abiding source of confusion and ambiguity in the penal law.” Model Penal Code §2.02, Comment, at 231 n.3 (1985).
In a recent article, Professor Timothy O’Neill points out that in an effort to rid Illinois of the confusing distinction between “general intent” and “specific intent,” the Illinois legislature followed the suggestions of the Model Penal Code when the Criminal Code of 1961 was enacted. (O’Neill, Illinois’ Latest Version of the Defense of Voluntary Intoxication: Is It Wise? Is It Constitutional? 39 De Paul L. Rev. 15, 24-25 (1989) (hereinafter O’Neill).) Yet, regrettably the distinction lives on because of the courts’ reluctance to give it up. O’Neill, 39 DePaul L. Rev. at 26-29.
In my judgment, the distinction between “general intent” and “specific intent” is to the substantive criminal law what res gestae is to the law of evidence: both archaic relics, purporting to convey meaning, but in fact conveying none. Calling the term “res gestae" nonsense, Professor Michael H. Graham writes that, “Nothing short of complete abandonment of res gestae as an explanation of admissibility permits rational analysis of exceptions [to] the hearsay rule ***.” ^ Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.2, at 549 (4th ed. 1984).) I suggest that nothing short of complete abandonment of the “general intent” — “specific intent” distinction permits rational analysis of the law regarding the mental states applicable to various offenses.
I further disagree with the majority opinion that the decisions of the supreme court in People v. White (1977), 67 Ill. 2d 107, 365 N.E.2d 337, and People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244, add anything to the analysis of the issue before us. Those cases both dealt with the charge of armed robbery under section 18 — 2 of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2), a charge that has as an element thereof the use of force or the threat to imminently use force. (Ill. Rev. Stat. 1977, ch. 38, pars. 18 — 1(a), 18 — 2(a).) I believe that the presence of this element involving force is a sufficient basis to distinguish those cases from the present one.
I do not believe Terrell can be distinguished from the present case on the ground that the supreme court in Terrell was not addressing any issue regarding jury instructions. Of course the supreme court did not address that issue; no such issue was raised for it to address. Here, the issue was appropriately raised and preserved at the trial level.
Because, in my judgment, the. supreme court’s decision in Terrell compels the reversal in the present case, we need not and cannot concern ourselves with the effects of that reversal upon other cases either yet to be tried or pending appeal.