dissenting:
I respectfully dissent. The evidence in this case supports that the respondent, while he was 12 years of age, committed an act of sexual conduct with the victim, while she was 8 years of age. See 720 ILCS 5/12 — 16(c) (2)(i) (West 2002). Sexual conduct is defined as any intentional or knowing touching or fondling by the victim or the accused, of the sex organs, anus, or breasts of the victim or the accused, for the purpose of sexual gratification or arousal of the victim or the accused. 720 ILCS 5/12 — 12(e) (West 2002). Contrary to what the majority has concluded, the respondent here clearly touched the victim’s vagina for the purpose of sexual gratification.
Several key facts, which the majority has either glossed over or omitted, are pertinent to the resolution of this case. The victim testified that she, the respondent, and some other children were in the respondent’s bedroom playing a game called “survival.” The respondent set the rules for the game. He instructed the other children to leave the room for five minutes. He then closed his bedroom door and locked himself and the victim inside. He told the victim that instead of playing the game, they would give massages. The respondent instructed the victim to pull her pants and underwear down a little. When the victim did so, the respondent slid his hand under the victim’s pants and underwear and placed his hand on the victim’s vagina. The victim stated to the respondent that it tickled and the respondent told her to cover her mouth. The respondent then gave the victim a “tongue massage” and a “belly massage.” When the other children tried to get back into the room, the respondent told them it was not time yet. Before letting the other children back inside the room, the respondent instructed the victim to keep the incident a secret. On a later date, the respondent attempted another act of a sexual nature with the victim. He asked the victim to “suck his pee-pee.” However, the victim told the respondent no.
The victim’s mother, Christine, testified that the victim had told her what the respondent had done. The victim told Christine that while she was in the respondent’s bedroom playing a game of “survival,” the respondent had massaged and licked her vagina. The victim also told Christine that similar incidents had occurred on other occasions. One of these occasions occurred on the respondent’s driveway.
Dr. Kraus testified that he examined the respondent. The respondent was a healthy A/B student. He was musically inclined and had no history of behavioral problems. On standardized testing, the respondent scored in the 90th percentile and above. However, Dr. Kraus believed that the respondent was socially immature for his age. Dr. Kraus explained that the respondent attended a summer camp the past summer. The respondent enjoyed the camp for the most part but at times felt uncomfortable. Other children at camp sometimes talked about having sexual encounters. The other children at camp ridiculed the respondent about his lack of knowledge of and experience with sex. The respondent met a girl at summer camp, whom he kissed and petted. The respondent told Dr. Kraus that he felt awkward with the girl. The respondent admitted to Dr. Kraus that he had committed several acts of touching and fondling with the victim and the victim’s sister. When Dr. Kraus asked the respondent why he had done what he had done, the respondent stated that he “was seeing what it felt like.”
After hearing the above evidence, the trial court determined that the respondent had performed the alleged acts with the intent of sexual gratification. The trial court placed great emphasis on the fact that the respondent’s acts were multiple. The trial court also placed great weight on the respondent’s experience at summer camp. Specifically, the trial court found:
“[S]o I have a 12-year-old who’s been exposed to sexual behavior, petting, kissing, who later in the year meets up with some neighbor kids and decides to play this game, and you know, clearly, maybe it could be argued once that this was innocent, that things started to happen that weren’t intended; but when the game’s played again so that the other minor children are directed out of the room, so that [the respondent] can engage in this type of physical conduct, it corroborates that what he did was for sexual gratification.
I have the numerous types of contact. It was multiple in nature. Clearly, he knew what he was doing was wrong. It’s not, as Dr. Kraus, indicated, he’s a socially deficient 12-year-old, playing doctor with a 7-year-old. It’s past that; that coupled with his statement, T wanted to see what it felt like.’
But based on all of that, I feel there is evidence — it’s circumstantial, but clearly this was more than just an investigation of another person’s body to check out the female anatomy, and unfortunately that’s my ruling today.”
The mens rea or intent element of a crime can rarely be proved by direct evidence. People v. Sanchez, 292 Ill. App. 3d 763, 771 (1997). Rather, the mens rea element is generally inferred from circumstantial evidence. People v. Holt, 271 Ill. App. 3d 1016, 1025 (1995); People v. Price, 225 Ill. App. 3d 1032, 1035 (1992). In particular, the mens rea element of criminal sexual abuse, a defendant’s purpose of sexual gratification, can be inferred from circumstantial evidence. People v. C.H., 237 Ill. App. 3d 462, 472 (1992). Whether a defendant acted with the requisite state of mind is a question for the trier of fact to determine. People v. Wehrwein, 209 Ill. App. 3d 71, 81 (1990). An appellate court shall not substitute its judgment for the judgment of the trier of fact, unless that judgment was inherently implausible or unreasonable. Price, 225 Ill. App. 3d at 1035.
The trial court’s judgment in this case was not implausible or unreasonable. The respondent admitted that he performed the alleged acts. This fact alone creates an inference that the respondent performed the acts with the purpose of sexual gratification. Contact between a defendant’s finger and a victim’s vagina is touching of a sexual nature. Generally, such contact sufficiently implies that a defendant was motivated by sexual gratification. People v. Kolton, 347 Ill. App. 3d 142, 148 (2004). However, in addition to this inference, several more pieces of evidence point to the respondent being motivated by sexual gratification.
One, the respondent explained to Dr. Kraus that he performed the alleged acts because he was curious about sex and wanted to see what contact of a sexual nature felt like. The respondent’s curiosity was not as innocent as the majority portrays. The respondent had experienced some sexual contact at summer camp. One could certainly infer, as did the trial court, that the respondent had enjoyed the sexual contact he experienced at summer camp and wanted to experience it again.
Additionally, the respondent knew that what he was doing was wrong. The respondent locked the door. He told the victim to cover her mouth while he was touching her. Afterwards, he instructed the victim not to tell anyone what had happened. Moreover, after his first encounter with the victim, the respondent attempted another act of sexual conduct.
Finally, the fact that the respondent’s conduct here was intentional and not accidental is very important. The Illinois Supreme Court explained in People v. Terrell, 132 Ill. 2d 178, 210 (1998), the rationale behind the element of intent of sexual arousal or gratification. Specifically, the Terrell court explained that the element of intent of sexual arousal or gratification was inherent in the definition of sexual penetration. Terrell, 132 Ill. 2d at 210. The Terrell court further explained that the legislature required the element of intent of sexual arousal or gratification in the offense of criminal sexual abuse in order to exclude touching of an accidental or unintentional nature. Terrell, 132 Ill. 2d at 210. As is clear, the record is replete with evidence from which a reasonable trier of fact could infer the requisite intent of the charged offense.
In ruling otherwise, the majority relies on two cases, In re E.R.E., 245 Ill. App. 3d 669 (1993), and In re A.J.H., 210 Ill. App. 3d 65 (1991), that are readily distinguishable from the present case. In both E.R.E. and A.J.H., the respondents were 12 and 13, approximately the same age as the respondent here. E.R.E., 245 Ill. App. 3d at 670; A.J.H., 210 Ill. App. 3d at 66. However, besides that one fact, the present case is very different from E.R.E. and A.J.H. First, in E.R.E. and A.J.H., the State failed to introduce any evidence as to the mindset or motivation of the respondents. See generally E.R.E., 245 Ill. App. 3d 669; A.J.H., 210 Ill. App. 3d 65. However in this case, as noted above, there were several key facts introduced that indicated that the respondent performed his acts with the intent of sexual gratification, most notably the respondent’s admission that he wanted to see how the acts felt. Also, in both E.R.E. and A.J.H., the respondents denied performing the alleged acts. E.R.E., 245 Ill. App. 3d 669; A.J.H., 210 Ill. App. 3d 65. However, the respondent here admitted what he had done. By ignoring these differences, the majority seemingly creates a bright-line rule that minors cannot form the requisite intent to commit criminal sexual abuse.
Such a bright-line rule would be preposterous. In In re Donald R., 343 Ill. App. 3d 237 (2003), the Appellate Court, Third District, recognized this and departed from E.R.E. and A.J.H. The court upheld the respondent’s adjudication for sexual exploitation of a child, reasoning that it was not implausible for the trier of fact to infer from the circumstances that a 16-year-old boy exposed his penis to a 6-year-old girl for the purpose of sexual gratification. Donald, 343 Ill. App. 3d at 244. Justice Holdridge, in his special concurrence, warned against adopting an inflexible rule that assumes that all minors have noncriminal reasons for engaging in conduct involving the touching or exposure of sex organs. Donald, 343 Ill. App. 3d at 247-48 (Holdridge, J., specially concurring). He urged that courts consider the particular facts of each case and apply a case-by-case approach. Donald, 343 Ill. App. 3d at 248 (Holdridge, J., specially concurring).
In sum, the particular facts in the instant case create an inference that the respondent acted with the intent of sexual gratification. In erroneously determining otherwise, the majority failed to address the respondent’s remaining contentions, which include the issue of the constitutionality of the Illinois Sex Offender Registration Act as it pertains to minors. I therefore dissent from the majority’s disposition.