In re T.W.

                                        FIFTH DIVISION
                                        August 22, 1997          
                                



No. 1-96-2705

In re T.W., a Minor (The People of    ) Appeal from the 
the State of Illinois,                ) Circuit Court of
                                      ) Cook County.              
         Petitioner-Appellee,         ) 
                                      ) 
     v.                               )     
                                      ) 
 T.W.,                                ) The Honorable
                                      ) Stuart F. Lubin,
         Respondent-Appellant).       ) Judge Presiding.          


     JUSTICE SOUTH delivered the opinion of the court:

     Minor-respondent, T.W., was charged by way of a petition for
adjudication of wardship with committing the offense of criminal
sexual assault, two counts of criminal sexual abuse and
aggravated criminal sexual abuse.  At the time the acts took
place, respondent was 16 years old, and the complainant, M.B.,
was 15 years old.
     After a bench trial, the court found that the relations
between the two minors were consensual and sustained respondent's
motion for a directed finding on the charges of criminal sexual
assault and aggravated criminal sexual abuse.  The court did,
however, find respondent delinquent on two counts of criminal
sexual abuse under sections 12-15(b) and (c) of the Criminal Code
of 1961 (720 ILCS 5/12-15(b), (c) (West 1996)).  Thereafter, the
court ordered that the case be closed but indicated that its
adjudication of delinquency was to stand.  Respondent appeals.
     Initially, we note that the State has moved to strike the
supplemental portion of the record that contains respondent's
motion to reconsider.  The State argues that respondent's motion
to reconsider does not reflect that it was ever filed before the
clerk of the circuit court.  The record of proceedings for June
11, 1996, indicates that the circuit court considered and then
denied a post-trial motion by respondent.  A copy of this motion
was not included in the record on appeal.  Respondent filed a
supplemental record with this court that contained the post-
trial motion to reconsider.  On December 11, 1996, the
respondent's motion was granted by this court, and that order
will stand.  Accordingly, the State's motion to strike the
supplemental portion of the record that contains respondent's
motion to reconsider is denied.    
     On appeal, respondent first contends that section 12-15(b)
(720 ILCS 5/12-15(b) (West 1996)) is unconstitutionally vague and
in violation of due process because it contains no minimum
objective standards for law enforcement officials to determine
which of two minors who engage in consensual sex is the accused
and which is the victim for purposes of prosecution.  Respondent
also argues that the statute is not rationally related to its
subject matter because it punishes minors who are intended to be
protected.  
     The State counters that section 12-15(b) is not
unconstitutionally vague inasmuch as the language of the statute
provides sufficient objective standards to guide law enforcement
officials in its application and that the statute is rationally
related to a legitimate state goal.  The State also contests the
respondent's standing to raise a facial challenge to section 12-
15(b). 
     We first address the State's contention that defendant does
not have standing.  According to the State, respondent lacks
standing to raise a facial challenge to section 12-15(b) that his
conduct clearly falls within the proscription of the statute and
the statute does not implicate first amendment rights.  
     In this instance, however, respondent does not contest the
constitutionality of the statute on the basis that it fails to
give adequate notice of what conduct is proscribed.  Rather,
respondent contests the validity of a statute that has
criminalized certain acts in which he and the complainant engaged
on the basis that it provides no objective standards to guide law
enforcement officials in determining which of the two minors is
the accused and which is the victim for purposes of prosecution. 
Respondent also contests the validity of the statute on the basis
that it is not rationally related to the subject matter of
protecting minors from the consequences of premature sexual
experiences.  
     The facts of the case implicate what respondent claims to be
the statute's constitutional infirmities, i.e., that the
standards set forth in the statute are unconstitutionally vague
and are not rationally related to its subject matter as applied
to him.  Thus, respondent has standing.
     Section 12-15(b) of the Criminal Code provides:
          "The accused commits criminal sexual abuse if
          the accused was under 17 years of age and
          commits and act of sexual penetration or
          sexual conduct with a victim who was at least
          9 years of age but under 17 years of age when
          the act was committed."  720 ILCS 5/12-15(b)
          (West 1996).
     
The primary rule of statutory construction is to ascertain and
give effect to legislative intent.  People v. Zaremba, 158 Ill. 2d 36, 630 N.E.2d 797 (1994).  An inquiry into the intention of
the legislature appropriately begins with the language of the  
statute.  Zaremba, 158 Ill. 2d 36, 630 N.E.2d 797.  Where
statutory language is clear, it will be given effect without
resorting to other aids for construction.  Zaremba, 158 Ill. 2d 36, 630 N.E.2d 797.
     Moreover, all statutes are presumed to be constitutionally
valid.  People v. Kimbrough, 163 Ill. 2d 231, 644 N.E.2d 1137
(1994).  The party challenging the statute's validity has the
burden of clearly establishing the statute's alleged
constitutional infirmities.  Kimbrough, 163 Ill. 2d 231, 644 N.E.2d 1137.  In construing a statute, this court has a duty to
affirm the statute's validity and constitutionality if reasonably
possible.  Kimbrough, 163 Ill. 2d 231, 644 N.E.2d 1137.  If the
statute's construction is doubtful, we must resolve all doubts in
favor of the statute's validity.  Kimbrough, 163 Ill. 2d 231, 644 N.E.2d 1137.  
     The due process clauses of the United States and Illinois
Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I,
 2) require that the proscriptions of a criminal statute be
clearly defined and provide definite warnings as to the
proscribed conduct.  People v. Owens, 273 Ill. App. 3d 490, 653 N.E.2d 10 (1995).  These requirements further three important
policies: (1) that they give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited so that he may
conform his conduct to the requirements of the law; (2) that they
provide standards that serve to prevent the arbitrary or
discriminatory application of the law by police, judges or
juries; and (3) that, where first amendment rights are
implicated, they insulate the exercise of those rights from the
chilling effect created by fear that such conduct may fall within
the statute's prohibitions.  People v. Secor, 279 Ill. App. 3d
389, 664 N.E.2d 1054 (1996).  
     Due process does not require an impossible standard of
preciseness of language and expression but, rather, is satisfied
where the statute's language and meaning are sufficiently
definite when measured by common understanding and practices. 
People v. Meyers, 158 Ill. 2d 46, 630 N.E.2d 811 (1994).  The
standard used to determine whether a statute violates the due
process clause is "whether the statute is reasonably designed to
remedy the evils which the legislature has determined to be a
threat to the public health, safety and general welfare."  People
v. Bradley, 79 Ill. 2d 410, 417, 403 N.E.2d 1029 (1980).  
     When a statute that does not involve first amendment rights
is challenged as being unconstitutionally vague on its face, it
will be so considered only where it is incapable of any valid
application in the sense that no standard of conduct is specified
at all.  People v. Burpo, 164 Ill. 2d 261, 647 N.E.2d 996 (1995). 
Applying these principles to the present case, we find that the
statute is sufficiently clear.
     Here, no first amendment issue is involved, and respondent
challenges the validity of section 12-15(b) on its face.  We need
only look to a situation where a 16-year-old engages in a sexual
act with a 9-year-old, to determine that the statute is capable
of some valid application.  Section 12-15(b) does not require the
element of force.  When a minor is accused of committing an act
of sexual penetration or sexual conduct upon another minor, even
though the act was consensual, if the accused is under 17 years
of age and the victim is at least 9 years of age but under 17
years of age when the act was committed, the statute's validity
is unquestionable.  
     Moreover, where, as here, two minors engage in a consensual
sexual act, the statute may validly be applied to prosecute both
minors on the basis that each is the victim of the other. 
Because section 12-15(b) may validly be applied to proscribe
sexual acts between 9-year-olds and 16-year-olds, respondent's
facial challenge must fail.
     Respondent further contends that section 12-15(b) is
unconstitutional as applied to him because the circuit court 
found that the sexual act between the parties was consensual and
the statute lacks objective standards for distinguishing between
the accused and the victim.  We disagree.  
     The legislatively determined definitions of "accused" and
"victim" are as follows:
          "'Accused' means a person accused of an
          offense prohibited by Sections 12-13, 12-14,
          12-15 or 12-16 of this Code or a person for
          whose conduct the accused is legally
          responsible under Article 5 of this Code."
          720 ILCS 5/12-12(a) (West 1996).

          "'Victim' means a person alleging to have
          been subjected to an offense prohibited by
          Sections 12-13, 12-14, 12-15 or 12-16 of this
          Code."  720 ILCS 5/12-12(g) (West 1996).

The statutory prerequisite for characterizing respondent as the
accused and M.B. as the victim was that M.B. alleged that
respondent subjected her to an offense prohibited by sections 12-
13(a)(1), 12-15(b) and (c) and 12-16(c)(2)(ii).  Absent any such
allegations, respondent would not have been characterized the
accused and M.B. would not have been characterized the victim.    
     Once M.B. filed her complaint alleging that respondent
subjected her to an offense prohibited by the statute, the
legislative definitions of the terms "accused" and "victim" were
sufficient objective standards to guide law enforcement  
officials, for purposes of prosecution.  In addition, as noted
above, where two minors engage in a consensual sexual act,
section 12-15(b) may validly be applied to prosecute both minors
because each is a victim of the other.  
     Respondent further contends that section 12-15(b) is
unconstitutionally vague, thereby violating his right to due
process because it is not rationally related to its subject
matter.  Respondent argues that this is so because the statute
punishes those it was designed to protect.  
     In Reed, the supreme court observed that the overall purpose
of sections 12-15(c) and 12-16(d) was to protect children who are
13 to 16 years old from the consequences of premature sexual
experiences.  People v. Reed, 148 Ill. 2d 1, 591 N.E.2d 455
(1992).  Under section 12-15(b), an accused who engages in sexual
acts with a victim who was at least 9 years of age but under 17
years of age is guilty of a misdemeanor if the accused was under
17 years of age when the act was committed.  720 ILCS 5/12-15(b)
(West 1996).  With the teachings of Reed in mind, section 12-
15(b) makes it clear that its overall purpose is to protect
children who are 9 to 16 years old from the consequences of
premature sexual experiences.
     In the present case, the statutory prerequisite for
characterizing respondent as the accused was satisfied, thereby
creating the possibility that respondent could be punished under
section 12-15(b), when the victim alleged that respondent
subjected her to an offense prohibited by the statute.  Although
respondent was a 16-year-old and, therefore, a member of the
class section 12-15(b) was designed to protect, his prosecution
under the statute did not violate his due process rights.  Once
respondent assumed the status of an accused as defined under the
statute, he relinquished his right to protection and was subject
to prosecution under section 12-15(b).   
       The legislature has determined that section 12-15(b) is a
rational means by which 9- to 16-year-olds may be protected from
the consequences of premature sexual experiences.  The supreme
court has already determined that the protection of minors is a
legitimate state goal.  Reed, 148 Ill. 2d 1, 591 N.E.2d 455.  The
fact that section 12-15(b) protects the victim and punishes those
who assume the status of an accused does not violate due process
because the statute is rationally related to the legitimate state
goal of protecting children 9 to 16 years old from the
consequences of premature sexual experiences.  Accordingly,
respondent's due process challenge must fail.   
     Respondent next contends that section 12-15(c) (720 ILCS
5/12-15(c) (West 1996)) violates the due process and equal
protection clauses, as applied to him, because the statute is not
rationally related to its subject matter, given the fact that the
only minimum objective standard it contains is the age of the
accused and because it punishes those it protects.  
     The State responds that section 12-15(c) is not
unconstitutionally vague because there are sufficient objective
standards to guide law enforcement in its application and the
statute is rationally related to a legitimate state goal. 
     As with due process, the test for an equal protection
violation is the same under either the federal or state
constitution.  U.S. Const., amend XIV; Ill. Const. 1970, art. 1,
 2; People v. Shephard, 152 Ill. 2d 489, 605 N.E.2d 518 (1992). 
The constitutional right to equal protection of the law
guarantees that the state will treat similarly situated persons
in a similar manner.  Shephard, 152 Ill. 2d 489, 605 N.E.2d 518. 
The state retains the power to classify and draw lines that treat
different classes of persons differently.  Shephard, 152 Ill. 2d 489, 605 N.E.2d 518.  However, the state may not arbitrarily
exercise its power to classify.  Reed, 148 Ill. 2d 1, 591 N.E.2d 455.  Only when the law "lays an unequal hand on those who have
committed intrinsically the same quality of offense" does the
equal protection clause come into play.  Bradley, 79 Ill. 2d  at
416.  The equal protection guarantee prohibits the state from
statutorily dividing persons into different classes and from
providing different treatment of each class for reasons wholly
unrelated to the purpose of the legislation.  Reed, 148 Ill. 2d 1, 591 N.E.2d 455.  
     To ensure that the state has not exercised its power to
classify arbitrarily, this court has used two standards of
judicial review.  Strict scrutiny is applied to certain "suspect"
classifications, such as those based on race, and to statutes
that impinge on fundamental constitutional rights.  Reed, 148 Ill. 2d  at 7.  Where a statutory classification neither impinges
on a fundamental constitutional right nor is based on a "suspect"
class, such as race, a court will use the "rational basis" test
to review the statute's validity.  Reed, 148 Ill. 2d 1, 591 N.E.2d 455.  In the present case, we apply the rational basis
test.
     Section 12-15(c) of the Criminal Code provides:
          "The accused commits criminal sexual abuse if
          he or she commits an act of sexual penetration
          or sexual conduct with a victim who was at
          least 13 years of age but under 17 years of
          age and the accused was less than 5 years
          older than the victim." 720 ILCS 5/12-15(c)
          (West 1996).               
As previously noted, our supreme court has stated that the
purpose of section 12-15(c) is to protect children who are 13 to
16 years old from the consequences of premature sexual
experiences.  Reed, 148 Ill. 2d 1, 591 N.E.2d 455.  There is a
rational relationship between the age classification created by
section 12-15(c), a disparity of less than five years in age, and
the purpose behind the statute.  
     Sexual relations between partners with a disparity of less
than five years in age expose children who are 13 to 16 years old
to the consequences of premature sexual experiences as do sexual
relations between partners with a disparity of more than five
years in age.  The supreme court has recognized that, under
section 12-15(c), "anyone who engages in sexual acts with a
minor, including another minor, is guilty of a misdemeanor if the
age difference between the parties is less than five years." 
Reed, 148 Ill. 2d  at 9.    
     Respondent correctly notes that, when young sexual partners
are less than five years apart in age, their levels of maturity
are more nearly equal and the opportunity for overreaching is
diminished.  Reed, 148 Ill. 2d 1, 591 N.E.2d 455.  The purpose of
section 12-15(c), however, is to protect children 13 to 16 years
old from the consequences of premature sexual experiences through
experimentation.  In contrast, section 12-16(d), whereby accused
sexual partners who are more than five years older than their
victims are charged with a class 2 felony, was enacted to protect
children from sexual overreaching. Compare 720 ILCS 5/12-15(c)
(West 1996) with 720 ILCS 5/12-16(d) (West 1996).  
     As noted by the circuit court, "there is a public policy
against underage sex with good reason in the State" and,
furthermore, "teen-age pregnancies are a big problem and this is
what the legislature does."  The legislature rationally concluded
that sexual experimentation between children 13 to 16 years old
with partners five or less years older than themselves exposes
children to the consequences of premature sexual experiences. 
Inasmuch as the parties' ages are less than five years apart, the
statutory scheme provides for a lesser degree of punishment than
in those cases where there is an age disparity of five or more
years between the parties.  Accordingly, we find that section 12-
15(c)'s age classification is a reasonable and rational means
towards a legitimate state goal.
     Respondent further contends that section 12-15(c) is
unconstitutional because the statute punishes those it was
designed to protect.  We have addressed this argument with
respect to section 12-15(b).  Respondent was in the class to be
protected under the statute.  However, once he assumed the status
of an accused as defined under the statute, he relinquished his
right to protection and was subject to prosecution under the
statute.  For the foregoing reasons, we find that section 12-
15(c) comports with the equal protection clause.
     Although expressed in slightly different language, the
standard used to determine the constitutionality of a statute
under the equal protection and due process clauses is identical. 
Reed, 148 Ill. 2d 1, 591 N.E.2d 455.  As in the case of equal
protection, legislation challenged on due process grounds will be
upheld if it is rationally related to a legitimate state goal. 
Reed, 148 Ill. 2d 1, 591 N.E.2d 455.
     We have previously held that section 12-15(c) is rationally
related to the state's legitimate goal of protecting children who
are 13 to 16 years old from the consequences of premature sexual
experiences and, therefore, comports with the equal protection
clause.  Consequently, we hold that section 12-15(c) also
comports with the due process clause.
     For reasons stated above, we reject respondents' vagueness
challenge to sections 12-15(b) and (c) (720 ILCS 5/12-15(b), (c)
(West 1996)).  Therefore, we hold that the statutory schemes
under consideration are constitutional.  The judgment of the
circuit court's finding of delinquency as to the two counts of
criminal sexual abuse is affirmed.      
     Affirmed.
     HOFFMAN and HOURIHANE, JJ., concur.