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SECOND DIVISION
November 25, 2003

No. 1-02-0456

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

Following an adjudicatory hearing, respondent F.M. was founddelinquent based on his commission of aggravated criminal sexualassault. Respondent was placed on five years' probation andordered to refrain from having any unsupervised contact withchildren under 12 years of age. On appeal, respondent contends:(1) the aggravated criminal sexual assault statute he was chargedwith violates due process because it permits felony adjudicationsbased on innocent conduct; (2) his disposition as a Class Xoffender pursuant to section 12-14(b)(i) of the Criminal Code of1961 was in error where that section properly is classified as aClass 4 offense; and (3) he was deprived of due process of lawwhere the State presented unreliable evidence of prior bad actsthrough a victim impact statement. We affirm.

FACTS

Respondent was charged with aggravated criminal sexualassault pursuant to section 12-14(b)(1). 720 ILCS 5/12-14(b)(1)(West 2000). He was adjudicated delinquent after a stipulatedadjudicatory hearing.

At the hearing on a motion to suppress statements, SergeantWilliam Stutzman of the Wheeling Police Department testified thaton March 29, 2000, he investigated a possible incident of sexualabuse between respondent, respondent's sister, and a neighborgirl. He called respondent's mother and asked her to bringrespondent to the police station. After being read his Mirandarights, respondent gave a verbal statement, followed by a writtenstatement. He admitted placing his penis in the mouths of hissister and the neighbor girl. The court denied the motion tosuppress.

The parties entered into a stipulatory adjudicatory hearingthat incorporated respondent's statement. They also stipulatedthat on March 28, 2000, respondent was 13 years old, and theneighbor victim was 6 years old. The state informed the courtthat the charges related to respondent's sister were nolleprossed. The trial judge adjudicated respondent delinquent ofaggravated criminal sexual assault.

At the dispositional hearing, the State introduced evidencein the form of two victim impact statements. The victim's fatherand mother each read a statement to the court. In the victim'smother's statement, she said, "what [the victim] saw was sheplayed a part in a game at least three separate times*** The factthat he subjected my daughter and his sister to this numeroustimes makes me wonder about my ability to protect my daughter."

The State recommended that respondent be placed on fiveyears' probation and ordered to refrain from having anyunsupervised contact with children under 12 years old. Theassistant public defender had no objection and said she was"fundamentally in agreement" with the recommended sentence. Thecourt followed the State's recommendation, placing respondent onfive years' probation and ordering respondent not to have anyunsupervised contact with children under 12. Respondent also wasordered to participate in sex offender treatment, with familycounseling and mandatory school attendance.

DECISION

I. Substantive Due Process

Respondent first contends the statue under which he wasfound delinquent, section 12-14(b)(i), violates due processbecause it sweeps too broadly and potentially punishes innocentconduct. The section charged against respondent does not requirethat sexual penetration be accompanied by sexual gratification orthe use or threat of force. Absent a requirement of criminalintent or a culpable mental state, respondent contends, merelychanging a baby's diaper or washing a baby with a washcloth couldbe punishable as a felony.

Whether a statute is constitutional is a question of law tobe reviewed de novo. People v. Morgan, 203 Ill. 2d 470, 486, 786N.E.2d 994 (2003). All statutes are presumed constitutional, andthe party challenging the constitutionality of a statute bearsthe burden of clearly establishing the alleged constitutionalviolation. In re R.C., 195 Ill. 2d 291, 296, 745 N.E.2d 1233(2001).

Section 12-14(b)(i) provides:

"(b) The accused commits aggravated criminal sexualassault if the accused was under 17 years of age and(i) commits an act of sexual penetration with a victimwho was under 9 years of age when the act wascommitted." 720 ILCS 5/12-14(b)(i) (West 2000).

"Sexual penetration" is defined as:

"any contact, however slight, between the sex organ oranus of one person by an object, the sex organ, mouthor anus of another person, or any intrusion, howeverslight, of any part of the body of one person or of anyanimal or object into the sex organ or anus of anotherperson ***." 720 ILCS 5/12-12(f) (West 2000).

The State contends respondent essentially is arguing section12-14(b)(i) is overbroad, the same defense argument rejected inPeople v. Terrell, 132 Ill. 2d 178, 547 N.E.2d 145 (1989), wherethe accused facially challenged the aggravated criminal sexualassault and criminal sexual assault statutes. There, the courtdiscussed two alternative requirements for standing to attack theconstitutionality of a statute: the person must be directlyaffected by the alleged unconstitutionality, or he must claim thestatute inhibits the exercise of rights protected under the FirstAmendment. Terrell, 132 Ill. 2d at 212. The first requirementprevented the defendant from pursuing his challenge to the faceof the statutes. That is, "[t]he defendant does not havestanding to challenge the constitutionality of those statutes onthe ground that they may be applied unconstitutionally in adifferent situation." Terrell, 132 Ill. 2d at 212.

Terrell would dispose of an overbreadth claim in this case,although the overbreadth doctrine was "designed to protect firstamendment freedom of expression from laws written so broadly thatthe fear of punishment might discourage people from takingadvantage of that freedom." People v. Anderson, 148 Ill. 2d 15,26, 591 N.E.2d 461 (1992), citing Broadrick v. Oklahoma, 413 U.S.601, 611-12, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973).

Respondent insists he is not arguing overbreadth in thiscase. Although we believe Terrell requires rejection ofrespondent's claim on standing grounds, we will address the dueprocess theory he relies on to attack the facial validity ofsection 12-14(b)(i).

Respondent contends section 12-14(b)(i) is unconstitutionalbecause it violates substantive due process. See Anderson, 148Ill. 2d at 27 (distinguishing between first amendment overbreadthclaim and due process claim based on People v. Wick, 107 Ill. 2d62, 481 N.E.2d 676 (1985)). When legislation does not affect afundamental right, we use the rational basis test to analyze asubstantive due process claim. People v. Wright, 194 Ill. 2d 1,24, 740 N.E.2d 755 (2000). We must determine whether the statutebears a reasonable relationship to its intended purpose, andwhether the means adopted are a reasonable method ofaccomplishing that purpose. Wright, 194 Ill. 2d at 24.

Respondent relies on three Illinois Supreme Court decisions:Wright, 194 Ill. 2d at 28 (invalidating section 5-401.2(i) of theVehicle Code providing that anyone who "knowingly" failed to keepcertain records for three years was guilty of a Class 2 felony);People v. Zaremba, 158 Ill. 2d 36, 42, 630 N.E.2d 797 (1994)(invalidating a section of the Illinois Theft Statute making it afelony for a person to obtain or exert control over property inthe custody of a law enforcement agency where that person hasbeen informed the property was stolen); and Wick, 107 Ill. 2d at66 (invalidating a section of the aggravated arson statute makingit a Class X felony to knowingly damage a building by a fire thatcaused injury to a fireman or police officer at the scene).

In each case the court held that because the statute did notrequire a culpable mental state it could be read to apply towholly innocent conduct. The statutes did not possess a rationalrelationship to their intended purpose because they could sweepin innocent people who reasonably believed they were engaging inlawful activity. Standing was not an issue in these cases.

Unlike the statutes in Wick, Wright, and Zaremba, thecriminal sexual assault statute does not reach innocent conduct. Although the definition of "sexual penetration" does notexpressly require a mental state, the legislature clearly did notintend the statute to define a strict liability or public welfareoffense. Terrell, 132 Ill. 2d at 209. This court and theIllinois Supreme Court have held the criminal sexual assaultstatute implicitly requires that the act of sexual penetration beintentional or knowing. See Terrell, 132 Ill. 2d at 209; Peoplev. Bofman, 283 Ill. App. 3d 546, 551, 670 N.E.2d 796 (1996);People v. Ramsey, 190 Ill. App. 3d 723, 726, 546 N.E.2d 1108(1989); People v. Jimenez, 191 Ill. App. 3d 13, 26, 547 N.E.2d616 (1989); People v. Smith, 152 Ill. App. 3d 589, 594, 504N.E.2d 850 (1987); People v. Bartay, 150 Ill. App. 3d 130, 132,501 N.E.2d 364 (1986); People v. Burmeister, 147 Ill. App. 3d218, 223-24, 497 N.E.2d 1212 (1986).

We disagree with respondent when he says section 12-14(b)(i)does not require an unlawful purpose, thereby punishing innocentas well as culpable conduct. The section does require culpableintent--the intent of someone under 17 to commit an act of sexualpenetration on a victim under 9. See Terrell, 132 Ill. 2d at209; Ramsey, 190 Ill. App. 3d at 726; Burmeister, 147 Ill. App.3d at 224. The statute does not punish innocent conduct. Jimenez, 191 Ill. App. 3d at 26; Burmeister, 155 Ill. App. 3d at223-24. Accordingly, we hold the aggravated criminal sexualassault statute does not violate due process.

II. Class X Offense

Respondent next contends he was improperly sentenced as aClass X offender where the sentencing provision of the criminalsexual assault statute did not classify subsection 12-14(b) as aClass X offense.

Section 12-14(d)(1) provided:

"Aggravated criminal sexual assault in violation ofparagraph (1), (2), (3), (4), (5), (6), or (7) ofsubsection (a) is a Class X felony***" 720 ILCS 5/12-14(d)(1) (West 2000).

The statute was silent as to the classification ofsubsection 12-14(b). Section 5-5-2(a) of the Unified Code ofCorrections provides an unclassified offense "which is declaredby law to be a felony or which provides a sentence to a term ofimprisonment for one year or more shall be a Class 4 felony." 730 ILCS 5/5-5-2(a) (West 2000). Accordingly, respondentcontends he should have been disposed as a Class 4 offender.

Subsequent to respondent's commission of the offense,section 12-14(d)(1) was amended by Public Act 92-502 to classifysection 12-14(b) as a Class X offense. Pub. Act 92-502, eff.December 19, 2001. The statute now provides:

"Aggravated criminal sexual assault in violation ofparagraph (2), (3), (4), (5), (6), or (7) of subsection(a) or in violation of subsection (b) or (c) is a ClassX felony." 720 ILCS 5/12-14(d)(1) (West 2001).

Notwithstanding the amendment, respondent contends theconstitutional prohibition against ex post facto laws requiresthat he be sentenced in accordance with the law in effect at thetime the offense was committed. See People v. Ollie, 333 Ill.App. 3d 971, 992, 777 N.E.2d 529 (2002).

The State responds that the legislature always intended forsection 12-14(b) to be a Class X offense. In 1984, thelegislature enacted Public Act 83-1067, to recodify the existingsexual offenses into "a comprehensive statute with uniformstatutory elements." Haywood, 118 Ill. 2d at 271. Section 12-14(d) of the original statute provided that all forms ofaggravated criminal sexual assault were Class X felonies. Pub.Act 83-1067, eff. July 1, 1984. A 1999 amendment, among otherthings, inserted "in violation of paragraph (1), (2), (3), (4),(5), (6), or (7) of subsection (a)" in the first sentence ofsubsection (d)(1), but made no reference to subsections (b) and(c). Pub. Act 91-404, eff. January 1, 2000. The State contendsthe statute's silence as to subsection (b) was a legislativeoversight which was remedied by the December 19, 2001, amendment.

The transcripts of the legislative debates bear this out. See 92nd Ill. Gen. Assem., Senate Proceedings, November 28, 2001,at 23, and November 29, 2001, at 28 (statements of SenatorDillard explaining amendment's purpose was to reenact penaltyprovisions in the aggravated criminal sexual assault statute thatwere erroneously eliminated); 92nd Ill. Gen. Assem., HouseProceedings, November 29, 2001, at 108-109 (statements ofRepresentative Hultgren stating the amendment corrected an errorin drafting that took out the penalty phase for aggravatedcriminal sexual assault).

The primary rule of statutory construction is to determineand give effect to the legislature's true intent. People v.Hickman, 163 Ill. 2d 250, 261, 644 N.E.2d 1147 (1994). When thelanguage of a statute is ambiguous, it is appropriate to resortto other methods of statutory construction to determinelegislative intent. People v. Koppa, 184 Ill. 2d 159, 169, 703N.E.2d 91 (1998). If the legislature's intent and purpose can beascertained from the statute, "words may be modified, altered, oreven supplied so as to obviate any repugnancy or inconsistencywith the legislative intention." People v. Parker, 123 Ill. 2d204, 210-11, 526 N.E.2d 135 (1988), quoting People v. Bratcher,63 Ill. 2d 534, 543, 349 N.E.2d 31 (1976). The "judiciarypossesses the authority to read language into a statute which hasbeen omitted through legislative oversight." People v. Smith,307 Ill. App. 3d 414, 419, 718 N.E.2d 640 (1999), quoting Peoplev. Chandler, 129 Ill. 2d 233, 253, 543 N.E.2d 1290 (1989).

In several cases cited by the State, courts have suppliedmissing words to statutes so as not to defeat the intention ofthe legislature. In Smith, 307 Ill. App. 3d at 417, thedefendant contended the absence of the language "predatorycriminal sexual assault of a child" from the sentencingprovisions of the indecent solicitation statute rendered thestatute void and unconstitutional. The court considered theobjective of the legislation in concluding the legislature'sfailure to include the language in the provision was an oversightrather than an intentional omission. Smith, 307 Ill. App. 3d at420. Similarly, in People v. Tellez, 295 Ill. App. 3d 639, 693N.E.2d 516 (1998), the statute treated criminal neglect of anelderly person and of a disabled person equally throughout thestatute, but the sentencing provision classifying the offense asa Class 3 felony was silent as to neglect of the disabled. Thecourt determined the omission of the words "or disabled" from thepenalty section of the statute was a legislative oversight. Tellez, 295 Ill. App. 3d at 643. See also Parker, 123 Ill. 2d at211, 213-14 (supreme court concluded the legislature intended the"sexual relations within families" statute to apply tostepparents; otherwise the legislative intent would have beendefeated).

In this case, we believe the legislature's failure toinclude subsection (b) in the sentencing provision of the statuteclassifying it as a Class X offense was not intentional, but anoversight. The legislature's December 19, 2001, amendmentincluding subsections (b) and (c) in the sentencing provision toconform with the original version of the statute, as well as thelegislative history of the amendment, support our holding. Respondent properly was sentenced as a Class X offender under thestatute.
III. Victim Impact Statement

Respondent next contends his sentence should be vacatedbecause the State introduced, through a victim impact statement,unreliable evidence that respondent had engaged in prior sexualmisconduct on three separate occasions. He contends the victim'smother's statement cannot be deemed trustworthy because there wasno showing that the accusations were reliable and accurate. SeePeople v. LaPointe, 88 Ill. 2d 482, 498-99, 431 N.E.2d 344 (1981)(at sentencing, trial court is not limited to consideringinformation that would be admissible at trial, but it mustexercise care to insure the accuracy of information considered).

We need not decide whether the evidence was properlyadmitted. Not only was respondent's sentence mandated bystatute, but respondent had no objection to and agreed to thesentence. Pursuant to section 5-715(1) of the Juvenile Court Actof 1987, the period of probation for a minor found guilty of aClass X offense "shall be at least 5 years." 705 ILCS 405/5-715(1) (West 2000). Since we have determined that respondentproperly was sentenced as a Class X offender, respondent's five-year probation was mandatory. Moreover, at the dispositionalhearing, the defense attorney failed to object to the victimimpact statement and indicated she was fundamentally in agreementwith the sentence recommended by the State because it wasmandated by statute. We find no error in respondent's sentence.

CONCLUSION

We affirm the decision and rulings of the trial court.

Affirmed.

BURKE, and GARCIA, JJ., concur.