People v. M.T. , 304 Ill. Dec. 336 ( 2006 )

Docket No. 99310.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re M.T., a Minor (The People of the State of Illinois,
Appellant, v. M.T.,
Appellee).
Opinion filed June 22, 2006.
JUSTICE KILBRIDE delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, McMorrow,
Fitzgerald, Garman, and Karmeier concurred in the judgment
and opinion.
OPINION
In this case, the minor respondent was adjudicated
delinquent following a judicial determination that he had
violated the indecent solicitation of an adult statute (statute or
solicitation statute) (720 ILCS 5/11B6.5(a) (West 2000)). The
appellate court held that the statute violated the proportionate
penalties clause of our state constitution (Ill. Const. 1970, art. I,
'11) based on its use of cross-comparison analysis and found
the entire statute unconstitutional. The State appealed, and
respondent cross-appealed. We reverse the appellate court=s
judgment because we no longer apply cross-comparison
analysis in proportionate penalties cases. We agree with the
appellate court that the statute applies equally to adult and
juvenile offenders and that the statute does not violate due
process principles. We also hold that respondent has standing
to raise the due process challenge.
I. BACKGROUND
Respondent, 16-year-old M.T., was adjudicated delinquent
because he was found to have violated the solicitation statute.
On March 16, 2001, while at school, respondent asked 16-
year-old A.T. whether he wanted to receive oral sex, and A.T.
responded affirmatively. A.T. followed respondent=s instructions
to go to the high school science room. Respondent told A.D.,
another minor, to Ago tell that b*** to go down to [the science]
room.@ A.D. believed respondent was referring to an 18-year-
old junior named E.J. 1 A.D. relayed respondent=s message to
E.J., who went to the science room. A.T. testified that
respondent and E.J. were in the science room when he
entered. E.J. testified that after A.T. entered the room,
respondent told her to perform oral sex on A.T., and she
complied because she was afraid respondent would physically
harm her if she refused. Respondent denied all of the
allegations against him, but was nonetheless found to have
violated the statute and was adjudicated delinquent. He was
made a ward of the state and sentenced as a juvenile to 18
months= probation, seven days in the Juvenile Detention
Center, with credit for time served, 23 additional days in
custody with a stay of the mittimus, and registration and
evaluation as a sex offender.
Respondent appealed, arguing that the solicitation statute
did not apply to juveniles and that it violated both the due
process clauses of the federal and state constitutions (U.S.
Const., amend. XIV; Ill. Const. 1970, art. I, '2) and the
1
Although E.J. was not a minor at the time of this incident, we will use
only her initials as identification.
-2-
proportionate penalties clause of the Illinois Constitution (Ill.
Const. 1970, art. I, '11). The appellate court held that the
statute applied to juveniles, was not unconstitutionally vague
as it applied to respondent, and that respondent lacked
standing to raise his facial constitutional claims. In re M.T., 346
Ill. App. 3d 83 (2004). Respondent filed a petition for leave to
appeal in this court.
We initially denied respondent=s petition, but issued a
supervisory order directing the appellate court to vacate its
judgment and consider his due process and proportionate
penalties challenges on the merits. In re M.T., 209 Ill. 2d 581
(2004) (supervisory order). The appellate court subsequently
filed an opinion reiterating its original beliefs that the solicitation
statute applied to juveniles and that respondent lacked
standing to make his due process and proportionate penalties
arguments. Following our instructions to review the latter
arguments on the merits, the appellate court also held that the
statute did not violate due process principles, but that it did
violate the proportionate penalties clause in such a pervasive
manner that the entire statute was rendered unconstitutional.
352 Ill. App. 3d 131. This court allowed the State=s petition for
leave to appeal as a matter of right. 177 Ill. 2d R. 315.
Respondent cross-appealed.
II. ANALYSIS
The State first asserts that the minor respondent lacks
standing to challenge the constitutionality of the solicitation
statute since its sentencing provisions were inapplicable to him.
The State also argues that the appellate court erred by
concluding that the statute violates the proportionate penalties
clause. In respondent=s brief, he maintains that he has standing
to raise his constitutional claims and that the statute violates
the proportionate penalties clause both when the issue is
analyzed under our prior cross-comparison analysis, previously
used for comparing different offenses with similar purposes,
and when it is reviewed by considering the severity of the
penalties for offenses containing identical elements, relying in
part on People v. Graves, 207 Ill. 2d 478 (2003).
-3-
In respondent=s cross-appeal, he reiterates the latter
proportionate penalties arguments, as well as raising two other
issues: (1) whether the indecent solicitation of an adult statute
(720 ILCS 5/11B6.5 (West 2000)) may be properly applied to
juvenile offenders; and (2) whether the statute is a facial
violation of the due process clause of the United States and the
Illinois constitutions (U.S. Const., amend. XIV; Ill. Const. 1970,
art. I, '2). Respondent=s latter contention is comprised of two
discrete arguments. In these arguments, he contends the
statute: (1) improperly turns misdemeanor conduct into a
felony; and (2) does not contain the requirement of a culpable
mental state or criminal purpose, thus potentially criminalizing
innocent conduct. We first address the applicability of the
statute to juvenile offenders because it presents an issue of
statutory construction not implicating constitutional
considerations that need not be addressed if the appeal may
be resolved on other grounds. See People v. Lee, 214 Ill. 2d
476, 482 (2005).
A. Application of the Solicitation Statute to Juvenile
Offenders
Respondent contends that the indecent solicitation of an
adult statute does not apply to juveniles because the
legislature intended to protect minors by criminalizing the acts
of adults who Aarrange@ sexual penetration or sexual conduct
between adults and children. In support, respondent cites brief
portions of the record in the state General Assembly indicating
that the original impetus for the bill was the difficulty a State=s
Attorney experienced in prosecuting an adult who had lured
juveniles into sexual encounters with other adults. From this,
respondent generalizes that the statute was not intended to
apply to juveniles who arrange similar contacts, relying on In re
Detention of Lieberman, 201 Ill. 2d 300, 307 (2002), for his
approach to statutory interpretation. As an issue of statutory
construction, respondent=s argument is subject to de novo
review. In re B.L.S., 202 Ill. 2d 510, 514 (2002).
In Lieberman, this court reiterated our long-standing
principle that the primary objective of a reviewing court is to
determine and effectuate the intent of the legislature,
-4-
subordinating all other rules of construction. Lieberman, 201 Ill.
2d at 307. We emphasized that A >the most reliable indicator= @
of that intent is the language selected by the legislature, given
its plain and ordinary meaning. Lieberman, 201 Ill. 2d at 308,
quoting Michigan Avenue National Bank v. County of Cook,
191 Ill. 2d 493, 504 (2000). In addition, we noted that specific
provisions must be read in relation to the entire statute, with all
words being construed in relation to other relevant sections.
Whenever possible, each word should be construed to avoid
rendering it superfluous. With those fundamental concepts in
mind, we indicated that courts may sometimes consider both
the statutory language and Athe reason and necessity for the
law, the evils sought to be remedied, and the purpose to be
achieved.@ Lieberman, 201 Ill. 2d at 308. We then examined
whether the definition of Aa >[s]exually violent offense= @ as used
in the Sexually Violent Persons Commitment Act (725 ILCS
207/1 et seq. (West 1998)) included the now-repealed crime of
rape. Lieberman, 201 Ill. 2d at 310.
In looking beyond the literal language of the statute, we
explained that A > A[w]here the spirit and intent of the General
Assembly in adopting an act are clearly expressed and its
objects and purposes are clearly set forth, courts are not bound
by the literal language of a particular clause which would defeat
the obvious intent of the legislature.@ = @ Lieberman, 201 Ill. 2d
at 312, quoting People v. McCoy, 63 Ill. 2d 40, 45 (1976),
quoting Continental Illinois National Bank & Trust Co. of
Chicago v. Illinois State Toll Highway Comm=n, 42 Ill. 2d 385,
395 (1969). Finding that the exclusion of a conviction for rape
from the category of sexually violent offenses would Alead[ ] to
absurd results and prejudice[ ] the public interest in keeping
citizens safe from violent sexual offenders,@ we held that the
legislature=s omission of the repealed crime was an apparent
oversight and that a contrary interpretation would A >frustrate
the spirit of the statute and the intent of the legislature.= @
Lieberman, 201 Ill. 2d at 320, quoting Gill v. Miller, 94 Ill. 2d 52,
59 (1983).
Here, adopting respondent=s construction of the solicitation
statute would produce a similarly absurd result and frustrate
both the intent and the spirit of the legislation. The plain
-5-
language of the statute broadly states: A[a] person commits
indecent solicitation of an adult if the person@ arranges for
someone over the age of 17 to commit an act of sexual
penetration or other sexual conduct with a child under the age
of 13 or between the ages of 13 and 17. (Emphases added.)
720 ILCS 5/11B6.5(a) (West 2000). Thus, the statute expressly
defines the requisite ages of the person who would actually
commit the sexual conduct as well as of the minor who is the
intended victim, but not the age of the person who arranges for
the illicit contact.
As respondent readily acknowledges, the clear intent of the
statute is to protect children. In his argument, he attempts to
bring himself within that protected group based solely on his
status as a person under the age of 17 at the time of the
offense. Respondent=s argument fails to recognize, however,
that the plain meaning of the language shows that this
particular statute was designed to protect children from certain
specified evils, namely, sexual penetration or sexual conduct
with adults. There is no hint that the statute was intended to
protect children from prosecution for their criminal acts.
Here, respondent was not in danger of becoming the victim
of either of the evils noted in the statute. Quite to the contrary,
he was judicially found to have been the instigator of those
targeted evils by arranging for sexual conduct involving an
adult (E.J.) and a minor (A.T.). To read the statute as
protecting respondent from prosecution due to his age would
not only violate the plain meaning of the statutory language but
also Alead[ ] to absurd results and prejudice[ ] the public
interest@ as well as A >frustrate the spirit of the statute and the
intent of the legislature.= @ Lieberman, 201 Ill. 2d at 320, quoting
Gill, 94 Ill. 2d at 59. We hold that the indecent solicitation of an
adult statute is equally applicable to both persons under and
over the age of 17.
B. Proportionate Penalties Challenges
We note that before the scheduled oral argument in this
case, respondent filed a motion for leave to withdraw both of
his proportionate penalties arguments due to our recent
-6-
decision in People v. Sharpe, 216 Ill. 2d 481 (2005). Prior to
Sharpe, this court recognized three types of proportionate
penalties challenges: (1) those raising cross-comparison
analysis, requiring courts to judge penalties by comparing the
penalties for offenses with differing elements (Sharpe, 216 Ill.
2d at 516-17); (2) those claiming a particular penalty was
excessively severe and therefore Acruel or degrading;@ and (3)
those comparing the severity of penalties for offenses with
identical elements. Sharpe, 216 Ill. 2d at 521. Respondent
made two of these three types of challenges, inviting both the
use of cross-comparison analysis and a comparison of the
penalties in offenses with an identity of elements. He did not
claim that the statutory penalty was Acruel or degrading.@
In Sharpe, this court ended our use of cross-comparison
analysis, while continuing to permit proportionate penalty
claims involving either the Acruel or degrading@ standard or
challenging the penalties in offenses with identical elements.
Sharpe, 216 Ill. 2d at 521. Respondent=s abandonment of his
proportionate penalty challenges was based on this change as
well as our reversal of Graves. Respondent indicated his belief
that the reversal of Graves Aat best significantly diminishes, if it
does not completely eliminate, the precedential effect of the
appellate court=s Graves decision.@ Thus, he sought to
withdraw both of his proportionate penalties arguments. This
court allowed respondent=s motion for leave to withdraw those
claims prior to hearing oral arguments in this case.
Nonetheless, the State=s contention that the appellate court
erred in finding that the solicitation statute violates the
proportionate penalties clause remains properly before this
court. The appellate court=s finding of unconstitutionality was
based entirely on the application of cross-comparison analysis.
352 Ill. App. 3d at 148-50. Notably, the court conducted its
review long before the issuance of our decision in Sharpe. With
the subsequent elimination of cross-comparison analysis in
Sharpe, we now reverse the appellate court=s holding that the
statute was constitutionally invalid based on that analysis.
C. Due Process Challenges
-7-
i. Standing
We next address respondent=s facial challenges to the
statute based on the federal and state due process clauses.
We must first briefly examine the issue of standing. Standing is
a factor in justiciability that must be decided on a case-by-case
basis. The doctrine of standing is necessary to ensure that only
parties with a genuine interest in the outcome of a case will
raise and argue its issues. People v. Greco, 204 Ill. 2d 400,
409 (2003).
Here, the State asserts that respondent lacks standing to
challenge the constitutionality of section 6.5(a)(1)(ii) because,
as a juvenile offender, he was not sentenced under its
provisions. While this assertion may have been relevant to
respondent=s ability to make proportionate penalties
arguments, he has now abandoned those claims on appeal.
His remaining three contentions do not attack the sentencing
provisions of the statute. Rather, respondent claims his
delinquency finding under the substantive provisions of the
statute violates the due process clause.
In respondent=s initial due process claim, he maintains that
the legislature was not empowered to define the act of merely
arranging for sexual conduct between an adult and a child as a
felony while characterizing actual sexual conduct with a child
as a misdemeanor. Respondent=s brief specifically states that
he is challenging Athe constitutionality of the statute in its
entirety, not any uncharged or inapplicable provisions, and [he]
argues that because this criminal statute violates due process
***, it is completely invalid.@ Respondent=s arguments also refer
to the Apervasive@ nature of the alleged constitutional flaw. He
asserts standing because he was adjudicated delinquent based
on a judicial finding that he had violated a statute that he
contends should be deemed Avoid ab initio@ because it is
constitutionally invalid in its entirety. These arguments
establish that respondent is challenging more than the mere
sentencing provisions of the statute.
In addition, respondent notes that, even as a juvenile not
subject to imprisonment risks identical to those faced by adult
offenders, he has nonetheless suffered direct harm from being
found in violation of the statute. While his juvenile court record
-8-
may be expunged of entries relating to misdemeanor
violations, adjudication records Abased upon *** sex offenses
which would be felonies if committed by an adult,@ including
violations of the solicitation statute, are statutorily barred from
being expunged. 705 ILCS 405/5B915 (West 2004). As we
recognized in In re Christopher K., 217 Ill. 2d 348, 359 (2005),
A[n]ullification of a conviction may hold important consequences
for a defendant,@ even when the sentence imposed is not at
issue. Here, respondent maintains he is directly harmed by the
legislature=s decision to create a felony solicitation statute for
reasons wholly unrelated to pure sentencing differences
between felony and misdemeanor offenses.
After reviewing respondent=s challenge to the legislature=s
ability to enact these disparate offense classes, we agree it
addresses the substantive validity of the statute underlying
respondent=s adjudication of delinquency. Thus, respondent
falls Awithin the class aggrieved by the alleged
unconstitutionality@ of that statute for purposes of raising this
due process challenge. See People v. Morgan, 203 Ill. 2d 470,
482 (2003) (stating the well-established general rule for
determining issues of standing). The fact that respondent was
not actually sentenced under the provisions in the adult statute
does not negate the broader nature of the arguments
presented in his brief.
Next, we address the issue of standing in respondent=s
remaining two due process claims. We note that these claims
assert that the solicitation statute improperly lacks the requisite
elements of a culpable mental state and knowledge of the
participants= ages. Both these contentions relate to the
substantive characteristics of the statute rather than to the
nature of its sentencing provisions. Respondent has standing
to raise these two due process challenges because his
adjudication of delinquency was based on a judicial finding that
the allegedly inadequate statutory elements were met. See
Morgan, 203 Ill. 2d at 482.
ii. Conversion of Misdemeanor Conduct Into a Felony
-9-
Turning next to the merits of respondent=s due process
arguments, he first claims that the statute improperly converts
misdemeanor conduct into a felony since the adult who actually
engages in sexual conduct with a child commits a
misdemeanor while the person who simply arranges the
meeting is chargeable with a felony. Although respondent
asserts he is making a due process challenge, the true nature
of his claim is clouded by the substantive argument in his brief.
In addressing whether the statute passes the Areasonable
relationship@ test for substantive due process violations, he
contends Ait is not within the legislature=s power to act
unconstitutionally and they did so here by enacting a statute
with unconstitutionally disproportionate penalties.@ Later, he
maintains that
A[a]t issue here is that the indecent solicitation of an
adult statute is unconstitutionally disproportionate
because the more culpable action of the principal, who
actually has sex with a child between the ages of 13
and 17, can only be charged with a Class A
misdemeanor but the person who arranged the sex act
is punished much more severely despite being
prosecuted essentially as an accomplice to the
principal.@
Based on these remarks, respondent=s purported due process
arguments may be seen as actually constituting
disproportionate penalty claims in the guise of due process
challenges.
As we previously noted, respondent has abandoned both
his cross-comparison and Aidentical element@ arguments and
does not make a Acruel or degrading@ penalty claim. Thus, to
the extent respondent=s due process argument is actually
rooted in a proportionate penalty claim, we reject it.
Accordingly, we turn to a strict due process analysis. In
Sharpe, the defendant raised a due process argument in
addition to his proportionate penalties challenge. In his due
process claim, the defendant asserted that the statutory 25-
years-to-life sentencing enhancement for the mere use of a
firearm during the commission of first degree murder created
-10-
Aa harsher penalty than the baseline penalty for first degree
murder@ of 20 to 60 years in prison because the murder
conviction required the actual, intentional killing of another
person. Sharpe, 216 Ill. 2d at 530-31. Similarly, here
respondent claims the indecent solicitation of an adult statute
unconstitutionally punishes offenders more harshly than does
the criminal sexual abuse statute (720 ILCS 5/12B15(c) (West
2000)). He asserts that under the solicitation statute individuals
who merely arrange for sexual activity between an adult and a
child are convicted of a Class 1 felony, while those who
actually engage in that activity are guilty of only a Class A
misdemeanor.
In Sharpe, this court explained that due process does not
Aplace[ ] such tight constraints on the legislature=s power to set
criminal penalties that the legislature is forbidden from taking
potential harm into account in enhancing the punishment for
conduct which additionally causes actual harm.@ Sharpe, 216
Ill. 2d at 531. The same is true here, where one goal of the
statute was to allow for easier prosecution of persons who
endanger children by arranging for adults to have sexual
contact with them. This goal was demonstrated by the
legislative history cited by respondent. 88th Ill. Gen. Assem.,
Senate Proceedings, May 13, 1993, at 141 (statement by
Senator Fitzgerald, noting the Abill seeks to add the offense of
indecent solicitation of an adult, and *** would make it easier
for prosecutors to make one accountable for what [a] particular
individual did,@ namely, Aluring young men to have sex with a
prostitute@); 88th Ill. Gen. Assem., House Proceedings, April
20, 1993, at 152-53 (statement by Representative Johnson, a
sponsor of the bill, stating the Acase deals with *** two adults
trying to line up a sex act with somebody under the age of 13
*** [or] between the ages of 13 years and 17 years@).
To survive a due process challenge, a penalty must only
Abe reasonably designed to remedy the particular evil that the
legislature was targeting.@ Sharpe, 216 Ill. 2d at 531. By
allowing prosecutors to charge defendants with indecent
solicitation of an adult rather than requiring them to undertake
the more difficult task of proving criminal sexual abuse under a
theory of accountability, the legislature took reasonable steps
-11-
to alleviate a problem apparently perceived by some
prosecutors in these cases. As in Sharpe, the legislature may
consider the potential harm to all children posed by individuals
who arrange for sexual encounters between minors and adults
in establishing appropriate punishment. See Sharpe, 216 Ill. 2d
at 531.
Here, the legislature chose to impose a more severe
penalty on those convicted under the solicitation act than on
those convicted of criminal sexual abuse. Respondent has not
established that the actual harm done to a single victim of
criminal sexual abuse, vile though it may be, is inherently more
serious than the uncontrolled actions of a person who arranges
for the perpetration of sexual abuse by adults on any number
of innocent children. As a facial challenge, respondent=s claim
cannot succeed. If any situation may be posited where the
statute could be validly applied, the facial challenge must fail.
People v. Huddleston, 212 Ill. 2d 107, 145 (2004), quoting Hill
v. Cowan, 202 Ill. 2d 151, 157 (2002).
In this case, we can envision any number of instances
where a person charged with indecent solicitation of an adult
for repeatedly arranging sexual contacts between adults and
children would precipitate far greater potential societal harm
than one charged with a single instance of criminal sexual
abuse. For example, a person charged under the solicitation
statute may have been conducting a profitable business by
matching up adults with unsuspecting or unwitting minors for
the purpose of sexual conduct. The societal impact and danger
to the general public presented to children by this sort of
concerted Abusiness@ activity would far outweigh the overall
harm incurred where a 16-year-old is charged with criminal
sexual abuse for engaging in a single instance of sexual
conduct with a 13-year-old schoolmate. For these reasons, we
reject respondent=s contention that, on its face, the statute
violates the due process clause by turning misdemeanor
conduct into a felony.
iii. Culpable Mental State
-12-
Respondent also asserts that the statute is a facial violation
of due process because it does not require a culpable mental
state or a criminal purpose, thus potentially punishing innocent
conduct. In support of this argument, respondent cites People
v. Wick, 107 Ill. 2d 62 (1985), People v. Zaremba, 158 Ill. 2d 36
(1994), and People v. Wright, 194 Ill. 2d 1 (2000). In Wick, this
court invalidated a portion of the aggravated arson statute
making it a Class X felony to use fire or explosives knowingly to
damage property, thereby causing injury to a firefighter or
police officer acting in the line of duty at the scene. Wick, 107
Ill. 2d at 64-65. We stated that the statute swept too broadly by
including innocent conduct such as clearing space for the
construction of a new barn by burning down the old one,
precluding it from being a reasonable legislative means to
punish arsonists. Wick, 107 Ill. 2d at 66.
Likewise, in Zaremba, this court invalidated a provision that
defined theft as the knowing act of obtaining or exerting control
over property in the custody of law enforcement that has been
represented to have been stolen. Zaremba, 158 Ill. 2d at 39-40.
We explained that without a provision requiring either that the
control be unauthorized or that it be accompanied by an intent
to deprive the rightful owner of permanent possession, there
was no culpable mental state requirement, and thus the
provision did not bear a reasonable relationship to its legislative
purpose. Zaremba, 158 Ill. 2d at 41-42. In People v. Wright,
this court found a statute criminalizing the knowing failure to
keep certain motor vehicle records was invalid despite the
presence of a knowledge requirement. As we explained, the
statute failed to include an exception for minor lapses in
record-keeping attributable to innocent reasons, including
disability or family crisis, thus subjecting innocent conduct to
criminal prosecution. Wright, 194 Ill. 2d at 28-30.
Respondent claims that the statute at issue in this appeal is
similar to those invalidated in the cited cases since its lack of a
culpable mental state or criminal purpose requirement means
innocent conduct, such as arranging a simple date or meeting
between a child and an adult, may be prosecuted as a felony
offense. Respondent argues that for this reason the statute
does not bear a reasonable relationship to the legislature=s
-13-
intent of protecting children from adults. To address this
contention, we must examine the actual language chosen by
the legislature.
The solicitation statute makes it a felony for a person to
Aarrange[ ]@ for someone over the age of 17 to commit an act of
sexual penetration or other sexual conduct with a child under
the age of 13 or between the ages of 13 and 17. 720 ILCS
5/11B6.5(a) (West 2000). Whenever possible, the words
chosen by the legislature are to be given their plain and
ordinary meaning, as the best indicator of legislative intent.
U.S. Bank National Ass=n v. Clark, 216 Ill. 2d 334, 346 (2005).
Here, the plain meaning of the word Aarrange@ is critical to our
resolution of this issue.
Under the relevant definition in this instance, Aarrange@
means: Ato put in order beforehand : make preparations for :
PLAN.@ Webster=s Third New International Dictionary 120
(1993). To Aplan@ means: A1 : to arrange the parts of : DESIGN
*** 2 : to devise or project the realization or achievement of :
prearrange the details of *** 3 : to set down the features of in a
plan : represent by a plan *** 4 : to have in mind : INTEND *** 5
: to devise procedures or regulations for in accordance with a
comprehensive plan for achieving a given objective ***.@
Webster=s Third New International Dictionary 1730 (1993).
Inherent in each of these commonly understood definitions is
knowledge of the object or activity being planned or arranged.
In this case, that knowledge provides the culpable mental state
and criminal purpose needed to uphold the statute in the face
of a due process challenge. Accordingly, for the reasons
previously discussed, we find Wick, Zaremba, and Wright
inapposite. Unlike those cases, here the statute includes
language that narrowly defines the requisite culpable mental
state, precluding the potential problem in those cases of
innocent conduct being deemed a crime.
To obtain a conviction under the indecent solicitation of an
adult statute, the State must present sufficient evidence to
establish that the accused arranged (planned) that an adult, as
defined in the statute, commit an act of either sexual
penetration or sexual conduct with a child under the age of 17.
720 ILCS 5/11B6.5(a) (West 2000). Contrary to respondent=s
-14-
contention, the innocent act of arranging a date or a social
meeting between an adult and a child would not fall within the
scope of the statute. Under the statute, a felony is committed
only when an arranged meeting is specifically planned to
involve the commission of sexual acts between the adult and
the child. That is precisely what occurred here. Respondent
was not simply setting up a casual date when he instructed a
fellow student to get E.J., an 18-year-old junior, from her
classroom and take her to the science room. There,
respondent specifically instructed her to perform oral sex on
A.T., a 16-year-old student. That conduct is an example of the
type of planned, intentional activity the legislature meant to bar
by prohibiting the Aarrangement@ of sexual acts between adults
and minors. The statute properly includes a culpable mental
state and criminal purpose and therefore does not violate due
process.
iv. Knowledge of Age
Finally, we note that during oral argument, respondent
focused on a new allegation, namely, that the statute violates
due process by failing to require a showing that the accused
either knew, or reasonably should have known, the ages of the
child-victim and the solicited adult. As this allegation was not
raised in respondent=s briefs, it was forfeited. People v. Blair,
215 Ill. 2d 427, 443-44 (2005). Nonetheless, even if the
argument had been timely raised, we would remain
unpersuaded.
Respondent=s claim again mounts only a facial challenge to
the statute on due process grounds, not an Aas applied@
challenge. Successfully making a facial challenge to a statute=s
constitutionality is extremely difficult, requiring a showing that
the statute would be invalid under any imaginable set of
circumstances. The invalidity of the statute in one particular set
of circumstances is insufficient to prove its facial invalidity. In re
Parentage of John M., 212 Ill. 2d 253, 269 (2004). A >[S]o long
as there exists a situation in which a statute could be validly
applied, a facial challenge must fail.= @ People v. Huddleston,
212 Ill. 2d 107, 145 (2004), quoting Hill, 202 Ill. 2d at 157.
-15-
Here, it is a simple exercise to imagine a factual scenario
where the physical appearances would readily establish the
victim=s age as under 17 and the solicited adult=s age as over
17, as required by the statute. The solicitation statute would not
violate due process by failing to include a specific requirement
of knowledge of the participants= ages under at least one
factual scenario; thus, respondent=s facial challenge must fail.
III. CONCLUSION
For the reasons stated, we hold that: (1) the indecent
solicitation of an adult statute is applicable to juveniles; (2) the
appellate court erred by applying cross-comparison analysis in
concluding that the statute violated the proportionate penalties
clause; (3) respondent has standing to raise facial challenges
to the statute under the due process clause; and (4) the statute
does not violate due process by failing to require a culpable
mental state or knowledge of the participants= ages or by
converting misdemeanor conduct into a felony.
The judgment of the appellate court is reversed, and the
judgment of the circuit court is affirmed.
Appellate court judgment reversed;
circuit court judgment affirmed.
-16-