People v. Boyer ( 1974 )

Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was convicted in a bench trial of the offense of aggravated incest and sentenced to imprisonment for 1 to 5 years. He raises two issues on appeal. First, he contends that the conviction should be reversed because section 11 — 10 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, § 11 — 10) amounts to a denial of equal protection for fathers and is discriminatory on the basis of sex in violation of article I, section 18, of .the Constitution of Illinois. Second, defendant contends the trial court abused its discretion in denying him probation. .

Section 11 — 10 of the Code defines “aggravated incest” as:

“Any male person who shall perform'any of the following acts with a person he knows is his daughter commits aggravated incest:

(1) Has sexual intercourse; or

(2) An act of deviate sexual conduct.”

(Ill. Rev. Stat. 1971, ch. 38, § 11 — 10.)

The Criminal Code defines incest to be an act of sexual intercourse or deviate sexual conduct between mother and son or brother and sister. (Ill. Rev. Stat. 1971, ch. 38, § 11 — 11.) Incest is a Class 3 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, § 11 — 11(b)), whereas aggravated incest carries a penalty provision as a Class 2 felony. Ill. Rev. Stat. 1972 Supp'., ch..38, § 11 — 10(c).

Defendant contends that fathers are denied equal protection of the laws and suffer sexual discrimination in that they are subjected to the penalties of a Class 2 felony for acts forbidden by the statutes, whereas a mother would be subjected to a Class 3 felony. The prohibited sexual relationship is between a parent and that parent’s child. When the parent is a male and the child his daughter, the man is subjected to a possible maximum prison term of 20 years. (Ill. Rev. Stat. 1971, ch. 38, § 1005— 8 — 1(b)(3).) However, if the parent is female and she has sexual relations with her son, she is subjected to a maximum possible term of imprisonment of 10 years. (Ill. Rev. Stat. 1971, ch. 38, § 1005 — 8—1(b) (4).) Similarly, sexual relations between brother and sister are punishable by a maximum of 10 years imprisonment.

It should be emphasized at this point that the offenses of aggravated incest or incest as statutorily defined do not involve any element of force.

Section 18 of the Bill of Rights of the Constitution of 1970 (Ill. Const. (1970), art. , § 18) provides:

“The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.”

In People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, the supreme court indicated this provision was intended to expand' the protections of the equal protection provision of the Bill of Rights. Inclusion of article I, section 18, required the court to hold that a classification based upon sex is a “suspect classification” • and must' be able to withstand “strict judicial scrutiny” to be held valid.

The purpose of the statutes mating incest a criminal offense is tó prohibit sexual intercourse between those, persons closely related, and thereby promote domestic peace and social policy. (42 C.J.S. Incest § 1 (1944).) The reasoning was expanded upon by the drafters of sections 11 — 10 and 11 — 11 of the Criminal Code in the Committee Comments to those sections:

“[Cjriminal concern for incest should be limited generally to situations involving either (1) abuse of family authority; or (2) the possibility of biological risk of genetically defective offspring.” (S.H.A., ch. 38, § 11 — 10, Committee Comments at 437 (1972).)

Also, the Committee Comments clearly indicate cultural traditions are a basis for the prohibitions against incestuous conduct. (S.H.A., ch. 38, § 11 — 11, Committee Comments at 445 (1972).)

Under the statutes involved here, a male parent may be subjected to a greater penalty than a female parent, although both are guilty of the same conduct, i.e., sexual relations with a child of the opposite sex of that parent. We do not believe this distinction will withstand the required “strict judicial scrutiny.” Abuse of family authority is a very real risk, regardless of which parent is involved. Biological risk is present in either situation. The strong cultural and legal tradition against incest is not sufficient to uphold the distinction made in our statute in light of the strong constitutional mandate of equality of treatment between the sexes, particularly the self-executing provisions of section 18, article I, in the Illinois Constitution. It should be noted that neither of the provisions dealing with incestuous conduct require any showing of force on the part of the parent. Accordingly, we hold that penalty provision of section 11 — 10 violates section 18 of article I of the Illinois Constitution of 1970.

It does not follow, however, that defendant’s conviction must be reversed. In Phelps v. Bing, 58 Ill.2d 32, 316 N.E.2d 775, the court relied ¡upon Ellis and section 18 of the Bill of Rights to invalidate a distinction contained in the Marriage Act concerning the ages of males and females being able to marry without consent of a parent or legal guardian. (Ill. 'Rev. Stat. 1973, ch. 89, §§ 3,6.) It held the higher age limitations for males to be invalid and applied the lesser age limits contained in the statutes to both males and females. We believe the result reached in .Phelps requires us to apply the penalty provision of section 11 — 11 to section 11 — 10. Consequently, we can affirm a conviction for aggravated jncest.as a Class 3 felony. This result seems to us to give meaning to the self-executing provisions of section 18 precluding discrimination because of sex and apply the lesser penalty provision applicable to incest insofar as it relates to aggravated incest. See Ellis; Phelps.

The judgment of conviction is affirmed. The sentence is vacated and this cause is remanded to the circuit court of Logan County with instructions that the defendant be resentenced for a Class 3' felony.

Conviction affirmed: sentence vacated:, cause remanded with directions.

SIMKINS, P. J., concurs.