Nos. 2--01--0522 & 2--01--0523 cons.

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Lake County.

	)

	Plaintiff-Appellee,		)

	)	No. 00--CM--1199

v.	)		No. 00--CM--1199

	)

PATRICIA HILL,	)	Honorable

	)	Donald H. Geiger,

	Defendant-Appellant.	  )	Judge, Presiding.

_________________________________________________________________

THE PEOPLE OF THE STATE	  	  )	Appeal from the Circuit Court

OF ILLINOIS,				  )	of Lake County.

						  )

	Plaintiff-Appellee,	   	  )

						  )	No. 00--CM--775

v.						  )	No. 00--CM--775

						  )

NANCY PARIS,				  )	Honorable

						  )	Donald H. Geiger,

	Defendant-Appellant.	  )	Judge, Presiding.

_________________________________________________________________

	JUSTICE CALLUM delivered the opinion of the court:

	Following a jury trial, defendant Patricia Hill was convicted of soliciting for a prostitute (720 ILCS 5/11--15(a)(1), (a)(3)

(West 2000)), and codefendant Nancy Paris was convicted of

prostitution (720 ILCS 5/11--14(a) (West 2000)).  Each defendant

was sentenced to one year of conditional discharge.  The defendants

appealed, and we consolidated the appeals.  The defendants argue

that section 11--14(a) of the Criminal Code of 1961 (the Code) (720

ILCS 5/11--14(a) (West 2000)), which defines prostitution, is

unconstitutionally overbroad and vague.  We affirm.

I. FACTS

	Section 11--14(a) states:

		"Any person who performs, offers or agrees to perform any

act of sexual penetration as defined in Section 12--12 of this

Code for any money, *** or any touching or fondling of the sex organs of one person by another person, for any money, *** for the purpose of sexual arousal or gratification commits an act

of prostitution."  (Emphasis added.)  720 ILCS 5/11--14(a)

(West 2000).

	Paris was charged with prostitution in that, for money and for

the purpose of sexual arousal, she knowingly used her hand and

buttocks to touch George Manis's penis.  Hill was charged with

soliciting Manis and directing him to a place for the purpose of

prostitution.  See 720 ILCS 5/11--15(a)(1), (a)(3) (West 2000).

	The defendants moved to declare section 11--14(a)

unconstitutional, arguing that it infringed on constitutionally

protected expression.  They further argued that the statute was

vague for failing to define "sex organs" and for failing to specify

whether it prohibited "any touching or fondling" through clothing. 

The trial court denied the motion.

	We summarize only the evidence that is relevant to our

analysis.  Manis, a detective for the Lake County sheriff's

department, testified as follows.  On January 12, 2000, he

performed an undercover investigation of a nightclub called Baby

Dolls.  Wearing a naval uniform, Manis entered the club, where

various women were dancing in various stages of undress.  Paris

approached Manis and offered him a "fantasy dance."  Manis accepted, walked to a booth, and paid $25 to a man who directed him

to a chair.

	After Manis was seated, Paris sat on his lap and began

dancing, arousing him by rubbing her buttocks against his penis. 

The dance lasted through two songs.  Manis was then approached by

Hill, who explained that he could purchase a "sensual massage" from

Paris.  Manis paid $300 to Hill, who directed him to another booth. 

Paris sat next to Manis and put her legs across his.  As music

played, Paris unbuttoned Manis's shirt and rubbed his chest.  She

then used her right hand to rub his penis, arousing him.  She

resumed dancing on his lap, at one point "cupping" his penis and

testicles in both hands.  After about 30 minutes, Hill asked Manis

whether he wanted to pay for additional time.  Manis declined and

left the club.

	On cross-examination, Manis testified that his pants were

never opened or removed.  Paris never made "skin to skin" contact

with his penis or testicles.

	The defendants were convicted and sentenced, and they

appealed.

II. STANDARD OF REVIEW

	A statute is presumed constitutional.  If reasonably possible,

we must give the statute a construction that maintains its

validity.  Also, we must resolve any doubt in favor of the statute. 

Our review is de novo.  People v. Jamesson, 329 Ill. App. 3d 446, 452 (2002).

III. OVERBREADTH	

	"The doctrine of overbreadth is designed to protect first

amendment freedom of expression from laws written so broadly that

the fear of punishment might discourage people from taking

advantage of the freedom."  People v. Bailey, 167 Ill. 2d 210, 226 (1995).  A statute regulating conduct is overbroad if it (1)

criminalizes a substantial amount of protected behavior, relative

to the law's plainly legitimate sweep; and (2) is not susceptible

to a limiting construction that avoids constitutional problems.

Jamesson, 329 Ill. App. 3d at 453.  Thus, in addressing a claim of overbreadth, the first task is to determine whether the statute

inhibits conduct protected by the first amendment.  Bailey, 167 Ill. 2d at 226.

	Here, the defendants argue that section 11--14(a) inhibits

"the freedom of speech as expressed through erotic dancing."  We

observe that erotic dancing is expressive conduct protected by the

first amendment.  Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 115 L. Ed. 2d 504, 511, 111 S. Ct. 2456, 2460 (1991).  However, as

the defendants seem to acknowledge, section 11--14(a) does not

inhibit erotic dancing per se.  Rather, the statute inhibits erotic dancing only when it involves specified physical contact between

the dancer and an observer.  In our view, erotic dancing, when it

involves such contact, is not protected by the first amendment.

	It appears that neither the United States Supreme Court nor

any federal or state court in Illinois has squarely addressed

whether the constitution protects erotic dancing that involves

physical contact with an observer.  The defendants rely on two

regional cases that provide little help.  In Miller v. Civil City of South Bend, 904 F.2d 1081 (7th Cir. 1990), rev'd on other grounds sub nom. Barnes, 501 U.S. at 565, 115 L. Ed. 2d at 510, 111 S. Ct. at 2460, the United States Court of Appeals for the Seventh

Circuit held that erotic dancing is constitutionally protected

because, like more conventional forms of dancing, erotic dancing

involves " 'moving the body in a rhythmical way, usually to music,

to express an emotion or idea.' "  Miller, 904 F.2d at 1085, quoting 16 The New Encyclopedia Britannica 935 (1989).  A

dissenting judge wrote that "on the majority's view 'lap dancing,'

a form of fondling, also might be protected speech, because it too

*** involves 'moving the body in a rhythmical way, usually to

music.' "  Miller, 904 F.2d at 1126-27 (Easterbrook, J., dissenting).  The majority, however, did not resolve that question.

	Similarly, in XLP Corp. v. County of Lake, 317 Ill. App. 3d 881, 885 (2000), this court determined that "the type of

nonobscene, sexually explicit expression that takes place at

plaintiffs' adult cabarets and adult bookstores is subject to first

amendment protection."  However, though we noted that the

plaintiffs' establishments featured "nude dancing" (XLP Corp., 317 Ill. App. 3d at 882), we made no mention of physical contact with

observers.

	Nevertheless, in our national jurisprudence, this issue is not

at all new.  In Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995), the plaintiff challenged as unconstitutionally

overbroad an ordinance prohibiting touching between a nude dancer

and a customer. In rejecting that argument, the United States Court

of Appeals for the Fifth Circuit ruled:

	"Barnes [citation] held that nude dancing itself 'is expressive conduct within the outer perimeters of the First

Amendment.'  It does not inevitably follow, however, that

touching between a nude performer and a customer is protected

expression.

		*** [I]ntentional contact between a nude dancer and a bar

patron is conduct beyond the expressive scope of the dancing

itself.  The conduct at that point has overwhelmed any

expressive strains it may contain.  That the physical contact

occurs while in the course of protected activity does not

bring it within the scope of the First Amendment."  (Emphasis

in original.)  Hang On, Inc., 65 F.3d at 1253, quoting Barnes, 501 U.S. at 566, 115 L. Ed. 2d at 511, 111 S. Ct. at 2460.

	Hang On, Inc. has been followed by reviewing courts in several states.  See Tily B., Inc. v. City of Newport Beach, 69 Cal. App. 4th 1, 22, 81 Cal. Rptr. 2d 6, 20 (1998) (upholding ordinance prohibiting physical contact between dancers and patrons); State v. Bouye, 325 S.C. 260, 264 & n.2, 484 S.E.2d 461, 463 & n.2 (1997) (lap dancing and similar conduct, for which defendants were

convicted of "lewd and lascivious" behavior, is not

constitutionally protected); American Show Bar Series, Inc. v. Sullivan County, 30 S.W.3d 324, 338 (Tenn. Ct. App. 2000) (upholding statute prohibiting physical contact between dancers and

patrons); DCR, Inc. v. Pierce County, 92 Wash. App. 660, 672 & n.8, 964 P.2d 380, 387 & n.8 (1998) (upholding ordinance prohibiting

"table dancing" and associated physical contact between dancers and patrons).  We have found no case that has reached a contrary

result.

	In accordance with this weight of authority, we follow Hang On, Inc.  A mere erotic dance is constitutionally protected, but section 11--14(a) does not inhibit such conduct.  Rather, an erotic

dance may fall within the scope of the statute only when it

involves specified physical contact between the dancer and an

observer.  When the dancer makes such contact, as Paris did with

Manis, he or she is not engaged in a protected activity.  Thus,

section 11--14(a) does not inhibit the exercise of rights protected

by the first amendment, and we need not inquire further into the

defendants' claim of overbreadth.

IV. VAGUENESS

	Under the vagueness doctrine, a criminal statute must meet two

requirements.  First, it must provide a person of ordinary

intelligence a reasonable opportunity to distinguish between lawful

and unlawful conduct.  Second, it must adequately define the

offense to prevent arbitrary and discriminatory enforcement. 

People v. Maness, 191 Ill. 2d 478, 483-84 (2000).  In determining whether a statute is vague, we must assume that, absent a contrary

legislative intent, the statute's words have their ordinary and

popularly understood meanings.  In addition to those words, we must

consider the legislative objective and the evil that the statute is

designed to remedy.  People v. Fabing, 143 Ill. 2d 48, 54 (1991).

A. "Sex Organs"

	The defendants argue that section 11--14(a) is impermissibly

vague for failing to define "sex organs."  That assertion does not detain us long.  "To prevail on a vagueness challenge to a statute

that does not implicate first amendment concerns, a party must

demonstrate that the statute [is] vague as applied to the conduct

for which the party [was] prosecuted."  Bailey, 167 Ill. 2d at 228.  Here, the defendants admit that, though the phrase "sex organs" is

not defined, "one would presume that the phrase would encompass the

human reproductive organs (i.e. penis and vagina)."  Thus, because

these prosecutions arose from Paris's alleged touching of Manis's

penis, the defendants concede that the phrase "sex organs" is not

vague as applied to their conduct.  They cannot complain that the

statute is vague as applied to the touching of something else, and

we do not consider that argument.

B. "Any Touching or Fondling"

	Next, the defendants argue that section 11--14(a) is vague as

applied to their conduct because it does not specify that it

prohibits "any touching or fondling" through clothing.  It appears that no court in Illinois has addressed this attack, but courts in

other states have addressed similar claims.

	The defendants rely on a Missouri case, State v. Burgess, 669 S.W.2d 637 (Mo. Ct. App. 1984).1  There, the defendant performed a table dance in which she rubbed her genital area, which was scantily clad, across a patron's face.  The defendant was convicted

of prostitution in that she performed for money " 'any touching,

manual or otherwise, of the anus or genitals of one person by

another, done for the purpose of arousing or gratifying sexual

desire of either party.' "  Burgess, 669 S.W.2d at 639, quoting Mo. Rev. Stat. §567.010(4)(c) (1969).  The Missouri Court of Appeals

determined that the defendant had not violated the statute.  The

court explained:

		"The state points to the terms 'any touching manual or

otherwise' as supporting a conclusion that 'skin to skin'

contact is not required.  We have no quarrel with that

conclusion.  The language is sufficiently broad to encompass

touchings made with other than the bare skin of the person

touching ***.  But the question before us is not the means to

effectuate the touching, but rather what must be touched. ***

That which is touched must be the 'anus or genitals' of a

person.  That language does not on its face include the

clothing covering the genitals or anus. *** At the most, the

language is ambiguous as to whether [touching through

clothing] is condemned."  Burgess, 669 S.W.2d at 639.

	The court went on to note that, in defining crimes of sexual

abuse, the legislature had explicitly prohibited " 'any touching of

the genitals or anus of any person, *** or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.' "  (Emphasis in original.)  Burgess, 669 S.W.2d at 640, quoting Mo. Rev. Stat. §566.010(3) (1978).  The

court ruled:

	"It is evident that where the General Assembly desired to

provide that a touching through clothing was prohibited, it

expressly so stated.  It did not do so in [the definition of

prostitution], and we must conclude it did not intend for such

a touching to constitute prostitution."  Burgess, 669 S.W.2d at 640.

	The dissenting judge wrote that "[t]he manifest purpose and

intent of the prostitution statute is to outlaw the

commercialization of the arousal or gratification of sexual

desire."  Burgess, 669 S.W.2d at 640-41 (Gaertner, P.J., dissenting).  The dissent went on to state:

		"I see nothing intrinsically ambiguous in the phrase 'any

touching, manual or otherwise' when read in the context of a

statute proscribing a commercial transaction undertaken to

fulfill a particular purpose.  Where the touching is performed

for the purpose of arousal or gratification of sexual desire

***, to read into the words 'any touching' a distinction

between direct or indirect conduct is *** an unnecessary and

uncalled for complication of plain, ordinary language." 

Burgess, 669 S.W.2d at 641 (Gaertner, P.J., dissenting).

	In responding to the majority's examination of sexual abuse

statutes, the dissent noted:

	"Only by first observing that other sections of the Criminal

Code use different language can limits and qualifications be

imposed upon the plain, ordinary meaning of simple words such

as 'any' ***. *** But to do so where there is no intrinsic

ambiguity is to use a rule of statutory construction intended to resolve ambiguities as a means of begetting an ambiguity

which does not exist. *** Since the language of [the

prostitution statute], given its plain, ordinary meaning, is

intrinsically clear and unambiguous, I would hold we are

precluded from comparing it to other legislative enactments." 

Burgess, 669 S.W.2d at 641 (Gaertner, P.J., dissenting).

	The dissent's view was shared by the majority in an Ohio case,

Athens County State of Ohio v. Young, No. 96--CA--1780 (Ohio Ct. App. August 15, 1997).2  There, the defendant touched a woman's breasts through her shirt and was convicted of gross sexual

imposition, which included "any touching of an erogenous zone of

another *** for the purpose of sexually arousing or gratifying

either person."  Ohio Rev. Code Ann. §2907.01(B) (West 1996).  The

defendant argued that the statute did not prohibit touching through

clothing.  The Court of Appeals of Ohio determined that, because a

zone could be erogenous when clothed, the statute "should be

interpreted to include touching of erogenous zones covered by

clothing."  Young, slip op. at ___.

	We adopt the reasoning of the Young majority and the Burgess dissent.  Section 11--14(a) prohibits "any touching or fondling of

the sex organs of one person by another person, for any money, *** for the purpose of sexual arousal or gratification."  720 ILCS

5/11--14(a) (West 2000).  The ordinary and popularly understood

meaning of "any" is "one, no matter what one."  Webster's Third New

International Dictionary 97 (1993).  Thus, section 11--14(a)

unambiguously prohibits "any touching," no matter whether that

touching is direct or indirect, on skin or through clothing.  To

read "any touching" to encompass only one kind of touching, rather

than another, we would need to deviate from the statute's plain

language and read into it a limitation that the legislature did not

express.  Such a reading would violate a basic rule of statutory

construction.  See People v. Woodard, 175 Ill. 2d 435, 443 (1997).

	Our conclusion is buttressed by the legislature's objective

and the evil that it sought to remedy.  Clearly, the legislature

sought to prohibit any commercial transaction in which one person

stimulates another person's sex organs for the purpose of sexual

arousal.  As Manis's testimony confirmed, a sex organ need not be

exposed to be stimulated.  Thus, to read section 11--14(a) to

permit stimulation through clothing would defeat the statute's

purpose.  The legislature sought to regulate the stimulation, not the dress code of the person stimulated.

	Again relying on the majority in Burgess, the defendants cite section 12--12(e) of the Code (720 ILCS 5/12--12(e) (West 2000)),

which defines "sexual conduct" for the purposes of sections 12--13

through 12--18 of the Code (720 ILCS 5/12--13 through 12--18 (West

2000)), which in turn define crimes of sexual abuse.  Section 12--

12(e) states:

		" 'Sexual conduct' means any intentional or knowing

touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, *** for the purpose of

sexual gratification or arousal of the victim or the accused." 

(Emphasis added.)  720 ILCS 5/12--12(e) (West 2000).

The defendants contend that section 11--14(a)'s failure to

similarly specify that it prohibits touching or fondling "either

directly or through clothing" renders it impermissibly vague on

that point.

	Again, however, we follow the Burgess dissent.  Section 12-- 12(e) may be more explicit, but that does not render section 11--

14(a) unconstitutionally vague.  See City of Chicago v. Powell, 315 Ill. App. 3d 1136, 1146 (2000).  As we explained, section 11--14(a)

unambiguously prohibits every kind of touching; it is not defective

for failing to list every kind of touching.  Indeed, had the legislature specifically prohibited certain forms of touching, the

statute may well have failed of its obvious purpose, to prohibit

all forms of touching.  See People v. $8,450 United States Currency, 276 Ill. App. 3d 952, 956 (1995) (under maxim of inclusio unius est exclusio alterius, the mention of one implies the exclusion of another).

	If section 11--14(a) was ambiguous, we could look to section

12--12(e) to clarify it.  However, the defendants cannot invoke

section 12--12(e) to create the ambiguity that they attack. 

Because section 11--14(a) is clear, we have no power to resort to

external constructive aids.  See Woodard, 175 Ill. 2d at 443.

	For the same reason, we cannot consider the defendants'

contention that the vagueness of section 11--14(a) is demonstrated

by its legislative history.  The purpose of legislative history is

to resolve ambiguities, not to create them.  On its face, section

11--14(a) is not vague, and our inquiry ends.

	We conclude that, in prohibiting "any touching or fondling,"

section 11--14(a) was specific enough to inform the defendants that

touching through clothing was prohibited, and to avoid the risk of

arbitrary and discriminatory enforcement.  Thus, on this basis, the

statute is not unconstitutional.

V. CONCLUSION

	The judgments of the circuit court of Lake County are

affirmed.

	Affirmed.

	McLAREN and BOWMAN, JJ., concur.