Docket No. 86463–Agenda 8–November 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 

								KATHY MANESS, Appellee.

Opinion filed June 1865, 2000.

	JUSTICE BILANDIC delivered the opinion of the court:

	This case involves the constitutionality of section 5.1 of the

Wrongs to Children Act (720 ILCS 150/5.1 (West 1992)). We

hold that section 5.1 is unconstitutionally vague.

STATUTE

	Section 5.1 of the Wrongs to Children Act (Act) (720 ILCS

150/1 et seq. (West 1992)) prohibits the offense of “permitting the sexual abuse of a child.” For purposes of this case, section 5.1

provides:

			“A. A parent or step-parent who knowingly allows or

permits an act of criminal sexual abuse or criminal sexual

assault as defined in Section 12–13, 12–14, 12–15 or

12–16 of the ‘Criminal Code of 1961,’ [720 ILCS

5/12–13, 12–14, 12–15, 12–16 (West 1992)], upon his or

her child and fails to take reasonable steps to prevent its

commission or future occurrences of such acts commits

the offense of permitting the sexual abuse of a child. For

purposes of this Section, ‘child’ means a minor under the

age of 17 years.

			B. Any person convicted of permitting the sexual abuse

of a child shall be guilty of a Class A misdemeanor.” 720

ILCS 150/5.1 (West 1992).

Relevant to the facts of this case is the underlying provision of the

criminal sexual abuse statute, section 12–15 of the Criminal Code

of 1961, which provides that “[t]he 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 1998). Criminal

sexual abuse is a Class A misdemeanor. 720 ILCS 5/12–15(d)

(West 1998).

	In light of the different versions of section 5.1 that have been

in effect, we must as a preliminary matter clarify our reasons for

quoting the aforementioned version of the statute. The permitting

sexual abuse of a child statute, section 5.1, was amended by Public

Act 88–680 to include “legal guardian[ ] or other person having

custody of a child” to the list of those subject to the statute, and to

add a provision to include within its scope those designated who

“knowingly permit[ ], induce[ ], promote[ ], or arrange[ ] for the

child to engage in prostitution as defined in Section 11–14 of the

Criminal Code of 1961 [720 ILCS 5/11–14 (West 1998)].” See

Pub. Act 88–680, art. 50, §50–10, eff. January 1, 1995. Public Act

88–680 also elevated the offense of permitting sexual abuse of a

child from a Class A misdemeanor to a Class 1 felony. Pub. Act

88–680, art. 50, §50–10, eff. January 1, 1995. Public Act 88–680,

however, is void ab initio because it was enacted in violation of the single subject rule of the Illinois Constitution (Ill. Const. 1970, art.

IV, §8(d)). People v. Cervantes, 189 Ill. 2d 80 (1999).

	Section 5.1 was also amended by Public Act 89–428 to add

the offense of predatory criminal sexual assault of a child (720

ILCS 5/12–14.1 (West 1998)) to the list of underlying offenses.

See Pub. Act 89–428, art. 2, §265, eff. December 13, 1995. Public

Act 89–428, however, is void ab initio because it too was enacted in violation of the single subject rule of the Illinois Constitution.

Johnson v. Edgar, 176 Ill. 2d 499 (1997). This amendment was later reenacted in Public Act 89–462. See Pub. Act 89–462, art. 2,

§265, eff. May 29, 1996. This amendment is not relevant for

purposes of this case. Section 5.1, as set forth above, reflects the

version of this statute that is applicable to this case.

FACTS

	On November 19, 1997, defendant, Kathy Maness, was

charged in the circuit court of Randolph County with the offense

of permitting the sexual abuse of a child. See 720 ILCS 150/5.1

(West 1992). The charging instrument alleged that defendant, the

mother of Lynlee Jo Otten, a minor under the age of 17 years,

knowingly allowed or permitted Leonard A. Owens, Jr. to commit

an act of criminal sexual abuse upon Lynlee, “in that Leonard A.

Owens, Jr. committed an act of sexual penetration with Lynlee Jo Otten, who was at least 13 years of age, but under 17 years of age

when the act was committed, in that Leonard A. Owens, Jr. placed

his penis in the vagina of [L.O.]Lynlee Jo Otten, and [L.A.O.]Loeeonard A. Owens,

Jr. was less than five years older than [L.O.]Leynlee Jo Otten, and the

defendant did fail to take reasonable steps to prevent its

commission.” Defendant was alleged to have committed this

offense in Randolph County, Illinois, where she and L.O.Lynlee lived,

between the months of January and August of 1997.

	Ly.O.nlee Otten was born on October 28, 1983. L.A.O.eonard Owens

was born on February 25, 1979. They started dating each other in

August 1996, and began having sexual intercourse in December

1996. Between December 1996, and approximately April 1997,

when the pair terminated their relationship, L.O. Lynlee and L.A.O.Leonard

had sexual intercourse 15 to 20 times.

	At some point after the sexual relationship began, L.O.Lynlee told

defendant, her mother, that she and L.A.O.Leonard were having sexual

intercourse. Defendant confronted both L.O.Lyhlenlee and L.A.O.Leonard about

the sexual relationship, expressed her disapproval, and discussed

the implications of sexual intercourse.

	Defendant obtained birth control pills for L.O.Lynlee and allowed

L.A.O.Leonard on numerous occasions to spend the night at the family

home. Defendant was aware that, on some of these occasions,

L.A.O.Leonard slept in L.O.ynlee’s bedroom and had sexual intercourse with

L.OLynlee. Defendant was also aware that, during the relevant time

period, L.A.O.eonard was 17 years old, and L.O.ynlee was 13 years old.

The record shows that L.A.O.eonard pled guilty to criminal sexual abuse

in connection with the facts of this case. See 720 ILCS 5/12–15

(West 1998).

	According to an investigative report from the Department of

Children and Family Services (DCFS), defendant stated that she

did not know what steps to take to prevent the sexual relationship

between L.O. ynlee and L.A.OLeonard. Defendant further stated that

Leonard “[L.A.O.] was a nice boy and was better than most of the younger

boys [L.O.]Lynlee was hanging around with,” and that “it was safer for

[L.O.]Lynlee to be having sex with [L.A.O.eonard] at home than [with]

somebody else out of the home environment.” The DCFS report

discloses that defendant “feels she has some control of the

daughter’s sexual activities if it occurs in the home.”

	Defendant filed a motion to dismiss the charge, arguing that

section 5.1 is unconstitutionally vague as to what constitutes

“reasonable steps” to prevent the commission of future acts of

sexual abuse. According to defendant, the statute exposes any

parent to prosecution if a child “becomes pregnant, sires a child,

asks for birth control devices, or seeks any counsel from the

teenager’s parents regarding sexual activity.” Defendant also

argued that section 5.1 of the Act, both on its face and as applied

in this case, violates defendant’s fundamental liberty right to raise

her child free from undue state influence as guaranteed by the

fourteenth amendment to the United States Constitution and article

I, section 2, of the Illinois Constitution of 1970.

	Following a hearing, the circuit court, in a verbal order,

granted defendant’s motion to dismiss the charge. The transcript

of the order reveals that the circuit court found that section 5.1

“may implicate first amendment concerns of the defendant or of a

parent or guardian to effectively address the problem of underage

teenage sex in their particular family situation.” The circuit court

also held that section 5.1 is unconstitutionally vague as to what

constitutes “reasonable steps” to prevent the commission of future

acts of sexual abuse.

	The State appealed directly to this court. Because the circuit

court declared section 5.1 of the Act unconstitutional on its face,

this court has jurisdiction over this appeal pursuant to Supreme

Court Rule 603 (134 Ill. 2d R. 603).

ANALYSIS

	We review de novo a circuit court’s holding with respect to the constitutionality of a statute. Russell v. Department of Natural Resources, 183 Ill. 2d 434, 441 (1998). Statutes carry a strong presumption of constitutionality, and the party challenging the

constitutionality of a statute bears the burden of rebutting this

presumption. Russell, 183 Ill. 2d at 441. Here, that party is defendant, who for the reasons set forth below has met this burden.

	A cornerstone of our jurisprudence is that no person shall be

deprived of life, liberty, or property without due process of law.

U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §2. Due process of law requires that the proscriptions of a criminal statute

be clearly defined. City of Chicago v. Morales, 177 Ill. 2d 440, 448 (1997), aff’d, 527 U.S. 41, 144 L. Ed. 2d 67, 119 S. Ct. 1849 (1999). To satisfy the vagueness doctrine, a criminal statute must

meet two requirements. First, the statute must provide a person of

ordinary intelligence a reasonable opportunity to distinguish

between lawful and unlawful conduct so that he or she may act

accordingly. Russell, 183 Ill. 2d at 442; Morales, 177 Ill. 2d at 449. “ ‘No one may be required at peril of life, liberty or property

to speculate as to the meaning of penal statutes. All are entitled to

be informed as to what the State commands or forbids.’ ” Morales, 177 Ill. 2d at 450, quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 890, 59 S. Ct. 618, 619 (1939). Thus, a statute

is unconstitutionally vague “if its terms are so indefinite that

‘persons of common intelligence must necessarily guess at its

meaning and differ as to its application.’ ” Fagiano v. Police Board, 98 Ill. 2d 277, 282 (1983), quoting Polyvend, Inc. v. Puckorius, 77 Ill. 2d 287, 299–300 (1979).

	Second, the statute must adequately define the offense in order

to prevent arbitrary and discriminatory enforcement. Russell, 183 Ill. 2d at 442; Morales, 177 Ill. 2d at 449. The statute must provide explicit standards to regulate the discretion of governmental

authorities who apply the law. Russell, 183 Ill. 2d at 442; Morales, 177 Ill. 2d at 456. If the legislature fails to provide minimal

guidelines to govern law enforcement, a criminal law “may permit

‘a standardless sweep [that] allows policemen, prosecutors, and

juries to pursue their personal predilections.’ ” Kolender v. Lawson, 461 U.S. 352, 358, 75 L. Ed. 2d 903, 909, 103 S. Ct. 1855, 1858 (1983), quoting Smith v. Goguen, 415 U.S. 566, 575, 39 L. Ed. 2d 605, 613, 94 S. Ct. 1242, 1248 (1974).

	Section 5.1 does not satisfy these requirements. To be charged

under section 5.1, a parent must knowingly allow or permit an

enumerated act of criminal sexual abuse or sexual assault to be

committed upon his or her child, and fail to take “reasonable steps”

to prevent its commission or future occurrences. 720 ILCS 150/5.1

(West 1992). It is unclear what the “reasonable steps” are that a

parent must take in order to comply with the statute. The facts of

this case demonstrate this uncertainty. As the record reveals, defendant’s 13-year-old daughter confided in defendant that she

was having sexual intercourse with her 17-year-old boyfriend. At

this point, defendant, as a parent, took steps. She confronted her

daughter and her daughter’s boyfriend about the sexual

relationship, expressed her disapproval, and discussed the

implications of sexual intercourse. The statute does not set forth

what more the statute commands.

	We recognize that defendant obtained birth control pills for

her daughter and allowed her daughter’s boyfriend to spend the

night at the family home. Defendant was aware that at times her

daughter and her daughter’s boyfriend slept together in her

daughter’s bedroom and had sexual intercourse with each other.

Defendant, however, stated that she did not know what steps to

take to prevent the sexual relationship between her daughter and

her daughter’s boyfriend, and that she felt she had more control

over her daughter’s sexual activities if they occurred in the home.

We are in no position to determine whether defendant’s actions

constituted “reasonable steps” under the statute. We find that

section 5.1 leaves a parent to speculate as to what the statute

commands.

	Furthermore, section 5.1 risks arbitrary and discriminatory

enforcement. As we have discussed, the statute does not set forth

standards to regulate what constitute “reasonable steps.” There are

no guidelines for authorities to follow in evaluating what

“reasonable steps” are from case to case. This is certainly not a

decision that should be left to the “personal predilections” of the

governmental authorities who must apply section 5.1. Section 5.1

enumerates several underlying offenses. Regardless of the

underlying offense, it is unclear what a parent must do to take

“reasonable steps” under the statute, and authorities remain

without standards to guide their enforcement of section 5.1.

	We note that, in reviewing whether a statute is vague, a court

may also consider the legislative purpose and the evil that the

statute is designed to remedy. People v. R.G., 131 Ill. 2d 328, 361 (1989). The legislative history is silent as to the purposes

underlying the need for section 5.1. The legislative debates

concerning the bill that created the offense of permitting the sexual

abuse of a child contain only general references to the name of the offense. We therefore have no information to help define what the

statute commands. A person of ordinary intelligence is left to guess

at its meaning and disagree as to its application. Due process of

law requires that the proscriptions of a criminal statute be clearly

defined. Section 5.1 fails to satisfy this requirement.

	The dissent states that the “majority has not cited any

authority for the proposition that a ‘reasonableness’ standard

renders a criminal statute unconstitutionally vague, and I see no

basis for reaching that conclusion with respect to section 5.1.” Slip

op. at 10 (Harrison, C.J., dissenting, joined by Miller and

McMorrow, JJ.). The dissent then proceeds to discuss several

areas of law where a reasonableness standard is used. We, of

course, do not suggest that a reasonableness standard renders a

statute unconstitutionally vague. Rather, we hold that the statute

at issue in this case, section 5.1, is unconstitutionally vague

because it is not clear what the “reasonable steps” are that a parent

must take in order to avoid criminal prosecution thereunder.

	The dissent further contends that there “are numerous

instances in which application of the statute would be proper,” and

then purports to give an example. Slip op. at 10 (Harrison, C.J.,

dissenting, joined by Miller and McMorrow, JJ.). The dissent’s

reasoning is flawed. The legal test for whether a statute withstands

a vagueness challenge is well settled. To satisfy the vagueness

doctrine, a criminal statute must provide both fair warning of the

prohibited conduct and explicit guidelines for those who must

apply the law. See, e.g., Morales, 177 Ill. 2d at 449. Section 5.1 fails to meet this test. Section 5.1 requires a parent who knowingly

allows an enumerated act to be committed upon his or her child to

take “reasonable steps” to prevent the commission of the

enumerated act. However, it is not clear what the “reasonable

steps” are that a parent must take in order to comply with the

statute and avoid criminal prosecution. The dissent’s answer, that

“a mother who gave express permission to one of her adult male

friends to have sex with her 12-year-old daughter would clearly fall

within the statute’s prohibitions” (slip op. at 10 (Harrison, C.J.,

dissenting, joined by Miller and McMorrow, JJ.)), begs the

question of what a parent must in fact do in the first instance to

comply with section 5.1’s requirement of taking “reasonable steps” to prevent the enumerated act. The statute criminally punishes all

parents who knowingly permit an enumerated act to occur and fail

to take “reasonable steps” to prevent the act. Do “reasonable

steps” mean that the parent must call the police, ban the offender

from the home, send the child away, speak with the offender? The

point is that, regardless of the underlying conduct, section 5.1

leaves a parent to speculate as to what the statute commands.

	The dissent also concludes that defendant took “no steps” to

prevent the abuse. Slip op. at 11 (Harrison, C.J., dissenting, joined

by Miller and McMorrow, JJ.). The record reveals otherwise.

Defendant confronted her daughter and her daughter’s boyfriend

about the sexual relationship, expressed her disapproval, and

discussed the implications of sexual intercourse. What the dissent

really appears to be saying is that defendant did not do enough.

However, neither section 5.1, nor the dissent for that matter,

specifies what more defendant must have done to avoid criminal

prosecution.

CONCLUSION

	We hold that section 5.1 is unconstitutionally vague. We

therefore affirm the circuit court’s order dismissing the charge

against defendant. Consequently, we need not determine whether

section 5.1 unconstitutionally infringes upon defendant’s

fundamental right to raise her child. We also note that, because the

offense of permitting the sexual abuse of a child is no longer a

Class 1 felony (see People v. Cervantes, 189 Ill. 2d 80 (1999)), we need not address defendant’s argument raised in this court that

applying section 5.1 to her conduct violates the constitutional

prohibition against disproportionate penalties.

Affirmed.

	CHIEF JUSTICE HARRISON, dissenting:

	Section 5.1 of the Wrongs to Children Act (720 ILCS 150/5.1

(West 1992)) imposes on parents a duty to take “reasonable steps”

to prevent the commission or future occurrence of criminal sexual

abuse of their children. Although my colleagues find this standard problematic, I do not believe that it renders the statute

unconstitutionally vague. A penal statute comports with due

process so long as the statute’s prohibitions are sufficiently

definite, when measured by common understanding and practices,

to give a person of ordinary intelligence fair warning as to what

conduct is prohibited, and the statute marks boundaries sufficiently

distinct for judges and juries fairly to administer the law in

accordance with the intent of the legislature. People v. Hickman, 163 Ill. 2d 250, 256-57 (1994).

	Section 5.1 satisfies these requirements. While the statute does

not specifically enumerate what constitute “reasonable steps” to

prevent the commission or future occurrence of criminal sexual

abuse, it is not alone in this regard. A similar standard has been

employed successfully in many other areas of the law. For example,

section 1(D)(m) of the Adoption Act (750 ILCS 50/1(D)(m) (West

1998)) provides that where a child has been removed from a parent

by the State, the parent’s failure to make “reasonable efforts” to

correct the conditions that were the basis for removal of the child

is grounds for finding the parent unfit. As a matter of common law,

hospitals and physicians must take “reasonable steps” to avoid a

foreseeable tragedy in their facility. See Winger v. Franciscan Medical Center, 299 Ill. App. 3d 364, 375 (1998). Under the Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 1998)), law enforcement officials have a duty to promptly

undertake “all reasonable steps” to assist persons protected by the

Act. Calloway v. Kinkelaar, 168 Ill. 2d 312, 326 (1995). Tort law dictates that if an accident is reasonably foreseeable, a party is

charged with responsibility to take “reasonable steps” to avoid it.

See Cannon v. Commonwealth Edison Co., 250 Ill. App. 3d 379, 384-85 (1993).

	Whether a party has acted reasonably will necessarily depend

on the facts and circumstances of each particular case. What action

is reasonable under the circumstances is not always easy to assess.

Experience has shown, however, that when dealing with diverse

and unpredictable situations, a “reasonableness” standard is the

best measure for judging human conduct. Accordingly, the

“reasonable man” standard has become a fundamental part of our

jurisprudence. We constantly call upon citizens and law enforcement officials to follow and apply this standard. Again,

examples are easy to summon. “Reasonableness” plays a pivotal

role in assessing the legality of police stops. People v. Gonzalez, 184 Ill. 2d 402, 422-24 (1998). It is integral to the law of self-

defense (People v. Morgan, 187 Ill. 2d 500, 533 (1999)) and the law governing trade secrets (765 ILCS 1065/2(d) (West 1998);

Jackson v. Hammer, 274 Ill. App. 3d 59, 66-67 (1995)).

	The majority has not cited any authority for the proposition

that a “reasonableness” standard renders a criminal statute

unconstitutionally vague, and I see no basis for reaching that

conclusion with respect to section 5.1. Even if one could

hypothesize circumstances in which application of the statute

would be uncertain, that is not the test. A statute is

unconstitutionally vague on its face only if it is incapable of any

valid application (People v. Wawczak, 109 Ill. 2d 244, 249 (1985)), i.e., where “ ‘no set of circumstances exists under which the [statute] would be valid.’ ” In re C.E., 161 Ill. 2d 200, 211 (1994), quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987).

	Section 5.1 is not infirm under this standard. There are

numerous instances in which application of the statute would be

proper. For example, a mother who gave express permission to one

of her adult male friends to have sex with her 12-year-old daughter

would clearly fall within the statute’s prohibitions.

	Because there are valid applications for the statute and

because the law does not involve first amendment rights, the

determination as to whether the statute is constitutionally infirm

must be made in the factual context of this particular case. Russell v. Department of Natural Resources, 183 Ill. 2d 434, 442 (1998). Maness does not have standing to argue that the statute might be

vague as applied to someone else. See People v. Jihan, 127 Ill. 2d 379, 385 (1989). A defendant may be prosecuted under a statute

without violating her due process rights if her conduct clearly falls

within the statutory proscription even though the statute may be

vague as to other conduct. People v. Anderson, 148 Ill. 2d 15, 28 (1992).

	What Maness is alleged to have done in this case clearly falls

within the prohibitions of section 5.1 of the Wrongs to Children Act. Maness knowingly permitted Leonard Owens, Jr., a 17-year-

old boy, to repeatedly commit criminal sexual abuse of her 13-year-

old daughter. Although Maness confronted the couple about their

activities, counseled them and expressed her disapproval, the

record also shows that she facilitated the criminal sexual abuse by

allowing Owens to sleep with her daughter in her daughter’s

bedroom. When Owens had sex with Maness’ daughter, it was

usually in the bedroom and usually while Maness and her husband

were at home. Maness was aware of this sexual activity and took

no steps to stop it. Her view was that if her daughter was going to

have sex with Owens, it was safer if she did so at home where

Maness had some control.

	Maness’ contention that she was uncertain as to the law’s

application is unpersuasive. While persons of ordinary intelligence

may sometimes be left to speculate as to what constitute

“reasonable steps” to prevent the commission of criminal sexual

abuse, this is not one of those situations. Maness is not being

prosecuted because of how she counseled her daughter regarding

her sexuality or because she obtained birth control medication and

prophylactics for her daughter to use. Maness’ problem is that the

law in Illinois prohibits 17-year-olds from having sex with 13-year-

olds, and Maness repeatedly and expressly allowed a 17-year-old

to have sex with her daughter in her house. Any person of ordinary

intelligence would understand that such conduct constitutes a

failure to take “reasonable steps” to prevent criminal sexual abuse

within the meaning of the law.

	There is likewise no merit to Maness’ contention that the

statute is invalid because it unduly infringes on a parent’s right to

raise her child. Under the fourteenth amendment, parents have a

“fundamental liberty interest *** in the care, custody, and

management of their child[ren,]” with which the government may

not interfere unduly. Santosky v. Kramer, 455 U.S. 745, 753-54, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394-95 (1982). Parental

autonomy, however, is not absolute. See Lehman v. Stephens, 148 Ill. App. 3d 538, 547 (1986). In matters concerning child abuse and

neglect, a parent’s rights yield to the state’s interest in protecting

its children. American Federation of State, County & Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299, 319 (1996).

	The right to be a parent does not encompass the right to abuse

one’s child or to allow one’s child to be abused. If Maness had

knowingly allowed Owens to inject her daughter with heroin and

provided the couple with a place in her home where the drugs

could be injected, there would be no question that Maness could be

prosecuted for child endangerment (720 ILCS 5/12–21.6 (West

1998)) or worse, without offending the constitution. The result

should not be different because the abuse involves illegal sex rather

than illegal drugs.

	For the foregoing reasons, the judgment of the circuit court

should be reversed and the cause should be remanded for further

proceedings. I therefore dissent.

	JUSTICES MILLER and McMORROW join in this dissent.