## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

In re S.B

. , 2012 IL 112204

Caption in S upreme Court: In re S.B., a Minor (The People of the State of I llinois
, Appellant, v. S.B., Appellee ).

Docke t No. 112204

Filed October 4, 2012

Held ( Note : This syl l abus

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) A juvenile who ha s been f ound “not not guilty ” of a g g ravated cr iminal sexual abuse followinga statutory discharg e or “ innocenc e only” hear ing must re g ister as a sex offender , but may

petition to be removed from the r eg istry

as provided by

law.

Dec ision Under Review Ap p ea l from the Appellate Court for the Third District; heard in that
court on appea l from the Circuit Court of Peoria County
, the Hon. Chris L . Fr eder icksen, Judge, pr esiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l L isa Madig an, Attorney Gene ral, of Springf ield, and Kevin W. Lyons, S tate’s Attorney
, of Peoria (Michae l A. Scodro, Solicitor Gene ra l
, an d Michae l M. Glick and L eah M. Be ndik, A ssistant Attorne y s Gene ral, of Chicag o, and Patrick Delfino, Terr y A. Mertel and Gar

y F. Gnidovec, of the Offic e of the State’s At t o rn ey s Appellate Prosecutor, of Ottawa, of counsel), f

or the People.

Carrie B. Steve ns, of Gra nd J unction, Colorado, for a ppellee.

J ustices J USTI CE BURKE de livered the judgme nt of the cour t, with opinion.
Chief J ustice Kilbride and J ustices Fr eema n, Th o m as , Kar

meier, and Theis conc urre d in the judgme nt and opinion.
J ustice Ga

rman dissented, w ith opinion.

OP INION

¶ 1 At issue in this case is whether a j u v en i l e wh o h as b een found “not not guilty ” of
ag g ravated criminal sexual abuse following a discharg e h e a rin g p u r s u a nt to s e c ti o n 104-25(a ) of the C o d e o f C ri minal Procedur e of 1963 (725 I L CS 5/104-25(a) (West 2008)) must reg ister as a sex off

ender

. The appellate court conclude d that reg istration was not require d. 408 I ll. App. 3d 516. We hold that the juvenile is require d to r eg ister as a sex off ender
, but that he may

petition to be removed f

rom the sex offende r re g istry under the terms set forth in section 3-5 of the Sex Offe nder Reg istration Act (730 I L CS 150/ 3-5 (West 2008)).

¶ 2 Ba ckground ¶ 3 On J uly 7, 2006, the State filed a two-count juvenile petition in the circ uit court of Peoria County alleg ing that S.B., a minor, was delinqu en t

. C o u nt I alleg ed that in J une or J uly of 2005, S.B. place d his fing er in the vag ina of a g irl under the ag e of nine, there by committing
ag g ravated criminal sexual assault (720 I L CS 5/12-14(b) (i) (West 2004) ). Count I I alleg ed that S.B. touched the vag ina of the victim for the purpose of s ex u al ar o usal, there by committing ag g ravated cr iminal sex ual abuse (720 I L CS 5/ 12-16(c )(2) (i) (West 2004)). ¶ 4 The circ uit court order ed that S.B. be evaluated for his fi t n es s t o stand trial. Dr. Jane Velez examined S.B. under the fitness proce dures of the Code of Criminal Procedur e (Code) (725 I L CS 5/104-10 et seq. (West 2008)) and was the so l e witness to testify at his fitness hear ing. Velez s t ated that S.B., who was 14 y ear s old at the time of the incident, suffe red from mild mental reta

rdation and that he functioned like “a 7 o r 8-year -old boy .” Velez conclude d that, beca

use of his intellectual limit ations, S.B. would not be able to assist in his defe nse, and was there fore unfit to stand trial. Velez also explained to the court that S.B. was

-2-“re ally not a pedophile” and that “his main dif fi cu lty ” was his cognitive limit ations. Acc ording to V elez, with f amily support and counseling , there was littl e risk of rec idivism on the par t of S.B. ¶ 5 At the conclusion of the fitness hearing, the circ uit court found that S

. B. wa s u n fi t to stand trial and there was no substantial likelihood he would attain fi t n es s wi thin one y ear

. See 725 I L CS 5/104-16(d) (West 2008)). As a result, the court set the matter for a discharg e hear ing pursuant to se ction 104-25(a ) of the Code (725 I L CS 5/ 104-25(a ) (West 2008)). A discharg e hearing “is an ‘innocence only ’ proceeding that results in a fina l adjudication of char g es only if the evidenc e fails to establish the defe ndant’s guilt beyond a rea sonable doubt (re sulting in the defe ndant’s acquittal) or the defe ndant is found not gu ilty by rea son of insanity

. I f the evidenc e is found to be sufficie nt to establish the defe ndant’s guilt, no conviction results. Instead, the defe ndant is f ound not not guilty (

People v. Lavold
, 262 I ll. App. 3d 984 (1994)) and may be held f or treatment. A criminal prose cution of the c harg es ag ainst the defendant does not take plac e unless or until the def endant is found f

it to stand trial.” (E mphasis in origina l.) People v . W aid , 221 I ll. 2d 464, 469-70 (2006). ¶ 6 At t h e discharg e hearing
, the vi ctim, M.J
., testified for the S tate. M.J
., who was se v en y ear s old on the date of the hearing and four y ear s old at the time of the incident, stated that S.B. was her neig hbor. On the day of the incident, M.J

. was playing in a cornf ield with S.B. and his brother when they found a ball. Acc ording to M.J
., S.B. came up with a g ame wher e one person thr ew t h e b al l
, the ot her two persons looked for it, and the person who did not find it had to “g et naked.” S.B. threw the ball, his brother found it, and as a result, M.J

. took off her clothes. Whil e M.J

. was standing naked, S.B. approa ched her, g ot on his knees, and touched he r “pr ivate par

t.” At some point, S.B.’s brother threw the ball a sec ond time, and S.B. failed to find it. S.B. undresse d and asked M.J

. to touch his penis. M.J

. t h en t o uched S.B.’s penis with her fi n ger. After g etting dresse d, S.B., his brother, and M.J

. left the cornf ield. ¶ 7 M.J

. did not tell anyone about what happene d in the cornf ield beca use she was afr aid she would g et in trouble. Approxim ately a y ear later, howeve r, M.J .’s g randmother lear ned about the incident fr om M.J .’s brother and conta cted the police

. ¶ 8 De t ec t i ve David Doubet from the Peoria County sheriff ’s depar tment testified abo u t statements M.J

. made to him during his investigation of the incident. See 725 I L CS 5/115-10 (West 2008) (allowing admission of out-of-c ourt statement by minor victim of sex off ense as exception to hear say

rule). D oubet essentially reiter ated M.J.’s testim ony

. ¶ 9 At the close of evidenc e, the State conce ded there was insufficient evidenc e to establish that S

. B. had penetr ated the victim’s vag ina. The circ uit court agree d and, acc ording ly
, enter ed a judgme nt of acquittal on count I . Wit h respe ct to count I I , the circ uit court found that M.J .’s t estimony was credible and that h er touching of S.B.’s penis at hi s reque st was sufficie nt to establish the element of sexual arousa l. The court there fore found that the State h a d p roven beyond a rea sonable doubt that S.B. committed ag g ravated criminal s e xu a l a b u s e

. Acc ording ly , the cour

t entere d a findingof no ac quittal or “not not guilty ” on count I I

. ¶ 10 For t h e n ex t 1 5 m o n t h s , S

. B. was evaluated on an outpatient basis by the I llinois Depa rtment of Hum an S er v i ces pursuant to section 104-25(d) (1) of the Code (725 I L CS

-3-5/104-25(d)( 1) (West 2008)). Reports g ener ated during this period describe the eff orts made
to restore S.B. to fitness by educating him about the leg al proce ss. The repor ts also uniformly
state that S.B. was not suffe ri n g from a mental illness and was not considere d a dang er to himself or others. ¶ 11 At the conclusion of the 15-month period, the circ uit court found that S.B. rema ined unfit
to stand trial. The State then moved to compel further fitness treatment for S.B. pursuant to section 104-25(g )(2) of the Co d e (725 I L CS 5/104-25(g )(2) (West 2008)). Under this provision, a court may order further treatment of a person if he is either subject to involuntary admission under the Mental Hea lth and Deve lopmental Disabilities Code (405 I L CS 5/1-100 et seq. (West 2008)) or “ constitutes a serious thre at to public safe ty .” The court de nied the State’s m otion, finding there was no evidenc e that S.B. wa s mentally ill or that he posed a threat to public safety

. ¶ 12 The State also moved to compel S.B.’s reg istration as a sex offe nder pursuant to se ction 2(A)( 1)(d) of the Sex Offe nder Reg istration Act (SORA) (730 I L CS 150/2(A) (1)( d) (West 2 008)). This provision define s a sex offe nder as “any person” who is charg ed wi t h a s ex offe nse who “is the subject of a finding not resulting in an acquittal” following a discharg e hear ing. On J anuar

y 27, 2009, the circ uit court g rante d the State’s motion and order ed S.B. to reg ister as a

sex offender . Def

endant a ppeale d. ¶ 13 On appea l, defe ndant did not contest his convicti o n b u t , i n s t ea d
, challeng ed only the circ uit court’s order requiring him to reg ister as a sex offe nder. Wit h one justice dissenting, the appe llate cour

t concluded that reg istration was not require d and re verse d the judg ment of the c ircuit court. 408 I ll. App. 3d 516. ¶ 14 In so holding, the appell at e court noted that the onl y ref ere nce to juveniles in SORA’s definitions of a sex offe nder is found in section 2(A)( 5) (730 I L CS 1 5 0 / 2 (A )( 5 ) (West 2008)), and that this provision ref ers only to juveniles who have been adjudicate d delinquent. Be cause S.B. was no t ad judicated delinquent but, instead, was found “not not guilty ” following a discharg e hear i n g, t he court conclude d that S.B. was not a sex offe nder as define d in SORA. ¶ 15 The appellate court further noted that section 3-5 of SORA (730 I L C S 1 5 0 / 3 -5 (W est 2008)) allows juveniles who have been adjudicate d delinquent to petition for termination of
reg istration under cer

tain conditions, but does not mention juveniles found “not not guilty .” Given this fac t, the court conclude d that it would be “absurd an d unjust” to apply section 2(A)( 1)( d ) t o j u veniles found “not not guilty ,” as the result would be “a nondelinquent juvenile having few er rig hts than a juvenile who was actua lly adjudicate d delinquent.” 408 I ll. App. 3d at 520. ¶ 16 We allowed the State’s petition for leave to appea l. I ll. S. Ct. R. 315 (ef f. Feb. 26, 2010).

¶ 17 Analy sis ¶ 18 Section 2 of SORA se ts forth the definitions of a sex offe nder and provides, in r eleva nt part: “(A ) As used in this Article, ‘ sex offender ’ mea ns any person who is:

-4-(1) char g ed pursuant to I llinois law, or any substantially simil ar fede ral, Uniform Code of Milit ary J ustice, sister state, or fore ign country law, with a sex offe nse set forth in subsection (B ) of this Section or the attempt to comm it an included sex offense , and:
* * * (d) is t h e s ubject of a finding not resulting in an acquittal at a hear ing conducte d pursuant to Section 104-25(a ) of the Code of Criminal Procedur e of 1963 for the alleg ed commission or attempted commission of such o f f e n se;

or * * * (5) adjudicate d a juvenile delinquent as th e r e s u lt o f committing or attempting
to commit an act which, if committed by an adult, wo u ld constitute any of the offe nses speci fied in item (B ), (C), or (C-5) of this Section *** .” 730 I L CS 150/2(A)( 1)(d) , (A)( 5) (West 2008). ¶ 19 As it did in the courts below, the State maintains that S.B. falls within the plain meaning of section 2(A)( 1)(d) beca use he was a person charg ed with a sex offe nse under I llinois law and was found “not not guilty ” following a discharg e hearing. Thus, acc ording to the State, S.B. is a sex offende r under SORA and is require d to reg ister. ¶ 20 S.B., in re s p o n s e, i n i tially contends that section 2(A)( 1)(d) is inapplicable in this case beca use “no specific statute” allows for discharg e hearings under the J uvenile Court Act of 1987 (705 I L CS 4 0 5 / 1-1 et seq. (West 2008)). Acc ording to S.B., beca use the discharg e hear ing that took place in this case was not authorized by statute, the circ uit court’s finding that S.B. was “not not guilty ” is void and cannot provide a basis for apply ing section 2(A)( 1)(d)

. ¶ 21 W h et h er d i s ch ar ge h ea ri n gs u n d er s ec t i o n 104-25(a ) are applicable in juvenile
proce eding s is a matter of fi rs t i m p re ssion in this court. The J uvenile Court Act does not contain its own provisions addre ssing a minor’s fitness or proce dures to follow in the event

a minor is found unfit to stand trial. Howeve r, section 5-101(3) of the J uvenile Court Act
states that, “[i] n all proce dures under this Article, minors shall have all the proce dural rig hts of adults in crimin al p ro ce ed ings, unless specific ally prec luded by laws that enhanc e the protec tion of such minors.” 7 05 I L CS 405/5-101(3) (West 2008). The fitness proce dures found in the Code of Criminal Proc edure
, including discharg e hearings pursuant to se ction 104-25(a ), exis t to safe guard the due proce ss rig hts of defe ndants. Acc ording ly
, we hold that section 104-25(a) is incorpora ted into the J uvenile Court Act and that th e ci rcuit court’s finding of “not not guilty ” in this case was not void. See In re T.D.W

. , 109 I ll. App. 3d 852, 854-55 (1982), overruled on other grounds by People v. Gentry
, 351 I ll. App. 3d 872 (2004) (holding that the fitness proce dures from the Code of Criminal Proc edure apply in juve nile
proce eding s). ¶ 22 S.B. further maintains, howeve r, that even if the discharg e hearing provision applies, the appellate court was never theless corr ect in holding that S.B. is not a sex offe nder within the meaning of SORA. Acc ording to S.B., b eca use section 2(A)( 5) ref

ere nces juveniles who have been adjudicate d delinquent, the Gene ral Assembly intended to exclude other juveniles

-5-from section 2(A)( 1)(d)

. In other words, S.B. contends that the only way for a juvenile to fall

und er SORA’s definitions of a sex offe nder is if the m inor is adjudicate d delinquent. Thi s argument cannot be rec onciled with the plain languag e of se ction 2(A)( 1)(d)

. ¶ 23 T o m ee t the definition of a sex offe nder under section 2(A)( 1)(d)
, a person m u s t b e char g ed pursuant to I llinois law with a sex offe nse set forth in s ub s ection (B ) of section 2 (which includes ag g ravated criminal sexual abuse) and must b e s ub j ect to a finding not resulting in an acquittal following a discharg e hearing under section 104-25(a) of the Code. S.B. mee ts these conditions and, there fore , is a sex offender as def ined by SORA. ¶ 24 The a

ppellate c ourt also found, howe ver, that defining juveniles found “not not guilty ” as sex offende rs would lead to “ absurd a nd unjust results” in light of sec tion 3-5 of SORA (730 I L CS 150/ 3-5 (West 2008)). That provision states, in releva nt part: “(c ) For a minor adjudicate d delinquent for an offe nse which, if char ged as an adult, would be a felony
, no less than 5 y ear s afte r reg istration o rd ered pursuant to subsection (a) of this Section, the minor may petition for the termination of the term of reg istration. F or a minor adjudicate d delinquent for an offe nse which, if char g ed

as an adult, would be a misdemeanor, no less than 2 y ear s afte r reg istration order ed pursuant to subsection (a) of this Section, the minor may petition for termination of the term of r eg istration. (d) The court may upon a hearing on the petition for termination of reg istration, terminate reg istration if the court finds that th e reg istrant poses no risk to the community by a preponde ranc e o f t h e evidenc e based upon the fac tors set forth in subsection (e ).” 730 I L CS 150/ 3-5(c ), (d) (West 2008). ¶ 25 Acc ording to the appellate court, including juveniles found “n o t n o t gu i l t y ” as s ex offe nders under section 2(A )( 1 )( d) would be absurd beca use the provisions of section 3-5 allowing termination of reg istration apply only to juveniles adjudicate d delinquent. Thus, a nondelinquent juvenile would end up “having few er rig hts than a juvenile who was actua lly adjudicate d delinquent in that the forme r has no a bility to petition the circuit court to have his sex offe nder reg istration terminated pursuant to section 3-5(c ).” 408 I ll. App. 3d at 520. ¶ 26 We agree

. Indeed, the absurdity noted by the appellate court is particula rly evident in this

case , wher e S.B. has been found, afte r extensive evaluation, not to pose a threat to the safe ty of the public. We can think o f n o rea son why a juvenile whom the circ uit court has deter mined poses no dang er to the commu n i t y may not petition for remova l from the sex offe nder reg istry
, while a juvenile who has been adjudicate d delinquent m ay

. We hold, there fore
, that despite the fac t that section 3-5 mentions only juveniles adjudicate d delinquent, the leg islature cannot have intended to exclude juveniles found “not not guilty ” from its rea ch. See, e.g ., People v. Hanna
, 207 I ll. 2d 486 (2003) (th e l i t era l rea ding of a statute must yield wher e such a rea ding le ads to an a

bsurd re sult). ¶ 27 Howeve r, as the S t at e correctly points out, the appellate court err ed in rely ing on the absurd- result principle to hold that juveniles found “not not guilty” do not fall under section 2(A)( 1)(d) and
, t h er efor e, are not require d to reg ister as sex offe nders. The illogic in the statutory scheme is not in requiring reg istration for juveniles found “not not guilty ,” as such juveniles have been f

ound to have committ ed a sexual offe nse beyond a re asonable doubt.

-6-Rather, the illogic is in deny ing those juveniles the opportunity to petition for termination of
reg istration, just as juveniles who have b ee n adjudi cate d delinquent may do. Recognizi ng this fac t, the State sug g ests that this “Court should corr ect [t he absurdity] by interpre ting section 3-5 t o al l o w all juveniles require d to reg ister under SORA to petition for ear ly termination of reg istration obligations rathe r than limit the universe of juveniles require d to reg ister under

section 2(A) in the first instance.” We agree with the State. ¶ 28 “We have authority to rea d into statutes languag e omitted by oversight.” Carey v. Elrod
, 49 I ll. 2d 464, 470 (1971) (citing People v. Hudson
, 46 I ll. 2d 177, 181 (1970), and People

ex rel. Ca s o n v. Ring
, 41 I ll. 2d 305, 310-16 (1968))

. “[W ]hi le courts are and should be cautious about adding words, as such, to a statute g ener ally
, they will not hesitate to rea d into the sense of some section or provision a qualifying or expanding expression plainly implied by the gene ral contex t of t he act, which has been palpably omitted an d wh i ch is nece ssary to preve nt the leg islative purpose from failing in one of its materia l aspec ts.” People ex rel. Ba r r ett v. Anderson
, 398 I ll. 480, 485 (1947). Fur ther, words may be supplied in a statute wher e omission of the words makes the statute absurd. See g ener ally 2A Norman J

. Singer & J

. D. Shambie Singer
, Sutherland on Statutory Construction § 47:38, at 522-24 (7t h ed

. 2007). ¶ 29 In enac ting the termination provisions of section 3-5, the Gene ral Assembly rec og nized that, in many instances, juveniles who eng ag e in sexually inappropriate behavior do so beca use of i m m at u ri ty rathe r than predatory inclinations. The purpose of the termination provisions of section 3-5 is to aff ord juveniles the opportunity to demonstrate this is true in

an individual case , and to prove that they do not pose a safe ty risk to the community

. To rea d section 3-5 as denying juveniles found “not not guilty ” the opportunity to proce ed under the termination provisions would—in addition to creatingthe absurdity noted by the appellate court—de feat the very

purpose of

the statute. ¶ 30 Moreove r, it is evident why
, in e nacting section 3-5, the Gene ral Assembly overlooke d juveniles found “not not guilty ” following a discharg e hearing

. Dischar g e hearing s are not expli citly mentioned in the J uvenile Court Act. As noted above, this is the first decision from this court to expressly hold that discharg e hearings under section 104-25 of the Code are incorpora ted into the J uvenile Court Act. See 408 I ll. App. 3d at 525 (Schmidt, J
., dissenting) (“My best guess is that the failure to inc lude [j uveniles found ‘not not guilty ’] in the g roup who can petition for ear ly termination of the reg istration require ment is simply a leg islative oversight.”). ¶ 31 In o rd er t o av o id an absurd result, and to g ive eff ect to the purpose of section 3-5 of SORA, we hold that section 3-5 should be rea d to include juveniles for whom a findingof “not not guilty ” has been enter ed following a discharg e hearing. S.B. may there fore petition for r emoval fr om the sex offender reg istry pursuant to the ter

ms of section 3-5. ¶ 32 At oral argument, the State pointed out that the same inconsistency noted by the appellate court with re spect to sec tion 3-5 of SORA also appea rs in section 121 of the Sex Offe nder Communi ty Noti fication Act (730 I L CS 152/121 (West 2008)). That provision limit s the dissemination of sex offe nder information “with respe ct to an adjudicate d delinquent.” For the rea sons expressed above, we simil arly hold that section 121 of the Sex Of fe n der

-7-Communi ty Notification Act should be rea d to include juveniles fou n d “not not guilty ”

followinga discha

rg e hea ringunder se ction 104-25 of the Code

. ¶ 33 Finally
, we note that S.B. argues that denying him the oppo rt u n i t y t o p et i t i o n fo r termination of reg istration violates his rig ht to equal protec tion and due proce ss. Be cause we have conclude d, as a matter of statutory interpre tation, that S.B. may petition to be remove d from the sex off

ender reg istry under the terms set forth in se ction 3-5, we ne ed not addre ss these c ontentions.

¶ 34 Conclusion ¶ 35 For the fore g oing rea sons, the judgme nt of the appellate court is r ever sed. The c ause is

rema nded to the cir cuit court for further proce eding s consistent with this opi nion.

¶ 36 Reverse d and re manded.

¶ 37 J USTI CE GARMAN, dissenting: ¶ 38 I agree with my colleagues that the trial court proper ly conducte d a discharg e hearing in
t h e prese nt case

. Howeve r, I do not join that portion of the opinion that imposes upon a juvenile the same conseque nces that a finding of “not not guilty ” would impose on an adult offe nder. ¶ 39 The term “discha rg e hear ing” does not appea r an y wh er e i n t h e J u v en ile Court Act. Howeve r, the Ac t does contain a speedy-trial provision, which state s, in part: “The period in which a trial shall be held *** is tolled by : (i) delay occa sioned by the minor; (ii) a continuance allowed pursuant to Section 114-4 of the Code of Criminal Procedur e of 1963 afte r the court’s deter mination of the minor’s incapa city for trial; (iii) an interlocutory appea l; (iv) an exami nation of fitness order ed pursuant to Section 104-13 of the Code of Criminal Procedur e of 1963; (v) a fitness hearing; or (vi) an a djudication of unfitness for trial.” 705 IL CS 405/ 5-601(8) (West 2008). ¶ 40 Clearly
, the J uvenile Court Act an t i ci p at es fi t n es s h ea ri n gs fo r juveniles and the possibili ty that a juvenile will be found unfit to proce ed with a trial or adjudication. The Act also direc ts the trial court to conduct the fitness evaluation pursuant to section 104-13 of the Code of Criminal Procedur e. The J uvenile Court A ct, howeve r, does not provide direc tion to the courts as to how to proc eed when a minor is found unf it to procee d. ¶ 41 Article 104 of t he C ode of Criminal Procedure is tit led “F itness for trial, to plea d or t o be sentenced.” It contains over 20 s ep ar ate provisions, only one of which, section 104-13, is expressly incorpora

ted by ref ere nce into the J uvenile Court Act. The leg islature’s choice
to expressly incorpora

te only this one provision may ref lect its in t en t i on that the other sections of Article 104 not ap p l y in juvenile proce eding s; or, the failure to specific ally provide a proce dure to be followed if a juvenile i s found unfit to proce ed may be an oversight. ¶ 42 When fac ed with a finding of unfitness and the ab s en ce of guidance in the statute, the trial court is fac ed with two alternatives. First, the fin ding of unfitness could require

-8-dismiss al of the juvenile proce eding

. This option serve s neither the unfit minor nor the

public. ¶ 43 Second, the court could proce ed as it did in the prese nt case , by “importing ” section 104- 25(a) of the Code of Criminal Proc edure and conduc ting a discharg e hearing. Section 104- 25(a) provides, in toto :

“(a ) As provided for in para g raph (a) of Section 104-23 and subpara g raph (1) of
para g raph (b) of Section 104-23 a h ea ri ng to deter mine the sufficie ncy of the evidenc e shall be held. Such hearing shall be conducte d by the court without a jury

. T h e S t at e and the defe ndant may introduce evidenc e rele vant to the question of defe ndant’s guilt of the crime c harg ed. The court may admit hear say or aff idavit evidenc e on seconda ry matters such as testimony to establish t h e chain of possession of phy sical evidenc e, labora tory repor ts, authentication of t ra n scripts taken by officia l repor ters, court and busi ness

rec ords, and public doc uments.” 725 I L CS 5/ 104-25(a) (West 2008). ¶ 44 T he majority holds that “sec tion 104-25(a ) i s incorporated i nto the J uvenile C ourt Ac t and that the c ircuit court’ s finding of ‘not not guilty ’ wa s not void.” Supra ¶ 20. ¶ 45 A finding of “not not guilty ” is a uthorized by section 104-25(d)
, not se ction 104-25(a ). In addition, a finding that the evidenc e does not prove the defe ndant guilty beyond a

rea sonable dou b t results in a judgment of acquittal under section 105-25(b); a finding t hat
t h e d efendant is not guilty by rea son of insanity and the resulting acquittal is g overne d b y section 105-25(c ). 725 I L CS 5/104-25(b), (c)
, (d) (West 2008). As a result, this court cannot “incor porate ” only section 104-25(a ) of the Code of Criminal Procedur e into the J uvenile Court Act without incorpora ting, at least, sections 104-25(b)
, (c)
, and (d). And if subsections (a) throug h (d) a

re inc orporated, what a

bout (e) thr oug h (g )? ¶ 46 And if the mere mention in the J uvenile Court Act of a fitness examination under se ction 104-13 of the Code of Criminal Procedur e “incor porate s” additional sections of Article 104 of the Code, what of the other se ctions in that Article?
104-10 Presumption of Fitness; Fitness Standar d
104-11 Raising I ssue; Bur den; Fitness Motions
104-12 Right to J ury 104-14 Use of Stateme nts Made Dur ing E x amination or

Treatment 104-15 Report
104-16 Fitness He aring
104-17 Commi tment for Tre atment; Treatment Plan
104-18 Prog ress Repor ts 104-19 Records
104-20 Ninety -Da

y Hea ring s; Conti nuing T reatment 104-21 Medication
104-22 Trial with Special Provisions and Assistance

-9-104-23 Unfit Def endants
104-26 Disposition of Defenda nts SufferingDisabilities ¶ 47 These quest i o n s aside, I agree that holding a discharg e hearing afte r a minor has bee n found unfit to proce ed with adjudication is in keeping with section 5-101(3) of the J uvenile Co u rt Act, which states that minors shall have all of the proce dural rig hts of adults in criminal proc eeding s “unless spec ifically prec luded by

laws that enha

nce the protec tion of such minors.” 705 I L CS 405 / 5 -101(3)

. Nothing in the J uvenile Court Act specific ally
prec ludes the trial court from holding a discharg e hearing, and beca use the hearing may result in dismiss al if the evidenc e is not su ff icient to support an adjudication of delinquency
, a discharg e hea

ringenhanc es the prote ction of minors by providingdue proc ess. ¶ 48 I
, there fore
, agree with t h e majority that a trial court may conduct a discharg e hea ring
, along the l i n es o f the hear ings g overne d by section 104-25 of the Code of Criminal Procedur e, when a juvenile has been found unfit to proce ed with adjudication. Istop short of finding that the leg islature intended to “incor porate ” any part of Article 104 of the Code, aside from section 104-13, into the J uvenile Court Act. I als o question the holding that incorpora tes only section 104-25(a ) of the Code, but not sections 104-25(b)
, (c)
, and (d), and does not offe r a guide to the lower courts for deter mining which other sections of Article 104 of the Code a

re a lso deemed inc orpora ted. ¶ 49 I n t h e prese nt case , the trial court conclude d afte r a discharg e hearing that th er e wa s sufficie nt evidenc e to adjudicate the minor delinquent, had he been fit to proce ed, in eff ect, findinghim “not not guilty .” ¶ 50 I f an a dult is found “ not not guilty ,” sever al conseque nces flow. The adult may be held for treatment f

or up to two y ear s, or for up to f ive year s on a char g e of first degree murder. 725 I L CS 5/104-25(d) (West 2008). The majority does not sug g est that these conseque nces attach to a

juvenile, but does not explain why

. ¶ 51 In addition, the adult found “not not guilty ” of specifie d crimes is require d to reg ister as

a sex offe nder pursuant to section 2(A)( 1)(d) of the Sex Offe nder Reg istration Act (SORA). 730 I L CS 150/2(A)( 1)(d) (West 2008). The majority conclude s that beca use secti on 104- 25(a) of the Code of Cri m i n al P rocedure is incorporated into the J uvenile Court Act, the juvenile who is found “not not guilty ” of one of the enumer ated sex offe nses afte r a discharg e hear ing is a lso require d to reg ister as a sex offender

. ¶ 52 Section 2(A) of SORA lists five sepa rate cate g ories of sex off

ender s. A sex off

ender is “any person” who fa lls int o one of the five e numera ted categ ories. ¶ 53 Only cate g ory (5) expressly applies to juveniles. Under this provision, a minor is r equire d
to reg ister as a sex offe nder if “adjudicated a juvenile delinquent as the result of committing

or attempting to commit an act which, if committed by an adult, would constitute any of the offe nses spec ified.” 730 I L CS 150/ 2(A)( 5) (West 2008). ¶ 54 As I rea d section 2 of SORA, there is only one circ umstance under which a minor could

come within any of the other cate g ories of sex offe nder. Under the plain languag e of section 2(A)( 1), “any person” who “is convicted of” one of the enumer ated crimes or of “an attempt to commit such offe nse” is a sex offe nder and require d to reg ister. 730 I L CS 150/2(A)( 1) (West 2008). The only way that a minor could come within this section is if he is at least 15

-10-y ear s old, char g ed with ag g ravated criminal sexual assault, and prosec uted as an adult under

section 5-130(1) (a) of the J uvenile Court Act (705 I L CS 405/5-130(1)( a) (West 2008)). The plain meaning of section 2 of SORA is that a minor must reg ister on l y if adjudicate d d elinquent as a result of committing one of the listed crimes or if tried as an ad u l t an d convicted of

such a c rime. ¶ 55 Neve rtheless, t h e m aj o rity finds an inconsistency in SORA beca use, as a result of its incorpora ting section 104-25(a ) of the Code of Criminal Proc edure into the J uvenile Court Act, a minor may be determined t o be “not not guilty” of one of t he enumerate d crimes. I f such a finding wer e made with respe ct to an adult, or to a minor over the ag e of 15 who was prosec uted as an adult, he would be define d as a sex offe nder under section 2(A)( 1)(d)

. Thus,
t h e majority conclude s, a 14-year -old who was not fit for adjudication beca use o f h i s developmenta l disability and who was not char g ed with a crime that would have allowed him to be prosec uted as a

n adult even if

he we re 15 must re g ister as a sex offender

. ¶ 56 This appar ent inconsistency was cre ated by the majority ’s incorporation of section 104- 25(a) of the Code of Crimi n al Procedur e into the J uvenile Court Act. As a result, this
court—not the languag e of SORA—would make sections 2(A)( 1)(c ), (d), and (e) of SORA applicable to unfit juveniles who have be en g iven a discha rg e hea ring

. ¶ 57 I find no inconsistency in SORA. The meaning of sec t i o n 2 i s p l ain. A minor is not requir ed t o reg ister unless he is adjudicate d delinquent or unless he comes within the definition of “se x offe nder” by virtue of having be en prose cuted a s an adult. ¶ 58 The majority ’s ap p ro ac h
, aside from ignor ing the plain languag e of section 2(A) of SORA, rende rs para g raph (5) mere surplusag e. I f a minor is a “sex offe nder” by virtue of “convic tion” of one of the enumer ated offe nses and if, as section 2(A) states, “ ‘convic ted’ shall have the same meaning as ‘adjudicated,’ ” (730 I L CS 150/2(A) (West 2008)), then there i s n o reason whatsoeve r to have para g raph (5) at all. Every minor acc used of one of t h e

enumer ated crimes wil l either be acquitted, adjudicated delinquent ( i.e.
, convicted)
, found “not not guilty ” afte r a discharg e hearing, or found not guilty by rea son of insanity

. All of these outcomes are expressly provided for in section 2(A)( 1), making section 2(A)( 5), under the majority ’s re ading , utterly unnece ssary

. ¶ 59 The leg islature’s i n t en t t h at m i nors be require d to reg ister as sex offe nders only if convicted as adults or if adjudicate d delinquent is also ref lected in section 3 of SORA, which is titled “Application of Act to adjudicate d juvenile delinquents.” 730 I L CS 150/3-5 (West 2008). T his section g overns the duration of sex offe nder reg istration by a juvenile and permits “a hear ing on the petition for termination of reg istrat i o n .” 730 I L CS 150/3-5(d) (West 2008). ¶ 60 Thus, a minor who is t ri ed as an ad u l t , co n v i cted, and order ed to reg ister as a sex offe nder does not come within the scope of this section and would not be elig ible to petition for termination of reg istration. A minor, as in th e p re s en t ca s e, who is define d as a sex offe nder beca

use of a finding of “n o t n ot guilty ” does not come within this section either, despite the lack of an adjudication of delinquency

. The majority finds this result absurd and solves an inconsistency of its own cre ation by holding that section 3-5(d) applies to a minor found “not not guilty” as w ell.

-11-¶ 61 Finally
, the majority holds that section 121 of the Sex Offe nder Notification L aw “ should

be re ad to include juveniles f ound ‘not not guilty ’ followinga discha rg e hea ring .” ¶ 62 For

me, this is a bridg e too fa r. While it i s clea

r that the leg islature did not intend for a minor who is unfit a s a re sult of developmental disability or mental illness to be subject to an adjudication hearing , the J uvenile Court Act g ives the cour ts no direction as to the ne x t

s t ep

. As a matter of statutory interpre tation, I agree that section 5-601(8) of the J uvenile Court Act, by providing for a fitness examination and fitness hearing pursuant to section 104- 13 of the Code of Criminal Procedur e, cre ates a g ap in the law which this court must fill as a matter of due pr ocess, judicial e fficie ncy , and pra cticality

. ¶ 63 I als o agree that once a minor is found unfit to proce ed with adjudication, holdi n g a discharg e hear ing along the lines of a section 104-25 hearing is a rea sonable way to proce ed. T h at s ai d
, I am unwilling to rea ch so far as to extend the scope of the Sex Offe nder Reg istration Act and the Sex Offe nder Communi ty Notification L aw to mi n o rs who have been f ound unfit for a djudication. These a re issues f

or the leg islature. ¶ 64 For

these re asons, I

respe ctfully

dissent.

-12-