SECOND DIVISION

									November 25, 2003

No. 1-02-0456

IN THE INTEREST OF F.M., a Minor		)	Appeal from the

(THE PEOPLE OF THE STATE OF ILLINOIS,	)	Circuit Court of

								)	Cook County. 						

		Petitioner-Appellee,		)	

								)

		v.						)	

								)

F.M., a Minor,						)	Honorable 

								)	Richard F. Walsh,

		Respondent-Appellant).		)	Judge Presiding.

	pPresRESIDING JUSTICE WOLFSON delivered the opinion of the court:

	Following an adjudicatory hearing, respondent F.M. was found

delinquent based on his commission of aggravated criminal sexual

assault.  Respondent was placed on five years' probation and

ordered to refrain from having any unsupervised contact with

children under 12 years of age.  On appeal, respondent contends:

(1) the aggravated criminal sexual assault statute he was charged

with violates due process because it permits felony adjudications

based on innocent conduct; (2) his disposition as a Class X

offender pursuant to section 12-14(b)(i) of the Criminal Code of

1961 was in error where that section properly is classified as a

Class 4 offense; and (3) he was deprived of due process of law

where the State presented unreliable evidence of prior bad acts

through a victim impact statement.  We affirm.

FACTS

	Respondent was charged with aggravated criminal sexual

assault pursuant to section 12-14(b)(1).  720 ILCS 5/12-14(b)(1)

(West 2000).  He was adjudicated delinquent after a stipulated

adjudicatory hearing.

	At the hearing on a motion to suppress statements, Sergeant

William Stutzman of the Wheeling Police Department testified that

on March 29, 2000, he investigated a possible incident of sexual

abuse between respondent, respondent's sister, and a neighbor

girl.  He called respondent's mother and asked her to bring

respondent to the police station.  After being read his Miranda rights, respondent gave a verbal statement, followed by a written

statement.  He admitted placing his penis in the mouths of his

sister and the neighbor girl.  The court denied the motion to

suppress. 

	The parties entered into a stipulatory adjudicatory hearing

that incorporated respondent's statement.  They also stipulated

that on March 28, 2000, respondent was 13 years old, and the

neighbor victim was 6 years old.  The state informed the court

that the charges related to respondent's sister were nolle

prossed.  The trial judge adjudicated respondent delinquent of

aggravated criminal sexual assault.

	At the dispositional hearing, the State introduced evidence

in the form of two victim impact statements.  The victim's father and mother each read a statement to the court.  In the victim's

mother's statement, she said, "what [the victim] saw was she

played a part in a game at least three separate times*** The fact

that he subjected my daughter and his sister to this numerous

times makes me wonder about my ability to protect my daughter."  

	The State recommended that respondent be placed on five

years' probation and ordered to refrain from having any

unsupervised contact with children under 12 years old.  The

assistant public defender had no objection and said she was

"fundamentally in agreement" with the recommended sentence.  The

court followed the State's recommendation, placing respondent on

five years' probation and ordering respondent not to have any

unsupervised contact with children under 12.  Respondent also was

ordered to participate in sex offender treatment, with family

counseling and mandatory school attendance.

DECISION

I. Substantive Due Process

	Respondent first contends the statue under which he was

found delinquent, section 12-14(b)(i), violates due process

because it sweeps too broadly and potentially punishes innocent

conduct.  The section charged against respondent does not require

that sexual penetration be accompanied by sexual gratification or

the use or threat of force.  Absent a requirement of criminal intent or a culpable mental state, respondent contends, merely

changing a baby's diaper or washing a baby with a washcloth could

be punishable as a felony.  

	Whether a statute is constitutional is a question of law to

be reviewed de novo.  People v. Morgan, 203 Ill. 2d 470, 486, 786 N.E.2d 994 (2003).  All statutes are presumed constitutional, and

the party challenging the constitutionality of a statute bears

the burden of clearly establishing the alleged constitutional

violation.  In re R.C., 195 Ill. 2d 291, 296, 745 N.E.2d 1233 (2001).

	Section 12-14(b)(i) provides:	

		"(b) The accused commits aggravated criminal sexual

assault if the accused was under 17 years of age and

(i) commits an act of sexual penetration with a victim

who was under 9 years of age when the act was

committed."  720 ILCS 5/12-14(b)(i) (West 2000). 

	"Sexual penetration" is defined as:

		"any contact, however slight, between the sex organ or

anus of one person by an object, the sex organ, mouth

or anus of another person, or any intrusion, however

slight, of any part of the body of one person or of any

animal or object into the sex organ or anus of another

person ***."  720 ILCS 5/12-12(f) (West 2000).  

	The State contends respondent essentially is arguing section

12-14(b)(i) is overbroad, the same defense argument rejected in

People v. Terrell, 132 Ill. 2d 178, 547 N.E.2d 145 (1989), where the accused facially challenged the aggravated criminal sexual

assault and criminal sexual assault statutes.  There, the court

discussed two alternative requirements for standing to attack the

constitutionality of a statute: the person must be directly

affected by the alleged unconstitutionality, or he must claim the

statute inhibits the exercise of rights protected under the First

Amendment.  Terrell, 132 Ill. 2d at 212.  The first requirement prevented the defendant from pursuing his challenge to the face

of the statutes.  That is, "[t]he defendant does not have

standing to challenge the constitutionality of those statutes on

the ground that they may be applied unconstitutionally in a

different situation."  Terrell, 132 Ill. 2d at 212.

	Terrell would dispose of an overbreadth claim in this case, although the overbreadth doctrine was "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 that freedom."  People v. Anderson, 148 Ill. 2d 15, 26, 591 N.E.2d 461 (1992), citing Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973).  

	Respondent insists he is not arguing overbreadth in this case.  Although we believe Terrell requires rejection of respondent's claim on standing grounds, we will address the due

process theory he relies on to attack the facial validity of

section 12-14(b)(i).  

	Respondent contends section 12-14(b)(i) is unconstitutional

because it violates substantive due process.  See Anderson, 148 Ill. 2d at 27 (distinguishing between first amendment overbreadth

claim and due process claim based on People v. Wick, 107 Ill. 2d 62, 481 N.E.2d 676 (1985)).  When legislation does not affect a

fundamental right, we use the rational basis test to analyze a

substantive due process claim.  People v. Wright, 194 Ill. 2d 1, 24, 740 N.E.2d 755 (2000).  We must determine whether the statute

bears a reasonable relationship to its intended purpose, and

whether the means adopted are a reasonable method of

accomplishing that purpose.  Wright, 194 Ill. 2d at 24.      

	Respondent relies on three Illinois Supreme Court decisions:

Wright, 194 Ill. 2d at 28 (invalidating section 5-401.2(i) of the Vehicle Code providing that anyone who "knowingly" failed to keep

certain records for three years was guilty of a Class 2 felony);

People v. Zaremba, 158 Ill. 2d 36, 42, 630 N.E.2d 797 (1994) (invalidating a section of the Illinois Theft Statute making it a

felony for a person to obtain or exert control over property in

the custody of a law enforcement agency where that person has been informed the property was stolen); and Wick, 107 Ill. 2d at 66 (invalidating a section of the aggravated arson statute making

it a Class X felony to knowingly damage a building by a fire that

caused injury to a fireman or police officer at the scene).  

	In each case the court held that because the statute did not

require a culpable mental state it could be read to apply to

wholly innocent conduct.  The statutes did not possess a rational

relationship to their intended purpose because they could sweep

in innocent people who reasonably believed they were engaging in

lawful activity.  Standing was not an issue in these cases. 

	Unlike the statutes in Wick, Wright, and Zaremba, the criminal sexual assault statute does not reach innocent conduct. 

Although the definition of "sexual penetration" does not

expressly require a mental state, the legislature clearly did not

intend the statute to define a strict liability or public welfare

offense.  Terrell, 132 Ill. 2d at 209.  This court and the Illinois Supreme Court have held the criminal sexual assault

statute implicitly requires that the act of sexual penetration be

intentional or knowing.  See Terrell, 132 Ill. 2d at 209; People v. Bofman, 283 Ill. App. 3d 546, 551, 670 N.E.2d 796 (1996); People v. Ramsey, 190 Ill. App. 3d 723, 726, 546 N.E.2d 1108 (1989); People v. Jimenez, 191 Ill. App. 3d 13, 26, 547 N.E.2d 616 (1989); People v. Smith, 152 Ill. App. 3d 589, 594, 504 N.E.2d 850 (1987); People v. Bartay, 150 Ill. App. 3d 130, 132, 501 N.E.2d 364 (1986); People v. Burmeister, 147 Ill. App. 3d 218, 223-24, 497 N.E.2d 1212 (1986).  

	We disagree with respondent when he says section 12-14(b)(i)

does not require an unlawful purpose, thereby punishing innocent

as well as culpable conduct.  The section does require culpable

intent--the intent of someone under 17 to commit an act of sexual

penetration on a victim under 9.  See Terrell, 132 Ill. 2d at 209; Ramsey, 190 Ill. App. 3d at 726; Burmeister, 147 Ill. App. 3d at 224.  The statute does not punish innocent conduct. 

Jimenez, 191 Ill. App. 3d at 26; Burmeister, 155 Ill. App. 3d at 223-24.  Accordingly, we hold the aggravated criminal sexual

assault statute does not violate due process.    

II. Class X Offense

	Respondent next contends he was improperly sentenced as a

Class X offender where the sentencing provision of the criminal

sexual assault statute did not classify subsection 12-14(b) as a

Class X offense. 

	Section 12-14(d)(1) provided:

		"Aggravated criminal sexual assault in violation of

paragraph (1), (2), (3), (4), (5), (6), or (7) of

subsection (a) is a Class X felony***" 720 ILCS 5/12-

14(d)(1) (West 2000). 

	The statute was silent as to the classification of

subsection 12-14(b).  Section 5-5-2(a) of the Unified Code of

Corrections provides an unclassified offense "which is declared

by law to be a felony or which provides a sentence to a term of

imprisonment for one year or more shall be a Class 4 felony." 

730 ILCS 5/5-5-2(a) (West 2000).  Accordingly, respondent

contends he should have been disposed as a Class 4 offender.

	Subsequent to respondent's commission of the offense,

section 12-14(d)(1) was amended by Public Act 92-502 to classify

section 12-14(b) as a Class X offense.  Pub. Act 92-502, eff.

December 19, 2001.  The statute now provides:

		"Aggravated criminal sexual assault in violation of

paragraph (2), (3), (4), (5), (6), or (7) of subsection

(a) or in violation of subsection (b) or (c) is a Class

X felony."  720 ILCS 5/12-14(d)(1) (West 2001).

	Notwithstanding the amendment, respondent contends the

constitutional prohibition against ex post facto laws requires that he be sentenced in accordance with the law in effect at the

time the offense was committed.  See People v. Ollie, 333 Ill. App. 3d 971, 992, 777 N.E.2d 529 (2002).  

	The State responds that the legislature always intended for

section 12-14(b) to be a Class X offense.  In 1984, the

legislature enacted Public Act 83-1067, to recodify the existing sexual offenses into "a comprehensive statute with uniform

statutory elements."  Haywood, 118 Ill. 2d at 271.  Section 12- 14(d) of the original statute provided that all forms of

aggravated criminal sexual assault were Class X felonies.  Pub.

Act 83-1067, eff. July 1, 1984.  A 1999 amendment, among other

things, inserted "in violation of paragraph (1), (2), (3), (4),

(5), (6), or (7) of subsection (a)" in the first sentence of

subsection (d)(1), but made no reference to subsections (b) and

(c).  Pub. Act 91-404, eff. January 1, 2000.  The State contends

the statute's silence as to subsection (b) was a legislative

oversight which was remedied by the December 19, 2001, amendment. 

	The transcripts of the legislative debates bear this out. 

See 92nd Ill. Gen. Assem., Senate Proceedings, November 28, 2001,

at 23, and November 29, 2001, at 28 (statements of Senator

Dillard explaining amendment's purpose was to reenact penalty

provisions in the aggravated criminal sexual assault statute that

were erroneously eliminated); 92nd Ill. Gen. Assem., House

Proceedings, November 29, 2001, at 108-109 (statements of

Representative Hultgren stating the amendment corrected an error

in drafting that took out the penalty phase for aggravated

criminal sexual assault).   

	The primary rule of statutory construction is to determine and give effect to the legislature's true intent.  People v. Hickman, 163 Ill. 2d 250, 261, 644 N.E.2d 1147 (1994).  When the language of a statute is ambiguous, it is appropriate to resort

to other methods of statutory construction to determine

legislative intent.  People v. Koppa, 184 Ill. 2d 159, 169, 703 N.E.2d 91 (1998).  If the legislature's intent and purpose can be

ascertained from the statute, "words may be modified, altered, or

even supplied so as to obviate any repugnancy or inconsistency

with the legislative intention."  People v. Parker, 123 Ill. 2d 204, 210-11, 526 N.E.2d 135 (1988), quoting People v. Bratcher, 63 Ill. 2d 534, 543, 349 N.E.2d 31 (1976).  The "judiciary

possesses the authority to read language into a statute which has

been omitted through legislative oversight."  People v. Smith, 307 Ill. App. 3d 414, 419, 718 N.E.2d 640 (1999), quoting People v. Chandler, 129 Ill. 2d 233, 253, 543 N.E.2d 1290 (1989).  

	In several cases cited by the State, courts have supplied

missing words to statutes so as not to defeat the intention of

the legislature.  In Smith, 307 Ill. App. 3d at 417, the defendant contended the absence of the language "predatory

criminal sexual assault of a child" from the sentencing

provisions of the indecent solicitation statute rendered the

statute void and unconstitutional.  The court considered the

objective of the legislation in concluding the legislature's

failure to include the language in the provision was an oversight rather than an intentional omission.  Smith, 307 Ill. App. 3d at 420.  Similarly, in People v. Tellez, 295 Ill. App. 3d 639, 693 N.E.2d 516 (1998), the statute treated criminal neglect of an

elderly person and of a disabled person equally throughout the

statute, but the sentencing provision classifying the offense as

a Class 3 felony was silent as to neglect of the disabled.  The

court determined the omission of the words "or disabled" from the

penalty section of the statute was a legislative oversight. 

Tellez, 295 Ill. App. 3d at 643.  See also Parker, 123 Ill. 2d at 211, 213-14 (supreme court concluded the legislature intended the

"sexual relations within families" statute to apply to

stepparents; otherwise the legislative intent would have been

defeated).    

	In this case, we believe the legislature's failure to

include subsection (b) in the sentencing provision of the statute

classifying it as a Class X offense was not intentional, but an

oversight.  The legislature's December 19, 2001, amendment

including subsections (b) and (c) in the sentencing provision to

conform with the original version of the statute, as well as the

legislative history of the amendment, support our holding. 

Respondent properly was sentenced as a Class X offender under the

statute.   III. Victim Impact Statement

	Respondent next contends his sentence should be vacated

because the State introduced, through a victim impact statement,

unreliable evidence that respondent had engaged in prior sexual

misconduct on three separate occasions.  He contends the victim's

mother's statement cannot be deemed trustworthy because there was

no showing that the accusations were reliable and accurate.  See

People v. LaPointe, 88 Ill. 2d 482, 498-99, 431 N.E.2d 344 (1981) (at sentencing, trial court is not limited to considering

information that would be admissible at trial, but it must

exercise care to insure the accuracy of information considered).  

	We need not decide whether the evidence was properly

admitted.  Not only was respondent's sentence mandated by

statute, but respondent had no objection to and agreed to the

sentence.  Pursuant to section 5-715(1) of the Juvenile Court Act

of 1987, the period of probation for a minor found guilty of a

Class X offense "shall be at least 5 years."  705 ILCS 405/5-

715(1) (West 2000).  Since we have determined that respondent

properly was sentenced as a Class X offender, respondent's five-

year probation was mandatory.  Moreover, at the dispositional

hearing, the defense attorney failed to object to the victim

impact statement and indicated she was fundamentally in agreement

with the sentence recommended by the State because it was

mandated by statute.  We find no error in respondent's sentence.

CONCLUSION

	We affirm the decision and rulings of the trial court.

	Affirmed.

	BURKE, and GARCIA, JJ., concur.