In re JW

• Decision Date: 21 February 2003
• Docket Number: No. 92116.,92116.
• Citation: 204 Ill.2d 50,787 N.E.2d 747,272 Ill.Dec. 561
• Parties: In re J.W., a Minor (The People of the State of Illinois, Appellee, v. J.W., Appellant).
• Court: Illinois Supreme Court

787 N.E.2d 747

204 Ill.2d 50

272 Ill.Dec. 561

In re J.W., a Minor (The People of the State of Illinois, Appellee, v. J.W., Appellant).

No. 92116.

Supreme Court of Illinois.

February 21, 2003.

Rehearing Denied March 31, 2003.

Josette Skelnik, Elgin, for appellant.

James E. Ryan, Attorney General, Springfield, Meg Gorecki, State's Attorney, St. Charles (Joel D. Bertocchi, Solicitor General, William L. Browers, Anne S. Bagby, Assistant Attorneys General, Chicago, of counsel), for the People.

Herschella Conyers, Chicago, for amicus curiae Edwin F. Mandel Legal Aid Clinic of the University of Chicago Law School.

Steven A. Drizin, Chicago, Colleen M. Ryan, law student, for amicus curiae Bluhm Legal Clinic of Northwestern University School of Law.

Justice THOMAS delivered the opinion of the court:

Respondent, J.W., a 12-year-old boy, was adjudicated delinquent following his admission to two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(b)(i) (West 1998)), and was sentenced to a term of five years' probation. Among the conditions of his probation, J.W. was ordered to register as a sex offender. In addition, J.W. was prohibited from residing in or going to the Village of South Elgin, Illinois, the community where J.W. lived and where the aggravated criminal sexual assaults took place.

J.W. appealed two of the conditions of his probation contending that: (1) requiring a 12-year-old child to register as a sex offender is unconstitutional; and (2) prohibiting J.W. from residing in or visiting South Elgin as a condition of probation is overly broad and void. The appellate court affirmed the trial court's order. Nos. 2-00-0360, 2-00-0432 cons, (unpublished order under Supreme Court Rule 23). This court granted J.W.'s petition for leave to appeal (177 Ill.2d R. 315). We also granted the motion of the Bluhm Legal Clinic of Northwestern University Law School and the Edwin F. Mandel Legal Aid Clinic of the University of Chicago Law School for leave to file a brief as amicus curiae.

BACKGROUND

The State filed its petition for adjudication on November 10, 1999, alleging that J.W. had committed aggravated criminal sexual assaults against two seven-year-old boys, R.We. and J.P. On February 14, 2000, J.W. pled guilty to two counts of aggravated criminal sexual assault in exchange for the State's agreement to withdraw two other counts of aggravated criminal sexual assault. There was no agreement among the parties as to sentencing. Consequently, a sentencing hearing was held in February 2000.

At J.W.'s sentencing hearing, Dr. Kevin Breen, a psychiatrist, testified that he met with J.W. and his parents one time in December 1999, for approximately one hour, to determine whether J.W. was a danger to anyone else. Dr. Breen's report of this examination was entered into evidence. The report indicated that J.W. had admitted to five episodes where he convinced R.We. and J.P. to have oral-genital contact with one another and with him. J.W. denied that the boys were physically coerced, but admitted he used verbal coercion. J.W.'s parents revealed to Dr. Breen that J.W. also had exposed himself on one occasion to a five-year-old boy. J.W. denied having been physically, sexually or emotionally abused, but admitted that he had seen his father's sexually explicit magazines.

Dr. Breen concluded in his report that J.W. was minimizing his sexual encounters with young boys, noting that J.W. had not mentioned the incident with the five-year-old boy. According to the report, Dr. Breen's diagnosis of J.W. was paraphilia, not otherwise specified. Paraphilia is where a person engages in sexual activity or sexual acts that are not sanctioned by society. The diagnosis would have been pedophilia with a sexual attraction to males, except that J.W. was not 16 years old, as required by the standard criteria.

Dr. Breen testified at J.W.'s sentencing hearing that he was not aware of any incidents of anal sex or anal penetration between J.W. and his victims, nor was he aware of allegations that J.W. had introduced a dog into his sexual acts. Dr. Breen's recommendations for the treatment of J.W. included medication, cognitive behavioral therapy, and residential treatment. Dr. Breen recommended residential treatment given the frequency of relapse among individuals with sexual disorders. Dr. Breen testified that, given the frequency of relapse, J.W. would present a risk to the community if he was not placed in residential treatment.

David Berg, an investigator with the Child Advocacy Center of the Kane County State's Attorney's office, testified at the sentencing hearing that he investigated the case concerning J.W. Berg became involved in the case after the family of R.We. made a police report alleging that J.W. had put his mouth on R.We.'s penis and had R.We. put his mouth on J.W.'s penis. These incidents took place under the deck of a neighbor's house and in J.W.'s home. R.We. said the sexual contact occurred between 5 and 10 times. R.We. did not tell anyone about the incidents because he feared retribution from J.W.

Berg also interviewed the other victim, J.P. J.P. told Berg that J.W. had put his mouth on J.P.'s penis and that J.W. had put his penis in J.P.'s mouth. J.W. also touched the penises of both victims.

In addition to the two victims, a five-year-old boy saw J.W. expose himself, and R.We.'s six-year-old sister witnessed an incident of oral sex between J.W. and R.We.

Berg initially spoke with J.P.'s stepmother on November 5, 1999. In a follow-up conversation several days later, J.P.'s stepmother told Berg that J.P. had forgotten to tell him something, and indicated that J.W. had placed his penis in J.P.'s anus. Subsequently, both J.P. and R.We. told Berg there were several occasions where J.W. placed his penis in their anuses. J.P. told Berg that he did not tell anyone about these incidents because J.W. told him not to tell.

Berg testified that approximately one week prior to the sentencing hearing, he again met with R.We., who told Berg that J.W. had his dog lick the penises of both boys. J.W. also told the two victims to try to penetrate the dog's anus with their penises, but they were unable to do so. The boys did observe J.W. penetrate the dog's anus. The incidents with the dog took place in J.W.'s home. In addition, both boys related that J.W. had directed them to penetrate one another, but they were unable to do so. These events took place under the deck of the neighbor's home and at J.W.'s home.

Therese Wrona, a therapist, testified that she had been involved in the treatment of sexually abusive juveniles for 10 years. Wrona first saw J.W. on December 7, 1999, and in January 2000 began seeing him at least once a week. Wrona testified that J.W. was a danger to the community "to a certain degree." Wrona recommended probation for J.W., stating that "the longer the legal system hangs on to individuals such as [J.W.], the better." In addition, Wrona recommended a course of treatment specialized for individuals that have problems with sexual aggression. Wrona also stated that J.W. required 24-hour monitoring and supervision by a person that understood the nature and seriousness of J.W.'s problem. J.W.'s school should be informed concerning J.W.'s history of sexually aggressive behavior so that the school could monitor J.W. and protect other students. Wrona further said that J.W. should not be around younger children, or even children his own age, unless an adult who is aware of J.W.'s problems is present. Wrona's opinion was that J.W. should be allowed to remain in the community and should not be placed in residential treatment. With regard to the protection of the community, Wrona believed that J.W. could return to his home in South Elgin, although given the publicity concerning the case, Wrona believed it might not be in J.W.'s best interest to return to his home.

Wrona testified that J.W. "groomed" his victims, meaning that he approached the victims to assess his likelihood of committing the sexual abuse. J.W. sought out his victims and selected his victims based upon their youth and their trust in him. Wrona said that J.W. initially did not feel any guilt, but she believed J.W. was beginning to appreciate the seriousness of his acts.

J.W.'s parents testified at the sentencing hearing and indicated their willingness to engage in intensive supervision and monitoring of J.W. if he was allowed to return home. J.W.'s parents also indicated that if J.W. was allowed to return home, they intended to sell their home in South Elgin and move to a different neighborhood. J.W.'s aunt testified on behalf of J.W. that she resides with her husband in Elgin, Illinois. She stated that she and her husband were willing to let J.W. live with them and would take responsibility for his supervision.

At the conclusion of the sentencing hearing, J.W. made a statement on his own behalf apologizing to the victims. The trial court then noted that, because J.W. was under the age of 13, he could not be committed to the juvenile division of the Department of Corrections. See 705 ILCS 405/5-750(3) (West 2000). The trial court also noted that, even though the State had recommended residential treatment for J.W., the State had not determined whether there was a treatment center willing and/or able to take J.W. Accordingly, the trial court placed J.W. on five years' probation and directed the probation officer to determine whether placement was available for J.W. J.W. was to be placed in residential treatment if such placement was available. If placement was not available, J.W. was prohibited from going back to South Elgin and was ordered to reside with his aunt, until his parents moved out of South Elgin. J.W. also was ordered to register as a sex offender and to comply with AIDS/HIV testing pursuant to section 5-710 of the Juvenile Court Act of 1987 (705 ILCS 405/5-710 (West 2000)).

On March 1, 2000, the parties returned to court and...