People v. Conroy
| Citation | 2019 IL App (2d) 180693,438 Ill.Dec. 1,145 N.E.3d 537 |
| Decision Date | 12 November 2019 |
| Docket Number | No. 2-18-0693,2-18-0693 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sherry J. CONROY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
2019 IL App (2d) 180693
145 N.E.3d 537
438 Ill.Dec. 1
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Sherry J. CONROY, Defendant-Appellant.
No. 2-18-0693
Appellate Court of Illinois, Second District.
Opinion filed November 12, 2019
Rehearing denied December 10, 2019
John R. Bowley, of Chicago, for appellant.
Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman and Edward R. Psenicka, Assistant State's Attorneys, of counsel), for the People.
JUSTICE BURKE delivered the judgment of the court, with opinion.
¶ 1 Following a bench trial, defendant, Sherry J. Conroy, was convicted of one count of prostitution. 720 ILCS 5/11-14(a) (West 2016). On direct appeal, defendant concedes that her conduct meets the statutory definition of the offense, but she argues that section 11-14(a) of the Criminal Code of 2012 is unconstitutional. Defendant contends that (1) adults have a fundamental substantive due process right to engage in private, consensual sexual activity, without governmental intervention or fear of criminal liability, and (2) section 11-14(a), as applied to her, impermissibly infringes on that right. Defendant attempts to characterize the right affected as a fundamental right to privacy, when in fact she is asserting a constitutional right to the commercial sale of sex. No such right exists, and section 11-14(a) is rationally related to the legitimate governmental interest in prohibiting prostitution. We affirm.
¶ 2 I. BACKGROUND
¶ 3 The underlying facts are undisputed. Officer James Peterson of the Addison Police Department testified that, on June 8, 2017, he and 8 to 10 detectives and uniformed officers conducted an undercover "sting" operation at a hotel to investigate prostitution. The officers rented two rooms with an adjoining door. They searched the Internet for advertisements that were "sexual in nature," and they found one on backpage.com. Officer Peterson called the telephone number listed in the ad and spoke with defendant. The officer and defendant exchanged text messages and arranged to meet at the hotel. Defendant arrived at Officer Peterson's room while the other officers waited in the adjoining room.
¶ 4 Defendant and Officer Peterson exchanged greetings, and defendant sat on the bed. Defendant told Officer Peterson that "it would be $250" for an hour of "exotic massage." She placed a condom on the bed and took off her shirt. Officer Peterson removed all of his clothing and reclined on the bed. Defendant touched Officer Peterson's sex organ, and he signaled the officers next door to storm the room and arrest defendant. Defendant was charged with a misdemeanor violation of section 11-14(a).
¶ 5 Defendant filed a motion to dismiss the charge on constitutional grounds. The trial court denied the motion, citing People v. Williams , 349 Ill. App. 3d 273, 285 Ill.Dec. 318, 811 N.E.2d 1197 (2004), which rejected a similar challenge to section 11-14(a). Following a bench trial, defendant was found guilty, sentenced to 12 months' court supervision, and ordered to pay court costs and to undergo testing for sexually transmitted diseases and HIV. This timely appeal followed.
¶ 6 II. ANALYSIS
¶ 7 A. Levels of Constitutional Scrutiny
¶ 8 Section 11-14(a) provides that
"[a]ny person who knowingly performs, offers or agrees to perform any act of sexual penetration as defined in Section 11-0.1 of this Code for anything of value,
or any touching or fondling of the sex organs of one person by another person, for anything of value, for the purpose of sexual arousal or gratification commits an act of prostitution." 720 ILCS 5/11-14(a) (West 2016).
Defendant concedes that her conduct violated the statute, but she challenges its constitutionality.
¶ 9 Statutes are presumed constitutional, and the burden of rebutting that presumption is on the party challenging the statute to clearly demonstrate a constitutional violation. Napleton v. Village of Hinsdale , 229 Ill. 2d 296, 306, 322 Ill.Dec. 548, 891 N.E.2d 839 (2008). A court has a duty to uphold the constitutionality of a statute when reasonably possible, and, therefore, a court will resolve any doubt in a statute's construction in favor of the statute's validity. Napleton , 229 Ill. 2d at 306-07, 322 Ill.Dec. 548, 891 N.E.2d 839. The constitutionality of a statute is subject to de novo review. People v. Devenny , 199 Ill. 2d 398, 400, 264 Ill.Dec. 105, 769 N.E.2d 942 (2002).
¶ 10 The first step in evaluating a claim that a statute violates a constitutional guarantee is to determine the nature of the right purportedly infringed by the statute. Napleton , 229 Ill. 2d at 307, 322 Ill.Dec. 548, 891 N.E.2d 839 ; People v. Cornelius , 213 Ill. 2d 178, 203, 290 Ill.Dec. 237, 821 N.E.2d 288 (2004). The classification of the right affected dictates the level of scrutiny used to determine whether the statute comports with the constitution. Napleton , 229 Ill. 2d at 307, 322 Ill.Dec. 548, 891 N.E.2d 839.
¶ 11 Courts examining the constitutional validity of a statute will ordinarily apply the rational-basis test, under which a statute will be upheld if it bears a rational relationship to a legitimate legislative purpose and is neither arbitrary nor unreasonable. Napleton , 229 Ill. 2d at 307, 322 Ill.Dec. 548, 891 N.E.2d 839.
¶ 12 In contrast, where a classification is made based upon race or national origin, or the constitutional right is "fundamental," the presumption of constitutionality is weaker and a court must subject the statute to the more rigorous requirements of a strict-scrutiny analysis. Napleton , 229 Ill. 2d at 307, 322 Ill.Dec. 548, 891 N.E.2d 839. To withstand strict scrutiny, the measures employed by the government must be necessary to serve a compelling state interest and must be narrowly tailored thereto, i.e. , the government must use the least restrictive means consistent with the attainment of its goal. Napleton , 229 Ill. 2d at 307, 322 Ill.Dec. 548, 891 N.E.2d 839.
¶ 13 Our supreme court has held that fundamental rights include the expression of ideas (i.e. , freedom of speech), participation in the political process, travel among the states, and privacy with regard to the most intimate and personal aspects of one's life. Napleton , 229 Ill. 2d at 307-08, 322 Ill.Dec. 548, 891 N.E.2d 839.
¶ 14 A third tier of constitutional review, known as intermediate scrutiny, lies between the deferential rational-basis review and strict scrutiny. Intermediate scrutiny extends to legislative classifications based upon gender and illegitimacy and to those that cause certain content-neutral, incidental burdens to speech. To withstand intermediate scrutiny, a legislative enactment must be substantially related to an important governmental interest. Napleton , 229 Ill. 2d at 308, 322 Ill.Dec. 548, 891 N.E.2d 839.
¶ 15 B. Williams
¶ 16 On appeal, defendant classifies her right to engage in "commercial sex" as a fundamental right to privacy with
regard to the most intimate and personal aspects of one's life. She asserts that section 11-14(a) does not withstand strict scrutiny, because the statute is not necessary to serve a compelling state interest and is not narrowly tailored to that interest.
¶ 17 A similar position was presented and rejected in Williams . Williams argued that section 11-14(a) prohibits conduct that is protected under the fourteenth amendment to the United States Constitution. Williams , 349 Ill. App. 3d at 274, 285 Ill.Dec. 318, 811 N.E.2d 1197. Williams asserted that the proscribed conduct is private consensual sexual activity between adults and that it is therefore protected from unwarranted governmental interference. The Appellate Court, Third District, characterized the issue as not involving a fundamental right or a suspect classification, which would be subject to heightened scrutiny. The court thus applied the rational-basis test. Williams , 349 Ill. App. 3d at 274, 285 Ill.Dec. 318, 811 N.E.2d 1197.
¶ 18 The Williams court observed that Illinois courts have previously applied the rational-basis test to the prostitution statute and upheld it as a valid attempt by the State to promote the...
To continue reading
Request your trial