People v. Haywood

• Decision Date: 21 September 1987
• Docket Number: Nos. 63082,63540 and 63541,63539,s. 63082
• Citation: 515 N.E.2d 45,113 Ill.Dec. 236,118 Ill.2d 263
• Parties: , 113 Ill.Dec. 236 The PEOPLE of the State of Illinois, Appellant, v. John HAYWOOD et al., Appellees.
• Court: Illinois Supreme Court

Page 45

515 N.E.2d 45

118 Ill.2d 263, 113 Ill.Dec. 236

The PEOPLE of the State of Illinois, Appellant, v. John HAYWOOD et al., Appellees.

Nos. 63082, 63539, 63540 and 63541.

Supreme Court of Illinois.

Sept. 21, 1987.

Rehearing Denied Dec. 1, 1987.

Neil F. Hartigan, Atty. Gen., Chicago, Robert W. Matoush, Salem, Don Sheafor, State's Attys., Vandalia, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, State's Attorneys Appellate Prosecutor, Mt. Vernon, for appellant.

Harold H. Pennock, Jr., Hodson, Jones & Pennock, Ltd., Centralia, for appellee John Haywood.

George H. Huber, Richard O. Habermann, Vandalia, for appellee Rhodes.

Daniel M. Kirwan, Deputy Defender, Dan W. Evers, Asst. Defender, Office of the State Appellate Defender, Fifth Judicial Dist., Mount Vernon, for appellees Donald R. Russell and Robert Allen Garland.

Judy L. Hogan, Staff Atty., Illinois Coalition Against Sexual Assault, Springfield, for amicus curiae.

Justice WARD delivered the opinion of the court:

The defendants in these consolidated appeals were individually charged with the offenses of criminal sexual assault and aggravated criminal sexual assault in violation of sections 12-13 and 12-14 of the Illinois Criminal Code of 1961 (Ill.Rev.Stat.1985, ch. 38, pars. 12-13, 12-14). In each case the circuit court dismissed the charges, holding that the statutes upon which the defendants were charged were unconstitutionally vague and overbroad. The State appealed each dismissal directly to this court under our Rule 603 (107 Ill.2d R. 603), and we have consolidated the appeals.

Defendant John Haywood was charged in Marion County in an information of two counts with aggravated criminal sexual assault (Ill.Rev.Stat.1985, ch. 38, par. 12-14). Count I was brought under section 12-14(a)(1) of the Criminal Code and alleged that the defendant, using a dangerous weapon, to wit, a knife, "by the use of force * * * placed his penis into the vagina of [the complainant]." Count II charged the defendant under section 12-14(a)(2), alleging that the defendant caused bodily harm to the victim in committing the offense of criminal sexual assault.

Defendants Rhodes, Russell and Garland were individually charged by indictment in Fayette County with one count of aggravated criminal sexual assault under section 12-14(a)(2) and in a second count with the lesser included offense of criminal sexual assault under section 12-13(a)(1). Garland was also charged in a third count with a second offense of criminal sexual assault, which arose out of an incident separate from that alleged in counts I and II. Each count of the indictments alleged that the defendant "by the use of force * * * placed his penis in the vagina of [the complainant]."

Prior to trial each defendant filed a motion to dismiss the charges, claiming that the statutory definitions of criminal sexual assault and aggravated criminal sexual assault are so vague and overbroad that they violate the constitutional guarantees of due process (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2). The circuit court of Marion County granted defendant Haywood's motion, holding the entire Criminal Sexual Assault Act, sections 12-12 through 12-18 of the Criminal Code (Ill.Rev.Stat.1985, ch. 38, pars. 12-12 through 12-18), unconstitutional. Following a motion by the State to reconsider, the court modified its judgment, limiting its holding of unconstitutionality to sections 12-13(a)(1) and 12-14(a)(2). The circuit court of Fayette County dismissed the indictments against Russell, Garland and Rhodes on the same grounds that the circuit court of Marion County relied on, vagueness and overbreadth.

Criminal sexual assault is defined in section 12-13(a)(1) of the Criminal Code, which inter alia provides:

"The accused commits criminal sexual assault if he or she:

(1) commits an act of sexual penetration by the use of force or threat of force * * *." Ill.Rev.Stat.1985, ch. 38, par. 12-13(a)(1).

"Sexual penetration" is defined as:

"[A]ny contact, however slight, between the sex organ of one person and 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, including but not limited to cunnilingus, fellatio or anal penetration * * *." Ill.Rev.Stat.1985, ch. 38, par. 12-12(f).

"Force or threat of force" is defined in section 12-12(d) as:

"The use of force or violence, or the threat of force or violence, including but not limited to the following situations:

(1) when the accused threatens to use force or violence on the victim or on any other person, and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat; or

(2) when the accused has overcome the victim by use of superior strength or size, physical restraint or physical confinement." Ill.Rev.Stat.1985, ch. 38, par. 12-12(d).

Relatedly, section 12-17 of the Act provides that consent shall be a defense to any charge under section 12-13 through section 12-16 "where force or threat of force is an element of the offense."

"Consent" is defined as:

"[A] freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent." Ill.Rev.Stat.1985, ch. 38, par. 12-17.

The defendants claim that section 12-13(a)(1), defining the offense of criminal sexual assault, is unconstitutionally vague on its face because the statute fails to adequately specify the conduct it proscribes and fails to provide an ascertainable standard for its enforcement. Specifically, they contend that one cannot determine from the definition of "force or the threat of force" set out in section 12-12(d) of the Code the nature of the force that is required for the commission of the offense. They say that the offense defined in section 12-13(a)(1) is in derogation of the common law offense of rape. Thus, the statute must be strictly construed and "force" must be literally interpreted without resort to any extrinsic considerations. The defendants assert that "force" must therefore be construed in its broadest sense possible and include every notion of force imaginable. Based on this literal and completely broad interpretation of the statute, the defendants conclude that the statute contains no standard to determine the nature or quality of force required to constitute an offense under the statute.

It is basic that due process requires that the proscriptions of a penal statute be clearly defined. (Grayned v. City of Rockford (1972), 408 U.S. 104, 108, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222, 227; People v. Wawczak (1985), 109 Ill.2d 244, 248, 93 Ill.Dec. 378, 486 N.E.2d 911; People v. Caffrey (1983), 97 Ill.2d 526, 530, 74 Ill.Dec. 30, 455 N.E.2d 60.) "[I]mpossible levels of specificity" are not required (97 Ill.2d 526, 530, 74 Ill.Dec. 30, 455 N.E.2d 60; People v. Dednam (1973), 55 Ill.2d 565, 567-68, 304 N.E.2d 627), but a penal statute must convey "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices" (United States v. Petrillo (1947), 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877, 1883; City of Decatur v. Kushmer (1969), 43 Ill.2d 334, 336, 253 N.E.2d 425). The statute, too, must provide definite standards, so as to avoid arbitrary and discriminatory enforcement and application by police officers, judges and juries. People v. Bales (1985), 108 Ill.2d 182, 188, 91 Ill.Dec. 171, 438 N.E.2d 517; People v. Garrison (1980), 82 Ill.2d 444, 453, 45 Ill.Dec. 132, 412 N.E.2d 483.

"It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand." (United States v. Mazurie (1975), 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706, 713; see also People v. Bales (1985), 108 Ill.2d 182, 189, 91 Ill.Dec. 171, 438 N.E.2d 517.) If, however, the statute is challenged on the ground that it is unconstitutionally vague on its face, it will be held unconstitutional for vagueness only if it is "incapable of any valid application." (Steffel v. Thompson (1974), 415 U.S. 452, 474, 94 S.Ct. 1209, 1223, 39 L.Ed.2d 505, 523; Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 497, 102 S.Ct. 1186, 1192, 71 L.Ed.2d 362, 371; People v. Wawczak (1985), 109 Ill.2d 244, 249, 93 Ill.Dec. 378, 486 N.E.2d 911.) That is, the statute will be considered vague "in the sense that no standard of conduct is specified at all." Coates v. City of Cincinnati (1971), 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214, 217.

The statutes questioned here, however, cannot be considered vague unless "force" is literally interpreted as to mean every possible use of force. Common sense tells us that the legislature, in enacting the Criminal Sexual Assault Act, did not intend the creation of a new definition of force and one so broad that it would include all conceivable notions of the word. It cannot be presumed that the General Assembly, in legislating, intended obscurity, or "to override common sense." (United States v. Brown (1948), 333 U.S. 18, 25, 68 S.Ct. 376, 380, 92 L.Ed. 442, 448; People v. Steppan (1985), 105 Ill.2d 310, 316, 85 Ill.Dec. 495, 473 N.E.2d 1300.) Furthermore, the defendants' interpretation is inconsistent with established principles of statutory construction. The statute should be given a construction that is consistent with the purpose and policies of the statute.

In construing a statute, it is of course fundamental that a court is to "ascertain and give effect to the legislative intent." (People v. Maya (1985), 105 Ill.2d 281, 287, 85 Ill.Dec. 482, 473 N.E.2d 1287; City of Springfield v. Board of Election Commissioners (1985), 105 Ill.2d...