Illinois v. Maness, 191 Ill. 2d 478; 732 N.E.2d 545 (2000)
muggle...@googlemail.com
Appellee.
Docket No. 86463
SUPREME COURT OF ILLINOIS
191 Ill. 2d 478; 732 N.E.2d 545; 2000 Ill. LEXIS 831; 247 Ill. Dec.
490
June 15, 2000, Opinion Filed
PRIOR HISTORY:
[*1] Appeal, Circuit Court. Randolph County. TRIAL JUDGE: Hon. John
M. Goodwin, Jr. CASE NUMBERS: TR997CF207.
DISPOSITION:
Affirmed.
COUNSEL: For People State of Illinois, APPELLANT: Ms. Lisa Anne
Hoffman, Assistant Attorney General, Chicago, IL. State's Attorneys
App. Pros. Mt. Vernon, Mt. Vernon, IL. State's Attorney Randolph
County, Chester, IL.
For Kathy Maness, APPELLEE: Mr. Robert S. Burke, Assistant Appellate
Defender, Mt. Vernon, IL.
JUDGES: JUSTICE BILANDIC delivered the opinion of the court. CHIEF
JUSTICE HARRISON, dissenting. JUSTICES MILLER and McMORROW join in
this dissent.
OPINION BY: BILANDIC
OPINION
JUSTICE BILANDIC delivered the opinion of the court:
This case involves the constitutionality of section 5.1 of the Wrongs
to Children Act ( 720 ILCS 150/5.1 (West 1992)). We hold that section
5.1 is unconstitutionally vague.
STATUTE
Section 5.1 of the Wrongs to Children Act (Act) (720 ILCS 150/1 et
seq. (West 1992)) prohibits the offense of "permitting the sexual
abuse of a child." For purposes of this case, section 5.1 provides:
"A. A parent or step-parent who knowingly allows or permits an act of
criminal sexual abuse or criminal sexual assault as defined in Section
12-13, 12-14, 12-15 or 12-16 of the 'Criminal Code of 1961,' [720 ILCS
5/12-13, 12-14, 12-15, 12-16 (West 1992)], upon his or her child and
fails to take reasonable steps to prevent its commission or future
occurrences of such acts commits the offense of permitting [*2] the
sexual abuse of a child. For purposes of this Section, 'child' means a
minor under the age of 17 years.
B. Any person convicted of permitting the sexual abuse of a child
shall be guilty of a Class A misdemeanor." 720 ILCS 150/5.1 (West
1992).Relevant to the facts of this case is the underlying provision
of the criminal sexual abuse statute, section 12-15 of the Criminal
Code of 1961, which provides that "[t]he accused commits criminal
sexual abuse if he or she commits an act of sexual penetration or
sexual conduct with a victim who was at least 13 years of age but
under 17 years of age and the accused was less than 5 years older than
the victim." 720 ILCS 5/12-15(c) (West 1998). Criminal sexual abuse is
a Class A misdemeanor. 720 ILCS 5/12-15(d) (West 1998).
In light of the different versions of section 5.1 that have been in
effect, we must as a preliminary matter clarify our reasons for
quoting the aforementioned version of the statute. The permitting
sexual abuse of a child statute, section 5.1, was amended by Public
Act 88-680 to include "legal guardian[] or other person having [*3]
custody of a child" to the list of those subject to the statute, and
to add a provision to include within its scope those designated who
"knowingly permit[], induce[], promote[], or arrange[] for the child
to engage in prostitution as defined in Section 11-14 of the Criminal
Code of 1961 [720 ILCS 5/11-14 (West 1998)]." See Pub. Act 88-680,
art. 50, § 50-10, eff. January 1, 1995. Public Act 88-680 also
elevated the offense of permitting sexual abuse of a child from a
Class A misdemeanor to a Class 1 felony. Pub. Act 88-680, art. 50, §
50-10, eff. January 1, 1995. Public Act 88-680, however, is void ab
initio because it was enacted in violation of the single subject rule
of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)).
People v. Cervantes, 189 Ill. 2d 80, 243 Ill. Dec. 233, 723 N.E.2d 265
(1999).
Section 5.1 was also amended by Public Act 89-428 to add the offense
of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1
(West 1998)) to the list of underlying offenses. See Pub. Act 89-428,
art. 2, § 265, eff. December 13, 1995. Public Act 89-428, however,
[*4] is void ab initio because it too was enacted in violation of the
single subject rule of the Illinois Constitution. Johnson v. Edgar,
176 Ill. 2d 499, 224 Ill. Dec. 1, 680 N.E.2d 1372 (1997). This
amendment was later reenacted in Public Act 89-462. See Pub. Act
89-462, art. 2, § 265, eff. May 29, 1996. This amendment is not
relevant for purposes of this case. Section 5.1, as set forth above,
reflects the version of this statute that is applicable to this case.
FACTS
On November 19, 1997, defendant, Kathy Maness, was charged in the
circuit court of Randolph County with the offense of permitting the
sexual abuse of a child. See 720 ILCS 150/5.1 (West 1992). The
charging instrument alleged that defendant, the mother of Lynlee Jo
Otten, a minor under the age of 17 years, knowingly allowed or
permitted Leonard A. Owens, Jr. to commit an act of criminal sexual
abuse upon Lynlee, "in that Leonard A. Owens, Jr. committed an act of
sexual penetration with Lynlee Jo Otten, who was at least 13 years of
age, but under 17 years of age when the act was committed, in that
Leonard A. Owens, Jr. placed his penis in the vagina of Lynlee Jo
Otten, [*5] and Leonard A. Owens, Jr. was less than five years older
than Lynlee Jo Otten, and the defendant did fail to take reasonable
steps to prevent its commission." Defendant was alleged to have
committed this offense in Randolph County, Illinois, where she and
Lynlee lived, between the months of January and August of 1997.
Lynlee Otten was born on October 28, 1983. Leonard Owens was born on
February 25, 1979. They started dating each other in August 1996, and
began having sexual intercourse in December 1996. Between December
1996, and approximately April 1997, when the pair terminated their
relationship, Lynlee and Leonard had sexual intercourse 15 to 20
times.
At some point after the sexual relationship began, Lynlee told
defendant, her mother, that she and Leonard were having sexual
intercourse. Defendant confronted both Lynlee and Leonard about the
sexual relationship, expressed her disapproval, and discussed the
implications of sexual intercourse.
Defendant obtained birth control pills for Lynlee and allowed Leonard
on numerous occasions to spend the night at the family home. Defendant
was aware that, on some of these occasions, Leonard slept in Lynlee's
bedroom and had sexual intercourse [*6] with Lynlee. Defendant was
also aware that, during the relevant time period, Leonard was 17 years
old, and Lynlee was 13 years old. The record shows that Leonard pled
guilty to criminal sexual abuse in connection with the facts of this
case. See 720 ILCS 5/12-15 (West 1998).
According to an investigative report from the Department of Children
and Family Services (DCFS), defendant stated that she did not know
what steps to take to prevent the sexual relationship between Lynlee
and Leonard. Defendant further stated that Leonard "was a nice boy and
was better than most of the younger boys Lynlee was hanging around
with," and that "it was safer for Lynlee to be having sex with
[Leonard] at home than [with] somebody else out of the home
environment." The DCFS report discloses that defendant "feels she has
some control of the daughter's sexual activities if it occurs in the
home."
Defendant filed a motion to dismiss the charge, arguing that section
5.1 is unconstitutionally vague as to what constitutes "reasonable
steps" to prevent the commission of future acts of sexual abuse.
According to defendant, the statute exposes any parent to prosecution
if a [*7] child "becomes pregnant, sires a child, asks for birth
control devices, or seeks any counsel from the teenager's parents
regarding sexual activity." Defendant also argued that section 5.1 of
the Act, both on its face and as applied in this case, violates
defendant's fundamental liberty right to raise her child free from
undue state influence as guaranteed by the fourteenth amendment to the
United States Constitution and article I, section 2, of the Illinois
Constitution of 1970.
Following a hearing, the circuit court, in a verbal order, granted
defendant's motion to dismiss the charge. The transcript of the order
reveals that the circuit court found that section 5.1 "may implicate
first amendment concerns of the defendant or of a parent or guardian
to effectively address the problem of underage teenage sex in their
particular family situation." The circuit court also held that section
5.1 is unconstitutionally vague as to what constitutes "reasonable
steps" to prevent the commission of future acts of sexual abuse.
The State appealed directly to this court. Because the circuit court
declared section 5.1 of the Act unconstitutional on its face, this
court has jurisdiction over this [*8] appeal pursuant to Supreme
Court Rule 603 (134 Ill. 2d R. 603).
ANALYSIS
We review de novo a circuit court's holding with respect to the
constitutionality of a statute. Russell v. Department of Natural
Resources, 183 Ill. 2d 434, 441, 233 Ill. Dec. 782, 701 N.E.2d 1056
(1998). Statutes carry a strong presumption of constitutionality, and
the party challenging the constitutionality of a statute bears the
burden of rebutting this presumption. Russell, 183 Ill. 2d at 441.
Here, that party is defendant, who for the reasons set forth below has
met this burden.
A cornerstone of our jurisprudence is that no person shall be deprived
of life, liberty, or property without due process of law. U.S. Const.,
amends. V, XIV; Ill. Const. 1970, art. I, § 2. Due process of law
requires that the proscriptions of a criminal statute be clearly
defined. City of Chicago v. Morales, 177 Ill. 2d 440, 448, 227 Ill.
Dec. 130, 687 N.E.2d 53 (1997), aff'd, 527 U.S. 41, 144 L. Ed. 2d 67,
119 S. Ct. 1849 (1999). To satisfy the vagueness doctrine, a criminal
statute must meet two requirements. First, the statute must provide a
person [*9] of ordinary intelligence a reasonable opportunity to
distinguish between lawful and unlawful conduct so that he or she may
act accordingly. Russell, 183 Ill. 2d at 442; Morales, 177 Ill. 2d at
449. " 'No one may be required at peril of life, liberty or property
to speculate as to the meaning of penal statutes. All are entitled to
be informed as to what the State commands or forbids.' " Morales, 177
Ill. 2d at 450, quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 83
L. Ed. 888, 890, 59 S. Ct. 618, 619 (1939). Thus, a statute is
unconstitutionally vague "if its terms are so indefinite that 'persons
of common intelligence must necessarily guess at its meaning and
differ as to its application.' " Fagiano v. Police Board, 98 Ill. 2d
277, 282, 74 Ill. Dec. 525, 456 N.E.2d 27 (1983), quoting Polyvend,
Inc. v. Puckorius, 77 Ill. 2d 287, 299-300, 32 Ill. Dec. 872, 395 N.E.
2d 1376 (1979).
Second, the statute must adequately define the offense in order to
prevent arbitrary and discriminatory enforcement. Russell, 183 Ill. 2d
at 442; Morales, 177 Ill. 2d at 449. [*10] The statute must provide
explicit standards to regulate the discretion of governmental
authorities who apply the law. Russell, 183 Ill. 2d at 442; Morales,
177 Ill. 2d at 456. If the legislature fails to provide minimal
guidelines to govern law enforcement, a criminal law "may permit 'a
standardless sweep [that] allows policemen, prosecutors, and juries to
pursue their personal predilections.' " Kolender v. Lawson, 461 U.S.
352, 358, 75 L. Ed. 2d 903, 909, 103 S. Ct. 1855, 1858 (1983), quoting
Smith v. Goguen, 415 U.S. 566, 575, 39 L. Ed. 2d 605, 613, 94 S. Ct.
1242, 1248 (1974).
Section 5.1 does not satisfy these requirements. To be charged under
section 5.1, a parent must knowingly allow or permit an enumerated act
of criminal sexual abuse or sexual assault to be committed upon his or
her child, and fail to take "reasonable steps" to prevent its
commission or future occurrences. 720 ILCS 150/5.1 (West 1992). It is
unclear what the "reasonable steps" are that a parent must take in
order to comply with the statute. The facts of this case demonstrate
this uncertainty. As the record reveals, [*11] defendant's 13-year-
old daughter confided in defendant that she was having sexual
intercourse with her 17-year-old boyfriend. At this point, defendant,
as a parent, took steps. She confronted her daughter and her
daughter's boyfriend about the sexual relationship, expressed her
disapproval, and discussed the implications of sexual intercourse. The
statute does not set forth what more the statute commands.
We recognize that defendant obtained birth control pills for her
daughter and allowed her daughter's boyfriend to spend the night at
the family home. Defendant was aware that at times her daughter and
her daughter's boyfriend slept together in her daughter's bedroom and
had sexual intercourse with each other. Defendant, however, stated
that she did not know what steps to take to prevent the sexual
relationship between her daughter and her daughter's boyfriend, and
that she felt she had more control over her daughter's sexual
activities if they occurred in the home. We are in no position to
determine whether defendant's actions constituted "reasonable steps"
under the statute. We find that section 5.1 leaves a parent to
speculate as to what the statute commands.
Furthermore, section 5.1 risks arbitrary and discriminatory
enforcement. As we have discussed, the statute does not set forth
standards to regulate what constitute "reasonable steps." There are no
guidelines for authorities to follow in evaluating what "reasonable
steps" are from case to case. This is certainly not a decision that
should be left to the "personal predilections" of the governmental
authorities who must apply section 5.1. Section 5.1 enumerates several
underlying offenses. Regardless of the underlying offense, it is
unclear what a parent must do to take "reasonable steps" under the
statute, and authorities remain without standards to guide their
enforcement of section 5.1.
We note that, in reviewing whether a statute is vague, a court may
also consider the legislative purpose and the evil that the statute is
designed to remedy. People v. R.G., 131 Ill. 2d 328, 361, 137 Ill.
Dec. 588, 546 N.E.2d 533 (1989). The legislative history is silent as
to the purposes underlying the need for section 5.1. The legislative
debates concerning the bill that created the offense of permitting the
sexual abuse of a child contain only general references to the name of
the offense. We therefore [*13] have no information to help define
what the statute commands. A person of ordinary intelligence is left
to guess at its meaning and disagree as to its application. Due
process of law requires that the proscriptions of a criminal statute
be clearly defined. Section 5.1 fails to satisfy this requirement.
The dissent states that the "majority has not cited any authority for
the proposition that a 'reasonableness' standard renders a criminal
statute unconstitutionally vague, and I see no basis for reaching that
conclusion with respect to section 5.1." Slip op. at 10 (Harrison,
C.J., dissenting, joined by Miller and McMorrow, JJ.). The dissent
then proceeds to discuss several areas of law where a reasonableness
standard is used. We, of course, do not suggest that a reasonableness
standard renders a statute unconstitutionally vague. Rather, we hold
that the statute at issue in this case, section 5.1, is
unconstitutionally vague because it is not clear what the "reasonable
steps" are that a parent must take in order to avoid criminal
prosecution thereunder.
The dissent further contends that there "are numerous instances in
which application of the statute would be proper," and then purports
[*14] to give an example. Slip op. at 10 (Harrison, C.J., dissenting,
joined by Miller and McMorrow, JJ.). The dissent's reasoning is
flawed. The legal test for whether a statute withstands a vagueness
challenge is well settled. To satisfy the vagueness doctrine, a
criminal statute must provide both fair warning of the prohibited
conduct and explicit guidelines for those who must apply the law. See,
e.g., Morales, 177 Ill. 2d at 449. Section 5.1 fails to meet this
test. Section 5.1 requires a parent who knowingly allows an enumerated
act to be committed upon his or her child to take "reasonable steps"
to prevent the commission of the enumerated act. However, it is not
clear what the "reasonable steps" are that a parent must take in order
to comply with the statute and avoid criminal prosecution. The
dissent's answer, that "a mother who gave express permission to one of
her adult male friends to have sex with her 12-year-old daughter would
clearly fall within the statute's prohibitions" (slip op. at 10
(Harrison, C.J., dissenting, joined by Miller and McMorrow, JJ.)),
begs the question of what a parent must in fact do in the first
instance to comply with section 5.1's [*15] requirement of taking
"reasonable steps" to prevent the enumerated act. The statute
criminally punishes all parents who knowingly permit an enumerated act
to occur and fail to take "reasonable steps" to prevent the act. Do
"reasonable steps" mean that the parent must call the police, ban the
offender from the home, send the child away, speak with the offender?
The point is that, regardless of the underlying conduct, section 5.1
leaves a parent to speculate as to what the statute commands.
The dissent also concludes that defendant took "no steps" to prevent
the abuse. Slip op. at 11 (Harrison, C.J., dissenting, joined by
Miller and McMorrow, JJ.). The record reveals otherwise. Defendant
confronted her daughter and her daughter's boyfriend about the sexual
relationship, expressed her disapproval, and discussed the
implications of sexual intercourse. What the dissent really appears to
be saying is that defendant did not do enough. However, neither
section 5.1, nor the dissent for that matter, specifies what more
defendant must have done to avoid criminal prosecution.
CONCLUSION
We hold that section 5.1 is unconstitutionally vague. We therefore
affirm the circuit court's order dismissing [*16] the charge against
defendant. Consequently, we need not determine whether section 5.1
unconstitutionally infringes upon defendant's fundamental right to
raise her child. We also note that, because the offense of permitting
the sexual abuse of a child is no longer a Class 1 felony (see People
v. Cervantes, 189 Ill. 2d 80, 243 Ill. Dec. 233, 723 N.E.2d 265
(1999)), we need not address defendant's argument raised in this court
that applying section 5.1 to her conduct violates the constitutional
prohibition against disproportionate penalties.
Affirmed.
DISSENT BY: HARRISON
DISSENT
CHIEF JUSTICE HARRISON, dissenting:
Section 5.1 of the Wrongs to Children Act (720 ILCS 150/5.1 (West
1992)) imposes on parents a duty to take "reasonable steps" to prevent
the commission or future occurrence of criminal sexual abuse of their
children. Although my colleagues find this standard problematic, I do
not believe that it renders the statute unconstitutionally vague. A
penal statute comports with due process so long as the statute's
prohibitions are sufficiently definite, when measured by common
understanding and practices, to give a person of ordinary [*17]
intelligence fair warning as to what conduct is prohibited, and the
statute marks boundaries sufficiently distinct for judges and juries
fairly to administer the law in accordance with the intent of the
legislature. People v. Hickman, 163 Ill. 2d 250, 256-57, 206 Ill. Dec.
94, 644 N.E.2d 1147 (1994).
Section 5.1 satisfies these requirements. While the statute does not
specifically enumerate what constitute "reasonable steps" to prevent
the commission or future occurrence of criminal sexual abuse, it is
not alone in this regard. A similar standard has been employed
successfully in many other areas of the law. For example, section 1(D)
(m) of the Adoption Act (750 ILCS 50/1(D)(m) (West 1998)) provides
that where a child has been removed from a parent by the State, the
parent's failure to make "reasonable efforts" to correct the
conditions that were the basis for removal of the child is grounds for
finding the parent unfit. As a matter of common law, hospitals and
physicians must take "reasonable steps" to avoid a foreseeable tragedy
in their facility. See Winger v. Franciscan Medical Center, 299 Ill.
App. 3d 364, 375, 233 Ill. Dec. 748, 701 N.E.2d 813 (1998). [*18]
Under the Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West
1998)), law enforcement officials have a duty to promptly undertake
"all reasonable steps" to assist persons protected by the Act.
Calloway v. Kinkelaar, 168 Ill. 2d 312, 326, 213 Ill. Dec. 675, 659
N.E.2d 1322 (1995). Tort law dictates that if an accident is
reasonably foreseeable, a party is charged with responsibility to take
"reasonable steps" to avoid it. See Cannon v. Commonwealth Edison Co.,
250 Ill. App. 3d 379, 384-85, 190 Ill. Dec. 183, 621 N.E.2d 52 (1993).
Whether a party has acted reasonably will necessarily depend on the
facts and circumstances of each particular case. What action is
reasonable under the circumstances is not always easy to assess.
Experience has shown, however, that when dealing with diverse and
unpredictable situations, a "reasonableness" standard is the best
measure for judging human conduct. Accordingly, the "reasonable man"
standard has become a fundamental part of our jurisprudence. We
constantly call upon citizens and law enforcement officials to follow
and apply this standard. Again, examples are easy to summon. [*19]
"Reasonableness" plays a pivotal role in assessing the legality of
police stops. People v. Gonzalez, 184 Ill. 2d 402, 422-24, 235 Ill.
Dec. 26, 704 N.E.2d 375 (1998). It is integral to the law of self-
defense (People v. Morgan, 187 Ill. 2d 500, 533, 241 Ill. Dec. 552,
719 N.E.2d 681 (1999)) and the law governing trade secrets ( 765 ILCS
1065/2(d) (West 1998); Jackson v. Hammer, 274 Ill. App. 3d 59, 66-67,
210 Ill. Dec. 614, 653 N.E.2d 809 (1995)).
The majority has not cited any authority for the proposition that a
"reasonableness" standard renders a criminal statute
unconstitutionally vague, and I see no basis for reaching that
conclusion with respect to section 5.1. Even if one could hypothesize
circumstances in which application of the statute would be uncertain,
that is not the test. A statute is unconstitutionally vague on its
face only if it is incapable of any valid application (People v.
Wawczak, 109 Ill. 2d 244, 249, 93 Ill. Dec. 378, 486 N.E.2d 911
(1985)), i.e., where " 'no set of circumstances exists under which the
[statute] would be valid.' " In re C.E., 161 Ill. 2d 200, 211, 204
Ill. Dec. 121, 641 N.E.2d 345 (1994), [*20] quoting United States v.
Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095,
2100 (1987).
Section 5.1 is not infirm under this standard. There are numerous
instances in which application of the statute would be proper. For
example, a mother who gave express permission to one of her adult male
friends to have sex with her 12-year-old daughter would clearly fall
within the statute's prohibitions.
Because there are valid applications for the statute and because the
law does not involve first amendment rights, the determination as to
whether the statute is constitutionally infirm must be made in the
factual context of this particular case. Russell v. Department of
Natural Resources, 183 Ill. 2d 434, 442, 233 Ill. Dec. 782, 701 N.E.2d
1056 (1998). Maness does not have standing to argue that the statute
might be vague as applied to someone else. See People v. Jihan, 127
Ill. 2d 379, 385, 130 Ill. Dec. 422, 537 N.E.2d 751 (1989). A
defendant may be prosecuted under a statute without violating her due
process rights if her conduct clearly falls within the statutory
proscription even though the statute may be vague as to other [*21]
conduct. People v. Anderson, 148 Ill. 2d 15, 28, 169 Ill. Dec. 288,
591 N.E.2d 461 (1992).
What Maness is alleged to have done in this case clearly falls within
the prohibitions of section 5.1 of the Wrongs to Children Act. Maness
knowingly permitted Leonard Owens, Jr., a 17-year-old boy, to
repeatedly commit criminal sexual abuse of her 13-year-old daughter.
Although Maness confronted the couple about their activities,
counseled them and expressed her disapproval, the record also shows
that she facilitated the criminal sexual abuse by allowing Owens to
sleep with her daughter in her daughter's bedroom. When Owens had sex
with Maness' daughter, it was usually in the bedroom and usually while
Maness and her husband were at home. Maness was aware of this sexual
activity and took no steps to stop it. Her view was that if her
daughter was going to have sex with Owens, it was safer if she did so
at home where Maness had some control.
Maness' contention that she was uncertain as to the law's application
is unpersuasive. While persons of ordinary intelligence may sometimes
be left to speculate as to what constitute "reasonable steps" to
prevent the commission of criminal [*22] sexual abuse, this is not
one of those situations. Maness is not being prosecuted because of how
she counseled her daughter regarding her sexuality or because she
obtained birth control medication and prophylactics for her daughter
to use. Maness' problem is that the law in Illinois prohibits 17-year-
olds from having sex with 13-year- olds, and Maness repeatedly and
expressly allowed a 17-year-old to have sex with her daughter in her
house. Any person of ordinary intelligence would understand that such
conduct constitutes a failure to take "reasonable steps" to prevent
criminal sexual abuse within the meaning of the law.
There is likewise no merit to Maness' contention that the statute is
invalid because it unduly infringes on a parent's right to raise her
child. Under the fourteenth amendment, parents have a "fundamental
liberty interest *** in the care, custody, and management of their
child[ren,]" with which the government may not interfere unduly.
Santosky v. Kramer, 455 U.S. 745, 753-54, 71 L. Ed. 2d 599, 606, 102
S. Ct. 1388, 1394-95 (1982). Parental autonomy, however, is not
absolute. See Lehman v. Stephens, 148 Ill. App. 3d 538, 547, 101 Ill.
Dec. 736, 499 N.E.2d 103 (1986). [*23] In matters concerning child
abuse and neglect, a parent's rights yield to the state's interest in
protecting its children. American Federation of State, County &
Municipal Employees v. Department of Central Management Services, 173
Ill. 2d 299, 319, 671 N.E.2d 668, 219 Ill. Dec. 501 (1996).
The right to be a parent does not encompass the right to abuse one's
child or to allow one's child to be abused. If Maness had knowingly
allowed Owens to inject her daughter with heroin and provided the
couple with a place in her home where the drugs could be injected,
there would be no question that Maness could be prosecuted for child
endangerment (720 ILCS 5/12-21.6 (West 1998)) or worse, without
offending the constitution. The result should not be different because
the abuse involves illegal sex rather than illegal drugs.
For the foregoing reasons, the judgment of the circuit court should be
reversed and the cause should be remanded for further proceedings. I
therefore dissent.
JUSTICES MILLER and McMORROW join in this dissent.