{ "id": 3502735, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLAN E. BARTAY, Defendant-Appellant", "name_abbreviation": "People v. Bartay", "decision_date": "1986-12-04", "docket_number": "No. 4\u201486\u20140112", "first_page": "130", "last_page": "133", "citations": [ { "type": "official", "cite": "150 Ill. App. 3d 130" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "424 N.E.2d 663", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 743", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499855 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0743-01" ] }, { "cite": "246 N.E.2d 256", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "42 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2849499 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/42/0159-01" ] }, { "cite": "148 Ill. App. 3d 888", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3643043 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0888-01" ] }, { "cite": "481 N.E.2d 676", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3134711 ], "opinion_index": 0, "case_paths": [ "/ill-2d/107/0062-01" ] }, { "cite": "497 N.E.2d 1212", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 218", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604197 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0218-01" ] } ], "analysis": { "cardinality": 479, "char_count": 8260, "ocr_confidence": 0.77, "pagerank": { "raw": 1.746558327678862e-07, "percentile": 0.7078495696081123 }, "sha256": "c88158c08822a397b7a713033abc52cb53c6a04fc91caec83fbc3122679a5965", "simhash": "1:b12e8915790631de", "word_count": 1386 }, "last_updated": "2023-07-14T17:09:44.674340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLAN E. BARTAY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREEN\ndelivered the opinion of the court:\nAfter a trial by jury in the circuit court of Adams County, defendant, Allan E. Bartay, was convicted of the offenses of aggravated criminal sexual assault and home invasion. He was subsequently sentenced to concurrent sentences of 15 years\u2019 imprisonment. He appeals, contending that sections 12 \u2014 13 and 12 \u2014 14 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, pars. 12 \u2014 13, 12\u2014 14), respectively, defining the offenses of criminal sexual assault and aggravated sexual assault, \u201care so unreasonable in their definitions and applications as to violate due process.\u201d He also maintains that the trial court erred in sentencing in refusing to consider the fact that he had been intoxicated at the time of the offense to be a mitigating factor. We disagree and affirm.\nDefendant\u2019s contention of unconstitutionality is based upon the fact that, under section 12 \u2014 14 of the Code, aggravated criminal sexual assault is a Class X felony, while under section 12 \u2014 16 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 16), aggravated criminal sexual abuse is a Class 2 felony. The predicate offenses for a conviction of those two offenses are criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 13) and criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 15), the essence of which are acts of \u201csexual penetration,\u201d and \u201csexual conduct\u201d respectively, which are, in turn, defined as follows:\n\u201c(e) \u2018Sexual conduct\u2019 means any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.\n(f) \u2018Sexual penetration\u2019 means any 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. Evidence of emission of semen is not required to prove sexual penetration.\u201d (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, pars. 12 \u2014 12(e), (f).\nDefendant maintains that there is no substantive difference between \u201csexual conduct\u201d and \u201csexual penetration\u201d because both occur merely upon making contact by the accused with forbidden areas of the body of the victim. However, treating offenses based on \u201csexual penetration\u201d more severely is justified because \u201csexual penetration\u201d requires contact between: (1) sex organs; (2) the sex organ and the mouth or anus; or (3) some slight intrusion by one person into the sex organ or anus of another. The requirements for \u201csexual contact\u201d are met by mere \u201c touching or fondling.\u201d\nDefendant also contends that if greater penalties are to be imposed for one type of conduct rather than the other, the greater penalties should be imposed for offenses based on \u201csexual conduct\u201d because it requires that the conduct be intentional or knowing and for the purpose of sexual arousal or gratification. However, the offenses based upon penetration cannot be considered to be absolute liability offenses. Accordingly, under section 4 \u2014 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 4 \u2014 3) the mental states of knowledge or intent would appear to be necessary for \u201csexual penetration\u201d to occur. We are in agreement with People v. Burmeister (1986), 147 Ill. App. 3d 218, 497 N.E.2d 1212, which makes a similar analysis of this question. We also note that requiring knowledge of the act and intent to arouse to be an element of \u201csexual conduct\u201d but not for \u201csexual penetration\u201d is logical because the touching or apparent fondling which is a part of that offense is likely to occur by accident, negligence, or for a proper purpose, while penetration would seldom happen under such circumstances.\nDefendant attempts to draw an analogy between the situation here and that in People v. Wick (1985), 107 Ill. 2d 62, 481 N.E.2d 676, where section 20 \u2014 1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 20 \u2014 1.1) was declared to be invalid as an unreasonable exercise of the police power because it provided for a greater penalty than section 20 \u2014 1 of the Act (Ill. Rev. Stat. 1981, ch. 38, par. 20 \u2014 1), providing for the offense of simple arson, although the physical conduct upon which the two offenses were based was the same and the mens rea required for simple arson was greater. Here, as we have indicated, it is doubtful that the mens rea for the offense of aggravated criminal sexual abuse, which draws the lesser penalty, is greater than that for aggravated criminal sexual assault. In any event, the assault offense involves a physical act of a contact between sex organs or a sex organ and a mouth or anus or an intrusion, all of which the legislature could properly have considered to be a more serious impropriety than the mere touching or fondling required for criminal sexual abuse.\nThis court has recently upheld the constitutionality of section 12\u2014 14 when it was attacked by a slightly different due process argument. (People v. Server (1986), 148 Ill. App. 3d 888.) Section 12 \u2014 14 also meets constitutional muster when faced with the arguments presented by defendant here.\nIn explaining at sentencing the seriousness of defendant\u2019s attack on an 82-year-old female victim, the court stated:\n\u201cSo should I consider as a mitigating circumstance the fact that you allowed your own body to become polluted with alcohol to the extent that you would commit such crimes? I don\u2019t know that that\u2019s appropriate either. If so, then everybody who commits a crime would have an excuse built in to walk away with a lenient treatment. You\u2019re an adult now, Allan, you\u2019re responsible for your own conduct, and so far as the Court\u2019s concerned what you allowed yourself to do that night is nobody\u2019s fault but your own, and you can profess your innocence from now until the end of time, but I\u2019m satisfied that the jury\u2019s verdicts were based on solid evidence. They weren\u2019t hastily arrived at. And as a result of that you must pay a penalty.\u201d\nThe offense of aggravated criminal sexual assault is a Class X felony for which imprisonment of not less than 6 nor more than 30 years can be imposed. The sentences of concurrent terms of 15 years which were imposed were not severe for that offense. Section 5 \u2014 5\u2014 3.1(aX4) of the Unified Code of Corrections does state that \u201csubstantial grounds tending to excuse or justify\u201d the conduct of the defendant is a mitigating factor though it fails to establish a defense. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 \u2014 5\u20143.1(a)(4).) In People v. Walcher (1969), 42 Ill. 2d 159, 246 N.E.2d 256, and People v. Goodman (1981), 98 Ill. App. 3d 743, 424 N.E.2d 663, both murder cases cited by defendant, harsh sentences of death and natural-life imprisonment, respectively, were set aside on review. The court concluded that the intoxication of the defendants at the time of the offenses and their addiction to intoxicating substances required lesser sentences.\nHere, the court expressed uncertainty as to whether defendant\u2019s intoxication should be considered mitigating. The court did not state that it did not consider the intoxication to be mitigating. The court merely stated that the intoxication did not entitle defendant to \u201clenient treatment.\u201d The court then imposed a sentence which was in the middle range of that available but did not impose a harsh sentence. We find no error to have occurred at sentencing.\nThe convictions and sentences are affirmed.\nAffirmed.\nSPITZ, P.J., and MORTHLAND, J., concur.", "type": "majority", "author": "JUSTICE GREEN" } ], "attorneys": [ "Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Thomas K. Deeper, State\u2019s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLAN E. BARTAY, Defendant-Appellant.\nFourth District\nNo. 4\u201486\u20140112\nOpinion filed December 4, 1986.\nDaniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nThomas K. Deeper, State\u2019s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0130-01", "first_page_order": 152, "last_page_order": 155 }