In re S.B. , 2012 IL 112204 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Supreme Court
In re S.B., 2012 IL 112204
Caption in Supreme In re S.B., a Minor (The People of the State of Illinois, Appellant, v. S.B.,
Court: Appellee).
Docket No. 112204
Filed October 4, 2012
Held A juvenile who has been found “not not guilty” of aggravated criminal
(Note: This syllabus sexual abuse following a statutory discharge or “innocence only”
constitutes no part of hearing must register as a sex offender, but may petition to be removed
the opinion of the court from the registry as provided by law.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the Third District; heard in that
Review court on appeal from the Circuit Court of Peoria County, the Hon. Chris
L. Fredericksen, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Kevin W. Lyons,
Appeal State’s Attorney, of Peoria (Michael A. Scodro, Solicitor General, and
Michael M. Glick and Leah M. Bendik, Assistant Attorneys General, of
Chicago, and Patrick Delfino, Terry A. Mertel and Gary F. Gnidovec, of
the Office of the State’s Attorneys Appellate Prosecutor, of Ottawa, of
counsel), for the People.
Carrie B. Stevens, of Grand Junction, Colorado, for appellee.
Justices JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, and
Theis concurred in the judgment and opinion.
Justice Garman dissented, with opinion.
OPINION
¶1 At issue in this case is whether a juvenile who has been found “not not guilty” of
aggravated criminal sexual abuse following a discharge hearing pursuant to section 104-25(a)
of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-25(a) (West 2008)) must
register as a sex offender. The appellate court concluded that registration was not required.
408 Ill. App. 3d 516. We hold that the juvenile is required to register as a sex offender, but
that he may petition to be removed from the sex offender registry under the terms set forth
in section 3-5 of the Sex Offender Registration Act (730 ILCS 150/3-5 (West 2008)).
¶2 Background
¶3 On July 7, 2006, the State filed a two-count juvenile petition in the circuit court of Peoria
County alleging that S.B., a minor, was delinquent. Count I alleged that in June or July of
2005, S.B. placed his finger in the vagina of a girl under the age of nine, thereby committing
aggravated criminal sexual assault (720 ILCS 5/12-14(b)(i) (West 2004)). Count II alleged
that S.B. touched the vagina of the victim for the purpose of sexual arousal, thereby
committing aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)(i) (West 2004)).
¶4 The circuit court ordered that S.B. be evaluated for his fitness to stand trial. Dr. Jane
Velez examined S.B. under the fitness procedures of the Code of Criminal Procedure (Code)
(725 ILCS 5/104-10 et seq. (West 2008)) and was the sole witness to testify at his fitness
hearing. Velez stated that S.B., who was 14 years old at the time of the incident, suffered
from mild mental retardation and that he functioned like “a 7 or 8-year-old boy.” Velez
concluded that, because of his intellectual limitations, S.B. would not be able to assist in his
defense, and was therefore unfit to stand trial. Velez also explained to the court that S.B. was
-2-
“really not a pedophile” and that “his main difficulty” was his cognitive limitations.
According to Velez, with family support and counseling, there was little risk of recidivism
on the part of S.B.
¶5 At the conclusion of the fitness hearing, the circuit court found that S.B. was unfit to
stand trial and there was no substantial likelihood he would attain fitness within one year.
See 725 ILCS 5/104-16(d) (West 2008)). As a result, the court set the matter for a discharge
hearing pursuant to section 104-25(a) of the Code (725 ILCS 5/104-25(a) (West 2008)). A
discharge hearing “is an ‘innocence only’ proceeding that results in a final adjudication of
charges only if the evidence fails to establish the defendant’s guilt beyond a reasonable doubt
(resulting in the defendant’s acquittal) or the defendant is found not guilty by reason of
insanity. If the evidence is found to be sufficient to establish the defendant’s guilt, no
conviction results. Instead, the defendant is found not not guilty (People v. Lavold, 262 Ill.
App. 3d 984 (1994)) and may be held for treatment. A criminal prosecution of the charges
against the defendant does not take place unless or until the defendant is found fit to stand
trial.” (Emphasis in original.) People v. Waid, 221 Ill. 2d 464, 469-70 (2006).
¶6 At the discharge hearing, the victim, M.J., testified for the State. M.J., who was seven
years old on the date of the hearing and four years old at the time of the incident, stated that
S.B. was her neighbor. On the day of the incident, M.J. was playing in a cornfield with S.B.
and his brother when they found a ball. According to M.J., S.B. came up with a game where
one person threw the ball, the other two persons looked for it, and the person who did not
find it had to “get naked.” S.B. threw the ball, his brother found it, and as a result, M.J. took
off her clothes. While M.J. was standing naked, S.B. approached her, got on his knees, and
touched her “private part.” At some point, S.B.’s brother threw the ball a second time, and
S.B. failed to find it. S.B. undressed and asked M.J. to touch his penis. M.J. then touched
S.B.’s penis with her finger. After getting dressed, S.B., his brother, and M.J. left the
cornfield.
¶7 M.J. did not tell anyone about what happened in the cornfield because she was afraid she
would get in trouble. Approximately a year later, however, M.J.’s grandmother learned about
the incident from M.J.’s brother and contacted the police.
¶8 Detective David Doubet from the Peoria County sheriff’s department testified about
statements M.J. made to him during his investigation of the incident. See 725 ILCS 5/115-10
(West 2008) (allowing admission of out-of-court statement by minor victim of sex offense
as exception to hearsay rule). Doubet essentially reiterated M.J.’s testimony.
¶9 At the close of evidence, the State conceded there was insufficient evidence to establish
that S.B. had penetrated the victim’s vagina. The circuit court agreed and, accordingly,
entered a judgment of acquittal on count I. With respect to count II, the circuit court found
that M.J.’s testimony was credible and that her touching of S.B.’s penis at his request was
sufficient to establish the element of sexual arousal. The court therefore found that the State
had proven beyond a reasonable doubt that S.B. committed aggravated criminal sexual abuse.
Accordingly, the court entered a finding of no acquittal or “not not guilty” on count II.
¶ 10 For the next 15 months, S.B. was evaluated on an outpatient basis by the Illinois
Department of Human Services pursuant to section 104-25(d)(1) of the Code (725 ILCS
-3-
5/104-25(d)(1) (West 2008)). Reports generated during this period describe the efforts made
to restore S.B. to fitness by educating him about the legal process. The reports also uniformly
state that S.B. was not suffering from a mental illness and was not considered a danger to
himself or others.
¶ 11 At the conclusion of the 15-month period, the circuit court found that S.B. remained unfit
to stand trial. The State then moved to compel further fitness treatment for S.B. pursuant to
section 104-25(g)(2) of the Code (725 ILCS 5/104-25(g)(2) (West 2008)). Under this
provision, a court may order further treatment of a person if he is either subject to involuntary
admission under the Mental Health and Developmental Disabilities Code (405 ILCS 5/1-100
et seq. (West 2008)) or “constitutes a serious threat to public safety.” The court denied the
State’s motion, finding there was no evidence that S.B. was mentally ill or that he posed a
threat to public safety.
¶ 12 The State also moved to compel S.B.’s registration as a sex offender pursuant to section
2(A)(1)(d) of the Sex Offender Registration Act (SORA) (730 ILCS 150/2(A)(1)(d) (West
2008)). This provision defines a sex offender as “any person” who is charged with a sex
offense who “is the subject of a finding not resulting in an acquittal” following a discharge
hearing. On January 27, 2009, the circuit court granted the State’s motion and ordered S.B.
to register as a sex offender. Defendant appealed.
¶ 13 On appeal, defendant did not contest his conviction but, instead, challenged only the
circuit court’s order requiring him to register as a sex offender. With one justice dissenting,
the appellate court concluded that registration was not required and reversed the judgment
of the circuit court. 408 Ill. App. 3d 516.
¶ 14 In so holding, the appellate court noted that the only reference to juveniles in SORA’s
definitions of a sex offender is found in section 2(A)(5) (730 ILCS 150/2(A)(5) (West
2008)), and that this provision refers only to juveniles who have been adjudicated delinquent.
Because S.B. was not adjudicated delinquent but, instead, was found “not not guilty”
following a discharge hearing, the court concluded that S.B. was not a sex offender as
defined in SORA.
¶ 15 The appellate court further noted that section 3-5 of SORA (730 ILCS 150/3-5 (West
2008)) allows juveniles who have been adjudicated delinquent to petition for termination of
registration under certain conditions, but does not mention juveniles found “not not guilty.”
Given this fact, the court concluded that it would be “absurd and unjust” to apply section
2(A)(1)(d) to juveniles found “not not guilty,” as the result would be “a nondelinquent
juvenile having fewer rights than a juvenile who was actually adjudicated delinquent.” 408
Ill. App. 3d at 520.
¶ 16 We allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
¶ 17 Analysis
¶ 18 Section 2 of SORA sets forth the definitions of a sex offender and provides, in relevant
part:
“(A) As used in this Article, ‘sex offender’ means any person who is:
-4-
(1) charged pursuant to Illinois law, or any substantially similar federal,
Uniform Code of Military Justice, sister state, or foreign country law, with a sex
offense set forth in subsection (B) of this Section or the attempt to commit an
included sex offense, and:
***
(d) is the subject of a finding not resulting in an acquittal at a hearing
conducted pursuant to Section 104-25(a) of the Code of Criminal Procedure
of 1963 for the alleged commission or attempted commission of such offense;
or
***
(5) adjudicated a juvenile delinquent as the result of committing or attempting
to commit an act which, if committed by an adult, would constitute any of the
offenses specified in item (B), (C), or (C-5) of this Section *** .” 730 ILCS
150/2(A)(1)(d), (A)(5) (West 2008).
¶ 19 As it did in the courts below, the State maintains that S.B. falls within the plain meaning
of section 2(A)(1)(d) because he was a person charged with a sex offense under Illinois law
and was found “not not guilty” following a discharge hearing. Thus, according to the State,
S.B. is a sex offender under SORA and is required to register.
¶ 20 S.B., in response, initially contends that section 2(A)(1)(d) is inapplicable in this case
because “no specific statute” allows for discharge hearings under the Juvenile Court Act of
1987 (705 ILCS 405/1-1 et seq. (West 2008)). According to S.B., because the discharge
hearing that took place in this case was not authorized by statute, the circuit court’s finding
that S.B. was “not not guilty” is void and cannot provide a basis for applying section
2(A)(1)(d).
¶ 21 Whether discharge hearings under section 104-25(a) are applicable in juvenile
proceedings is a matter of first impression in this court. The Juvenile Court Act does not
contain its own provisions addressing a minor’s fitness or procedures to follow in the event
a minor is found unfit to stand trial. However, section 5-101(3) of the Juvenile Court Act
states that, “[i]n all procedures under this Article, minors shall have all the procedural rights
of adults in criminal proceedings, unless specifically precluded by laws that enhance the
protection of such minors.” 705 ILCS 405/5-101(3) (West 2008). The fitness procedures
found in the Code of Criminal Procedure, including discharge hearings pursuant to section
104-25(a), exist to safeguard the due process rights of defendants. Accordingly, we hold that
section 104-25(a) is incorporated into the Juvenile Court Act and that the circuit court’s
finding of “not not guilty” in this case was not void. See In re T.D.W., 109 Ill. App. 3d 852,
854-55 (1982), overruled on other grounds by People v. Gentry, 351 Ill. App. 3d 872 (2004)
(holding that the fitness procedures from the Code of Criminal Procedure apply in juvenile
proceedings).
¶ 22 S.B. further maintains, however, that even if the discharge hearing provision applies, the
appellate court was nevertheless correct in holding that S.B. is not a sex offender within the
meaning of SORA. According to S.B., because section 2(A)(5) references juveniles who
have been adjudicated delinquent, the General Assembly intended to exclude other juveniles
-5-
from section 2(A)(1)(d). In other words, S.B. contends that the only way for a juvenile to fall
under SORA’s definitions of a sex offender is if the minor is adjudicated delinquent. This
argument cannot be reconciled with the plain language of section 2(A)(1)(d).
¶ 23 To meet the definition of a sex offender under section 2(A)(1)(d), a person must be
charged pursuant to Illinois law with a sex offense set forth in subsection (B) of section 2
(which includes aggravated criminal sexual abuse) and must be subject to a finding not
resulting in an acquittal following a discharge hearing under section 104-25(a) of the Code.
S.B. meets these conditions and, therefore, is a sex offender as defined by SORA.
¶ 24 The appellate court also found, however, that defining juveniles found “not not guilty”
as sex offenders would lead to “absurd and unjust results” in light of section 3-5 of SORA
(730 ILCS 150/3-5 (West 2008)). That provision states, in relevant part:
“(c) For a minor adjudicated delinquent for an offense which, if charged as an
adult, would be a felony, no less than 5 years after registration ordered pursuant to
subsection (a) of this Section, the minor may petition for the termination of the term
of registration. For a minor adjudicated delinquent for an offense which, if charged
as an adult, would be a misdemeanor, no less than 2 years after registration ordered
pursuant to subsection (a) of this Section, the minor may petition for termination of
the term of registration.
(d) The court may upon a hearing on the petition for termination of registration,
terminate registration if the court finds that the registrant poses no risk to the
community by a preponderance of the evidence based upon the factors set forth in
subsection (e).” 730 ILCS 150/3-5(c), (d) (West 2008).
¶ 25 According to the appellate court, including juveniles found “not not guilty” as sex
offenders under section 2(A)(1)(d) would be absurd because the provisions of section 3-5
allowing termination of registration apply only to juveniles adjudicated delinquent. Thus, a
nondelinquent juvenile would end up “having fewer rights than a juvenile who was actually
adjudicated delinquent in that the former has no ability to petition the circuit court to have
his sex offender registration terminated pursuant to section 3-5(c).” 408 Ill. App. 3d at 520.
¶ 26 We agree. Indeed, the absurdity noted by the appellate court is particularly evident in this
case, where S.B. has been found, after extensive evaluation, not to pose a threat to the safety
of the public. We can think of no reason why a juvenile whom the circuit court has
determined poses no danger to the community may not petition for removal from the sex
offender registry, while a juvenile who has been adjudicated delinquent may. We hold,
therefore, that despite the fact that section 3-5 mentions only juveniles adjudicated
delinquent, the legislature cannot have intended to exclude juveniles found “not not guilty”
from its reach. See, e.g., People v. Hanna, 207 Ill. 2d 486 (2003) (the literal reading of a
statute must yield where such a reading leads to an absurd result).
¶ 27 However, as the State correctly points out, the appellate court erred in relying on the
absurd-result principle to hold that juveniles found “not not guilty” do not fall under section
2(A)(1)(d) and, therefore, are not required to register as sex offenders. The illogic in the
statutory scheme is not in requiring registration for juveniles found “not not guilty,” as such
juveniles have been found to have committed a sexual offense beyond a reasonable doubt.
-6-
Rather, the illogic is in denying those juveniles the opportunity to petition for termination of
registration, just as juveniles who have been adjudicated delinquent may do. Recognizing
this fact, the State suggests that this “Court should correct [the absurdity] by interpreting
section 3-5 to allow all juveniles required to register under SORA to petition for early
termination of registration obligations rather than limit the universe of juveniles required to
register under section 2(A) in the first instance.” We agree with the State.
¶ 28 “We have authority to read into statutes language omitted by oversight.” Carey v. Elrod,
49 Ill. 2d 464, 470 (1971) (citing People v. Hudson, 46 Ill. 2d 177, 181 (1970), and People
ex rel. Cason v. Ring, 41 Ill. 2d 305, 310-16 (1968)). “[W]hile courts are and should be
cautious about adding words, as such, to a statute generally, they will not hesitate to read into
the sense of some section or provision a qualifying or expanding expression plainly implied
by the general context of the act, which has been palpably omitted and which is necessary
to prevent the legislative purpose from failing in one of its material aspects.” People ex rel.
Barrett v. Anderson, 398 Ill. 480, 485 (1947). Further, words may be supplied in a statute
where omission of the words makes the statute absurd. See generally 2A Norman J. Singer
& J.D. Shambie Singer, Sutherland on Statutory Construction § 47:38, at 522-24 (7th ed.
2007).
¶ 29 In enacting the termination provisions of section 3-5, the General Assembly recognized
that, in many instances, juveniles who engage in sexually inappropriate behavior do so
because of immaturity rather than predatory inclinations. The purpose of the termination
provisions of section 3-5 is to afford juveniles the opportunity to demonstrate this is true in
an individual case, and to prove that they do not pose a safety risk to the community. To read
section 3-5 as denying juveniles found “not not guilty” the opportunity to proceed under the
termination provisions would—in addition to creating the absurdity noted by the appellate
court—defeat the very purpose of the statute.
¶ 30 Moreover, it is evident why, in enacting section 3-5, the General Assembly overlooked
juveniles found “not not guilty” following a discharge hearing. Discharge hearings are not
explicitly mentioned in the Juvenile Court Act. As noted above, this is the first decision from
this court to expressly hold that discharge hearings under section 104-25 of the Code are
incorporated into the Juvenile Court Act. See 408 Ill. App. 3d at 525 (Schmidt, J., dissenting)
(“My best guess is that the failure to include [juveniles found ‘not not guilty’] in the group
who can petition for early termination of the registration requirement is simply a legislative
oversight.”).
¶ 31 In order to avoid an absurd result, and to give effect to the purpose of section 3-5 of
SORA, we hold that section 3-5 should be read to include juveniles for whom a finding of
“not not guilty” has been entered following a discharge hearing. S.B. may therefore petition
for removal from the sex offender registry pursuant to the terms of section 3-5.
¶ 32 At oral argument, the State pointed out that the same inconsistency noted by the appellate
court with respect to section 3-5 of SORA also appears in section 121 of the Sex Offender
Community Notification Act (730 ILCS 152/121 (West 2008)). That provision limits the
dissemination of sex offender information “with respect to an adjudicated delinquent.” For
the reasons expressed above, we similarly hold that section 121 of the Sex Offender
-7-
Community Notification Act should be read to include juveniles found “not not guilty”
following a discharge hearing under section 104-25 of the Code.
¶ 33 Finally, we note that S.B. argues that denying him the opportunity to petition for
termination of registration violates his right to equal protection and due process. Because we
have concluded, as a matter of statutory interpretation, that S.B. may petition to be removed
from the sex offender registry under the terms set forth in section 3-5, we need not address
these contentions.
¶ 34 Conclusion
¶ 35 For the foregoing reasons, the judgment of the appellate court is reversed. The cause is
remanded to the circuit court for further proceedings consistent with this opinion.
¶ 36 Reversed and remanded.
¶ 37 JUSTICE GARMAN, dissenting:
¶ 38 I agree with my colleagues that the trial court properly conducted a discharge hearing in
the present case. However, I do not join that portion of the opinion that imposes upon a
juvenile the same consequences that a finding of “not not guilty” would impose on an adult
offender.
¶ 39 The term “discharge hearing” does not appear anywhere in the Juvenile Court Act.
However, the Act does contain a speedy-trial provision, which states, in part:
“The period in which a trial shall be held *** is tolled by: (i) delay occasioned by the
minor; (ii) a continuance allowed pursuant to Section 114-4 of the Code of Criminal
Procedure of 1963 after the court’s determination of the minor’s incapacity for trial;
(iii) an interlocutory appeal; (iv) an examination of fitness ordered pursuant to
Section 104-13 of the Code of Criminal Procedure of 1963; (v) a fitness hearing; or
(vi) an adjudication of unfitness for trial.” 705 ILCS 405/5-601(8) (West 2008).
¶ 40 Clearly, the Juvenile Court Act anticipates fitness hearings for juveniles and the
possibility that a juvenile will be found unfit to proceed with a trial or adjudication. The Act
also directs the trial court to conduct the fitness evaluation pursuant to section 104-13 of the
Code of Criminal Procedure. The Juvenile Court Act, however, does not provide direction
to the courts as to how to proceed when a minor is found unfit to proceed.
¶ 41 Article 104 of the Code of Criminal Procedure is titled “Fitness for trial, to plead or to
be sentenced.” It contains over 20 separate provisions, only one of which, section 104-13,
is expressly incorporated by reference into the Juvenile Court Act. The legislature’s choice
to expressly incorporate only this one provision may reflect its intention that the other
sections of Article 104 not apply in juvenile proceedings; or, the failure to specifically
provide a procedure to be followed if a juvenile is found unfit to proceed may be an
oversight.
¶ 42 When faced with a finding of unfitness and the absence of guidance in the statute, the
trial court is faced with two alternatives. First, the finding of unfitness could require
-8-
dismissal of the juvenile proceeding. This option serves neither the unfit minor nor the
public.
¶ 43 Second, the court could proceed as it did in the present case, by “importing” section 104-
25(a) of the Code of Criminal Procedure and conducting a discharge hearing. Section 104-
25(a) provides, in toto:
“(a) As provided for in paragraph (a) of Section 104-23 and subparagraph (1) of
paragraph (b) of Section 104-23 a hearing to determine the sufficiency of the
evidence shall be held. Such hearing shall be conducted by the court without a jury.
The State and the defendant may introduce evidence relevant to the question of
defendant’s guilt of the crime charged.
The court may admit hearsay or affidavit evidence on secondary matters such as
testimony to establish the chain of possession of physical evidence, laboratory
reports, authentication of transcripts taken by official reporters, court and business
records, and public documents.” 725 ILCS 5/104-25(a) (West 2008).
¶ 44 The majority holds that “section 104-25(a) is incorporated into the Juvenile Court Act
and that the circuit court’s finding of ‘not not guilty’ was not void.” Supra ¶ 20.
¶ 45 A finding of “not not guilty” is authorized by section 104-25(d), not section 104-25(a).
In addition, a finding that the evidence does not prove the defendant guilty beyond a
reasonable doubt results in a judgment of acquittal under section 105-25(b); a finding that
the defendant is not guilty by reason of insanity and the resulting acquittal is governed by
section 105-25(c). 725 ILCS 5/104-25(b), (c), (d) (West 2008). As a result, this court cannot
“incorporate” only section 104-25(a) of the Code of Criminal Procedure into the Juvenile
Court Act without incorporating, at least, sections 104-25(b), (c), and (d). And if subsections
(a) through (d) are incorporated, what about (e) through (g)?
¶ 46 And if the mere mention in the Juvenile Court Act of a fitness examination under section
104-13 of the Code of Criminal Procedure “incorporates” additional sections of Article 104
of the Code, what of the other sections in that Article?
104-10 Presumption of Fitness; Fitness Standard
104-11 Raising Issue; Burden; Fitness Motions
104-12 Right to Jury
104-14 Use of Statements Made During Examination or
Treatment
104-15 Report
104-16 Fitness Hearing
104-17 Commitment for Treatment; Treatment Plan
104-18 Progress Reports
104-19 Records
104-20 Ninety-Day Hearings; Continuing Treatment
104-21 Medication
104-22 Trial with Special Provisions and Assistance
-9-
104-23 Unfit Defendants
104-26 Disposition of Defendants Suffering Disabilities
¶ 47 These questions aside, I agree that holding a discharge hearing after a minor has been
found unfit to proceed with adjudication is in keeping with section 5-101(3) of the Juvenile
Court Act, which states that minors shall have all of the procedural rights of adults in
criminal proceedings “unless specifically precluded by laws that enhance the protection of
such minors.” 705 ILCS 405/5-101(3). Nothing in the Juvenile Court Act specifically
precludes the trial court from holding a discharge hearing, and because the hearing may result
in dismissal if the evidence is not sufficient to support an adjudication of delinquency, a
discharge hearing enhances the protection of minors by providing due process.
¶ 48 I, therefore, agree with the majority that a trial court may conduct a discharge hearing,
along the lines of the hearings governed by section 104-25 of the Code of Criminal
Procedure, when a juvenile has been found unfit to proceed with adjudication. I stop short
of finding that the legislature intended to “incorporate” any part of Article 104 of the Code,
aside from section 104-13, into the Juvenile Court Act. I also question the holding that
incorporates only section 104-25(a) of the Code, but not sections 104-25(b), (c), and (d), and
does not offer a guide to the lower courts for determining which other sections of Article 104
of the Code are also deemed incorporated.
¶ 49 In the present case, the trial court concluded after a discharge hearing that there was
sufficient evidence to adjudicate the minor delinquent, had he been fit to proceed, in effect,
finding him “not not guilty.”
¶ 50 If an adult is found “not not guilty,” several consequences flow. The adult may be held
for treatment for up to two years, or for up to five years on a charge of first degree murder.
725 ILCS 5/104-25(d) (West 2008). The majority does not suggest that these consequences
attach to a juvenile, but does not explain why.
¶ 51 In addition, the adult found “not not guilty” of specified crimes is required to register as
a sex offender pursuant to section 2(A)(1)(d) of the Sex Offender Registration Act (SORA).
730 ILCS 150/2(A)(1)(d) (West 2008). The majority concludes that because section 104-
25(a) of the Code of Criminal Procedure is incorporated into the Juvenile Court Act, the
juvenile who is found “not not guilty” of one of the enumerated sex offenses after a discharge
hearing is also required to register as a sex offender.
¶ 52 Section 2(A) of SORA lists five separate categories of sex offenders. A sex offender is
“any person” who falls into one of the five enumerated categories.
¶ 53 Only category (5) expressly applies to juveniles. Under this provision, a minor is required
to register as a sex offender if “adjudicated a juvenile delinquent as the result of committing
or attempting to commit an act which, if committed by an adult, would constitute any of the
offenses specified.” 730 ILCS 150/2(A)(5) (West 2008).
¶ 54 As I read section 2 of SORA, there is only one circumstance under which a minor could
come within any of the other categories of sex offender. Under the plain language of section
2(A)(1), “any person” who “is convicted of” one of the enumerated crimes or of “an attempt
to commit such offense” is a sex offender and required to register. 730 ILCS 150/2(A)(1)
(West 2008). The only way that a minor could come within this section is if he is at least 15
-10-
years old, charged with aggravated criminal sexual assault, and prosecuted as an adult under
section 5-130(1)(a) of the Juvenile Court Act (705 ILCS 405/5-130(1)(a) (West 2008)). The
plain meaning of section 2 of SORA is that a minor must register only if adjudicated
delinquent as a result of committing one of the listed crimes or if tried as an adult and
convicted of such a crime.
¶ 55 Nevertheless, the majority finds an inconsistency in SORA because, as a result of its
incorporating section 104-25(a) of the Code of Criminal Procedure into the Juvenile Court
Act, a minor may be determined to be “not not guilty” of one of the enumerated crimes. If
such a finding were made with respect to an adult, or to a minor over the age of 15 who was
prosecuted as an adult, he would be defined as a sex offender under section 2(A)(1)(d). Thus,
the majority concludes, a 14-year-old who was not fit for adjudication because of his
developmental disability and who was not charged with a crime that would have allowed him
to be prosecuted as an adult even if he were 15 must register as a sex offender.
¶ 56 This apparent inconsistency was created by the majority’s incorporation of section 104-
25(a) of the Code of Criminal Procedure into the Juvenile Court Act. As a result, this
court—not the language of SORA—would make sections 2(A)(1)(c), (d), and (e) of SORA
applicable to unfit juveniles who have been given a discharge hearing.
¶ 57 I find no inconsistency in SORA. The meaning of section 2 is plain. A minor is not
required to register unless he is adjudicated delinquent or unless he comes within the
definition of “sex offender” by virtue of having been prosecuted as an adult.
¶ 58 The majority’s approach, aside from ignoring the plain language of section 2(A) of
SORA, renders paragraph (5) mere surplusage. If a minor is a “sex offender” by virtue of
“conviction” of one of the enumerated offenses and if, as section 2(A) states, “ ‘convicted’
shall have the same meaning as ‘adjudicated,’ ” (730 ILCS 150/2(A) (West 2008)), then there
is no reason whatsoever to have paragraph (5) at all. Every minor accused of one of the
enumerated crimes will either be acquitted, adjudicated delinquent (i.e., convicted), found
“not not guilty” after a discharge hearing, or found not guilty by reason of insanity. All of
these outcomes are expressly provided for in section 2(A)(1), making section 2(A)(5), under
the majority’s reading, utterly unnecessary.
¶ 59 The legislature’s intent that minors be required to register as sex offenders only if
convicted as adults or if adjudicated delinquent is also reflected in section 3 of SORA, which
is titled “Application of Act to adjudicated juvenile delinquents.” 730 ILCS 150/3-5 (West
2008). This section governs the duration of sex offender registration by a juvenile and
permits “a hearing on the petition for termination of registration.” 730 ILCS 150/3-5(d)
(West 2008).
¶ 60 Thus, a minor who is tried as an adult, convicted, and ordered to register as a sex
offender does not come within the scope of this section and would not be eligible to petition
for termination of registration. A minor, as in the present case, who is defined as a sex
offender because of a finding of “not not guilty” does not come within this section either,
despite the lack of an adjudication of delinquency. The majority finds this result absurd and
solves an inconsistency of its own creation by holding that section 3-5(d) applies to a minor
found “not not guilty” as well.
-11-
¶ 61 Finally, the majority holds that section 121 of the Sex Offender Notification Law “should
be read to include juveniles found ‘not not guilty’ following a discharge hearing.”
¶ 62 For me, this is a bridge too far. While it is clear that the legislature did not intend for a
minor who is unfit as a result of developmental disability or mental illness to be subject to
an adjudication hearing, the Juvenile Court Act gives the courts no direction as to the next
step. As a matter of statutory interpretation, I agree that section 5-601(8) of the Juvenile
Court Act, by providing for a fitness examination and fitness hearing pursuant to section 104-
13 of the Code of Criminal Procedure, creates a gap in the law which this court must fill as
a matter of due process, judicial efficiency, and practicality.
¶ 63 I also agree that once a minor is found unfit to proceed with adjudication, holding a
discharge hearing along the lines of a section 104-25 hearing is a reasonable way to proceed.
That said, I am unwilling to reach so far as to extend the scope of the Sex Offender
Registration Act and the Sex Offender Community Notification Law to minors who have
been found unfit for adjudication. These are issues for the legislature.
¶ 64 For these reasons, I respectfully dissent.
-12-