People v. Vara, 2016 IL App (2d) 140849 (December). Episode 277 (Duration 9:42)
There is a difference between grooming and solicitation charges, clever reading of the code goes nowhere.
Defendant was convicted of grooming (720 ILCS 5/11-25) because he sent a text to an 11-year-old girl stating he wanted to make love to her “ur pink hot pussy.”
Defendant was 57 years old and was living with the victim and her family.
Defendant argues that the grooming statute required that the victim personally was enticed to commit the offense of predatory criminal sexual assault.
Defendant emphasizes that all of the terms in the act, along with section 2-20’s definition of solicit, “have a common theme of persuading someone to do something.”
The code has two definitions of “solicit”.
Therefore, the plain language of the statute required that, in order for him to have committed grooming, he must have persuaded or attempted to persuade the victim to commit a sex offense.
Further, he says something different than mere solicitation is intended by the act because there is already a solicitation charge in the books. 720 ILCS 5/11-6(a) provides that a “person of the age of 17 years and upwards commits indecent solicitation of a child if the person, with the intent that the offense of *** predatory criminal sexual assault of a child *** be committed, knowingly solicits a child *** to perform an act of sexual penetration or sexual conduct.”
Under section 11-6(b), “solicit” includes commanding or urging another in person, over the phone, or by computer to perform an act. 720 ILCS 5/11-6(b).
Defendant contrasts the definition of “solicit” in section 11-6(b) with the general definition of “solicit” found in section 2-20 of the Code (“Solicit” *** means to command *** another to commit an offense” (720 ILCS 5/2-20).
Whereas committing the offense of indecent solicitation of a child prohibits requires commanding a child to perform an act, the general definition of “solicit” under section 2-20 is to command another to commit an offense. Defendant concludes that the offense of indecent solicitation of a child involves the situation where a defendant seeks to persuade a child to have sex with the defendant.
Therefore, holding that grooming under section 11-25(a) also involves soliciting a child to have sex with the defendant, would render section 11-6(a) superfluous.
Defendant concludes that, under the plain language of the grooming statute, the State had to show that defendant enticed J.D. to commit a sex offense that she was capable of committing against another person.
Accordingly, it was impossible for J.D. to commit a predatory criminal sexual assault, and the State failed to prove that defendant was guilty of grooming.
In the context of sexual abuse of a child, grooming is commonly understood as a method of building trust with a child or an adult around the child in an effort to gain access to the child, make the child a cooperative participant in the abuse, and reduce the chance that the abuse is detected or disclosed.
The reviewing court rejected defendant’s argument that the legislature’s use of the word “solicit” in the grooming statute required that defendant urged the victim to personally commit a sex offense.
Rather, “solicit” as used in the grooming statute has its commonly understood meaning: to urge strongly, or to entice or lure, especially to evil.
In the context of the grooming statute, it is clear that persuading “someone to do something” includes persuading a child to engage in sexual conduct with the defendant.
Defendant’s interpretation is absurd.
Grooming is a method by which a person gains access to a child, builds trust with the child, and renders the child susceptible to sexual abuse. Therefore, an interpretation of the grooming statute whereby a defendant is allowed to have access to a child, build trust with the child, and encourage the child to have sex with the defendant, but not with others, is absurd.
The State is correct that, when conduct is proscribed by two statutes with different levels of punishment, a prosecutor has discretion to prosecute under either or both statutes.
They Are Different
Moreover, a proportionate-penalties violation occurs only when two offenses have identical elements but disparate sentences. The different elements in the grooming statute include that an electronic device is used and that grooming may be directed at a child’s guardian, whereas indecent solicitation must be directed at a child (or one believed to be a child).
The actus reus for each offense is fundamentally different.
Indecent solicitation of a child involves knowingly soliciting “a child *** to perform an act of sexual penetration or sexual conduct.” 720 ILCS 5/11-6(a). Importantly, indecent solicitation of a child requires that a defendant request that a child perform a sexual act.
On the other hand, the grooming statute prohibits a person from knowingly using an electronic device to “seduce, solicit, lure, or entice” a child, with the goal being sexual relations with the child. 720 ILCS 5/11-25(a).
Consistent with the common understanding of grooming as a method to prepare a child for sexual abuse, the grooming statute prohibits a broader range of conduct than does the indecent-solicitation-of-a-child statute.
Simply, indecent solicitation of a child requires urging, commanding, or requesting that a child perform a sexual act, but grooming does not.
Accordingly, the grooming statute does not render the indecent-solicitation-of-a-child statute superfluous.
The reviewing court rejected defendant’s interpretation that the statute requires not that the defendant would commit the offense but that the child would be enticed to commit the offense, because such a construction is inconsistent with the legislative intent and would lead to an absurd result.