People v. Beard

Opinion

FIFTH DIVISION May 12, 2006

No. 1-04-2157

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) ) KEITH BEARD, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

After a bench trial, defendant Keith Beard was convicted of three counts of aggravated kidnapping

for ransom and was sentenced to 30 years in prison. As a result of his conviction for aggravated

kidnapping, defendant was required to register as a sex offender, pursuant to the Sex Offender Registration

Act (the Registration Act) (730 ILCS 150/1 et seq. (West 2002)) and the Sex Offender

and Child Murderer Community Notification Law (the Notification Law) (730 ILCS 152/101

et seq. (West 2002)). Defendant appeals, arguing that the Registration Act and Notification Law

are unconstitutional as applied to him because his crime did not have a sexual motivation or component.

Defendant further contends that section 5-4-3 of the Unified Code of Corrections (the Code) (730

ILCS 5/5-4-3 (West 2002)), which requires a blood sample for persons convicted of sexual

offenses or found sexually dangerous, is unconstitutional as a violation of his fourth amendment right against

unreasonable search and seizure. For the reasons stated in this opinion, we uphold the constitutionality of 1-04-2157

the challenged statutes.

On May 17, 2002, a woman and her two children, age two and seven at the time, were

kidnapped in front of their home by two men. The men drove the woman and her children to the defendant=s

residence and parked the car inside the garage. The two men talked to the woman=s husband on her cell phone

and demanded money and drugs in exchange for his wife and children. At approximately 11 p.m., defendant

went to the garage with the victims and told the woman to sit in the car with her children. Defendant sat

outside the car holding a gun. Police apprehended defendant and his accomplices the next day after they took

the victims to a pay phone.

The trial court found defendant guilty of three counts of aggravated kidnapping for ransom and two

counts of aggravated kidnapping of a child under 13 years of age. Defendant was sentenced to three

concurrent 30-year sentences. The court ordered a sample of defendant=s DNA be taken pursuant to

section 5-4-3 of the Code.

ANALYSIS

Defendant argues that the Registration Act and Notification Law are unconstitutional as applied

to him because his crime did not involve any sexual motivation or component and, thus, should not be included

as a sex offense. Defendant=s argument is based on due process, right of privacy and equal protection

grounds.

The Registration Act and Notification Law Aset out a comprehensive scheme providing for the

registration and community notification of sex offenders.@ People v. Malchow, 193 Ill. 2d 413,

416, 739 N.E.2d 433, 437 (2000). The legislative intent behind the creation of the

Registration Act and Notification Law was Ato create an additional measure of protection for children

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from the increasing incidence of sexual assault and child abuse.@ Malchow, 193 Ill. 2d at 420,

739 N.E.2d at 438. Section 2(B)(1.5) of the Registration Act classifies aggravated

kidnapping as a sex offense when Athe victim is a person under 18 years of age, the defendant is not a parent

of the victim, and the offense was committed on or after January 1, 1996.@ 730 ILCS

150/2(B)(1.5) (West 2002). The offenses of kidnaping, unlawful restraint and aggravated

unlawful restraint, or an attempt to commit any one of those offenses, also trigger the requirement that the

defendant register as a sex offender. 730 ILCS 150/2(B)(1.5).

Here, defendant was convicted of aggravated kidnapping and was required to Aregister [as a sex

offender] in person and provide accurate information as required by the Department of State Police,@

pursuant to section 3(a) of the Registration Act (730 ILCS 150/3(a) (West 2002)). The

Notification Law provides that when a person registers as a sex offender, Athe offender shall notify the law

enforcement agency having jurisdiction with whom the offender registers *** that the offender is a sex

offender.@ 730 ILCS 152/110 (West 2002). The Notification Law requires the Illinois

State Police to maintain a AStatewide Sex Offender Database@ to identify sex offenders and make the

information available to the people specified in the Notification Law. 730 ILCS 152/115(a) (West

2002).

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I. Due Process

Defendant asserts that the Registration Act and Notification Law infringe on his fundamental

rights to procedural and substantive due process protections. Specifically, defendant claims that his

fundamental liberty interests in maintaining a living and rearing his children are being abridged unnecessarily and

arbitrarily. Defendant further contends that his right to procedural due process is violated because he is

automatically labeled a sex offender based on the commission of a crime (aggravated kidnapping) without notice

or opportunity to challenge that characterization.

Procedural due process requires that a person in danger of serious loss of life, liberty or property be

given notice of the case against him and opportunity to meet it. Mathews v. Eldridge, 424 U.S.

319, 348, 47 L. Ed. 2d 18, 41, 96 S. Ct. 893, 909 (1976). Substantive due

process bars the government from arbitrarily exercising its power without the reasonable justification of

serving a legitimate interest. Daniels v. Williams, 474 U.S. 327, 331, 88 L. Ed. 2d

662, 668, 106 S. Ct. 662, 665 (1986).

When confronted with a claim that a statute violates constitutional guarantees of due process, the

court must first determine the nature of the right upon which the statute allegedly infringes. People v.

Cornelius, 213 Ill. 2d 178, 203, 821 N.E.2d 288, 304 (2004). Where the right

infringed upon is a constitutionally protected fundamental right, the statute is subject to strict scrutiny

analysis. Cornelius, 213 Ill. 2d at 204, 821 N.E.2d at 304. The rational basis test is used

to determine the validity of a statute challenged on due process grounds where the statute does not affect a

fundamental right. Cornelius, 213 Ill. 2d at 203, 821 N.E.2d at 304. To satisfy the

rational basis test, a statute must only bear a rational relationship to the purpose the legislature sought to

accomplish in enacting the statute. Cornelius, 213 Ill. 2d at 203-04, 821 N.E.2d at 304.

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We also note the well-settled axiom that statutes are presumed constitutional and the burden of

establishing a statute=s invalidity falls on the party that is challenging the statute. In re J.W., 204 Ill.

2d 50, 62, 787 N.E.2d 747, 755 (2003). Courts have a duty to construe a statute in

a manner that upholds its validity and constitutionality if that can be reasonably done (Malchow, 193 Ill.

2d at 418, 739 N.E.2d at 437), and a statute should be upheld as long as a conceivable basis

exists for finding a reasonable relationship to the public interest to be protected. J.W., 204 Ill. 2d at

66, 787 N.E.2d at 757. This court reviews the constitutionality of a statute de novo. J.W.,

204 Ill. 2d at 62, 787 N.E.2d at 755.

Defendant contends that the Registration Act and Notification Law violate his constitutional due

process rights and should be subject to strict scrutiny. Defendant further argues that even if this court does

not use strict scrutiny, the laws should fail under a rational basis analysis. The Illinois Supreme Court has

determined that the Registration Act and Notification Law do not infringe on fundamental rights and are

subject to the rational basis test. J.W., 204 Ill. 2d at 67, 787 N.E.2d at 758. In

J.W., the Illinois Supreme Court upheld the validity of the Registration Act and Notification Law

against due process arguments. J.W., 204 Ill. 2d at 68, 787 N.E.2d at 758. The court

reaffirmed an earlier holding that the statute reasonably served the purpose of assisting law enforcement in

protecting children against sex offenders, and the statute thus satisfied the requirements of substantive due

process. J.W., 204 Ill. 2d at 67-68, 787 N.E.2d at 758, citing People v. Adams,

144 Ill. 2d 381, 581 N.E.2d 637 (1991).

This court has recently upheld the validity of the Registration Act and Notification Law in the

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context of due process. 1 In People v. Fuller, 324 Ill. App. 3d 728, 730, 756 N.E.2d

255, 257 (2001), the defendant stole a van, and two children, ages 6 and 15, had been left inside

the van while their father went into a store. Based on the children=s presence in the stolen van, the

defendant was convicted of aggravated kidnapping of a minor and was thus required to comply with the

Registration Act. Fuller, 324 Ill. App. 3d at 729-30, 756 N.E.2d at 257. The

defendant challenged the Registration Act as applied to him based on due process grounds. Fuller, 324

Ill. App. 3d at 731, 756 N.E.2d at 258. The court stated that because the Registration Act

does not affect a fundamental right, the rational basis test should be used to determine whether a due process

violation occurred. Fuller, 324 Ill. App. 3d at 731-32, 756 N.E.2d at 258. The court

noted that every provision of the Registration Act relates to registration of convicted sex offenders and that

the act serves the purpose of governing sex offender registration and the release of such information.

1 Although the Registration Act and Notification Law recently were challenged in People

v. Hall, 217 Ill. 2d 324, 841 N.E.2d 913 (2005), the Illinois Supreme Court decided that case on

other grounds and did not reach the issue.

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Fuller, 324 Ill. App. 3d at 732, 756 N.E.2d at 259.

The Fuller court further observed that the General Assembly decided to protect the children of

Illinois from sex crimes by creating the Registration Act, which allows law enforcement officials to more

easily locate child sex offenders. Fuller, 324 Ill. App. 3d at 732-33, 756 N.E.2d at

259. The Registration Act was reasonably related to the public interest of protecting children from

harm. Fuller, 324 Ill. App. 3d at 733, 756 N.E.2d at 259. The court rejected the

defendant=s argument that aggravated kidnapping has no relationship to the Registration Act=s purpose of

protecting children from sex offenders. Fuller, 324 Ill. App. 3d at 733, 756 N.E.2d at

260. We agree with the Fuller court=s reasoning that an obvious connection exists between aggravated

kidnapping and the purpose of the Registration Act because aggravated kidnapping is often a precursor to

more grievous sexual offenses. Fuller, 324 Ill. App. 3d at 733, 756 N.E.2d at 259.

Defendant argues that his offense differs from the crime in Fuller. In Fuller, the arresting police

officer testified that when he asked the defendant what he intended to do with the children that he kidnapped,

the defendant told the officer that Ahe was going to find a hotel room and ask the girl if she had any friends.@

Fuller, 324 Ill. App. 3d at 733, 756 N.E.2d at 259. Defendant argues that here, in

contrast to Fuller, no evidence was presented here of a sexual component to his crime, and he argues that

the law is arbitrarily applied to him without the justification of serving the purpose of the Registration Act.

However, the statute does not require blatant evidence of a sexual component to the offense of

aggravated kidnapping. 730 ILCS 150/2(B)(1.5) (West 2002). The statute requires

defendant to register as a sex offender based on his conviction for aggravated kidnapping, and that offense

was included in the statute because the General Assembly deemed that aggravated kidnapping often is a

precursor to more grievous sex offenses. 730 ILCS 150/2(B)(1.5) (West 2002).

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The dissent in this case argues that the crime of aggravated kidnapping contains no sexual element

and asserts that the facts here did not establish that defendant engaged in such activity with either minor

victim. That argument also was recently espoused by the majority in People v. Johnson, 363 Ill. App.

3d 356, 363-64, 843 N.E.2d 434, 440 (2006). The defendant in Johnson argued

that his classification as a sex offender based on a conviction for aggravated kidnapping was arbitrary and

unreasonable when no sexual motivation was involved. Johnson, 363 Ill. App. 3d at 363, 843

N.E.2d at 440. Using the rational basis test, the court in Johnson held the Registration Act

unconstitutional as applied to that defendant, and the court distinguished Fuller based on the statement made

by the defendant that indicated his possible sexual motivation. Johnson, 363 Ill. App. 3d at 363,

843 N.E.2d at 440. The court in Johnson also relied on authority from Florida, Ohio and New

York. Johnson, 363 Ill. App. 3d at 364, 843 N.E.2d at 440.

The dissent in Johnson noted, however, that it is the nature of the offense B aggravated kidnapping B

that triggers the Registration Act. Johnson, 363 Ill. App. 3d at 364, 843 N.E.2d at

441 (Wolfson, J., specially concurring in part and dissenting in part). Moreover, the dissent found it

reasonable for the General Assembly to conclude that a person who kidnaps a child may commit a sexual

crime with that child. Johnson, 363 Ill. App. 3d at 364-65, 843 N.E.2d at 441 (Wolfson, J.,

specially concurring in part and dissenting in part). The Johnson dissent further noted that the General

Assembly has the power to protect children from a person convicted of aggravated kidnapping by requiring

that person to register as a sex offender. Johnson, 363 Ill. App. 3d at 365, 843 N.E.2d

at 441 (Wolfson, J., specially concurring in part and dissenting in part). See also In re Phillip C., 1-

04-1109 (March 31, 2006) (largely relying on Fuller but noting the majority opinion in Johnson).

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Here, the dissent presents a valid argument that because a defendant convicted of aggravated

kidnapping does not, as an element of that offense, engage in a sexual act, the application of the Registration

Act and Notification Law to such a defendant is overbroad. Indeed, the aggravated kidnapping statute lists

eight different methods of committing that offense, only one of which specifically mentions children. See

720 ILCS 5/10-2(a)(2) (West 2002) (a person commits aggravated kidnapping when the

victim is Aa child under the age of 13 years or a severely or profoundly mentally retarded person@).

However, the Registration Act classifies aggravated kidnapping as a sex offense only if the victim of the

aggravated kidnapping is younger than 18 years of age, and the putative kidnapper is not the victim=s parent.

730 ILCS 150/2(B)(1.5). Therefore, the sex offender registration and notification provisions are

not triggered in every aggravated kidnapping case but only when the victim of the kidnapping is a youth who is

taken by someone other than a parent. The General Assembly had a rational basis to apply the registration

and notification requirements based on its view that kidnappers of children, or those convicted of the unlawful

restraint of children, or those who attempt those offenses, may have a propensity to commit sexual crimes

against children. It is not the role of this court to override the General Assembly=s rational basis for the

statute. The application of the Registration Act and Notification Law to defendant does not violate his

due process rights.

II. Privacy

Defendant next contends that the dissemination of his information through the

Registration Act and Notification Law violate his constitutional rights to privacy. The United

States Constitution provides a right of privacy that applies to personal decisions involving

marriage, procreation, contraception, family relationships and child rearing. Carey v. Population

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Services International, 431 U.S. 678, 684-85, 52 L. Ed. 2d 675, 685, 97 S. Ct. 2010, 2016

(1977). The Illinois Supreme Court has held previously that the information obtained from sex

offenders required to register under the Registration Act and Notification Law is not subject to

the federal right to privacy. Malchow, 193 Ill. 2d at 425, 739 N.E.2d at 441.

The right of privacy protected by article I, section 6, of the Illinois Constitution extends

beyond the federal right of privacy by A >expressly recognizing a zone of personal privacy,= @ and

this provision is broad and without restrictions. Malchow, 193 Ill. 2d at 425, 739 N.E.2d at 441,

quoting Kunkel v. Walton, 179 Ill. 2d 519, 537 (1997); Ill. Const. 1970, art. I, '6. This

right only protects against unreasonable invasions of privacy. Malchow, 193 Ill. 2d at 425, 739

N.E.2d at 441. The court first must determine whether the defendant has a reasonable expectation of

privacy in his sex offender registry information and then consider whether the public access to that information

unreasonably invades that privacy expectation. Cornelius, 213 Ill. 2d at 193-94, 821 N.E.2d

at 299.

Our supreme court has held that a defendant does not have a reasonable expectation of privacy in his

sex offender registry information because that information is already public as part of the court record and the

dissemination of that information is the result of the defendant=s own criminal conduct. Cornelius, 213 Ill.

2d at 196, 821 N.E.2d at 300. In Cornelius, the court determined that the defendant lowered

the reasonable expectation of privacy by committing a crime that resulted in his prosecution and a public record

that contains the challenged information. Cornelius, 213 Ill. 2d at 196, 821 N.E.2d at 300.

Since the reasonable expectation of privacy was minimal, the defendant had no legitimate privacy interest in

information that was already a public record; thus, he could not argue that it should not be compiled and

disseminated under the Registration Act and Notification Law. Cornelius, 213 Ill. 2d at 196-97,

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821 N.E.2d at 300.

In this case, defendant argues that Cornelius should not apply because that case involved a defendant

who committed a sex-related offense, aggravated criminal sexual abuse. Defendant at bar maintains that his

offense of aggravated kidnapping did not contain a sexual component. However, the General Assembly

created the Registration Act and Notification Law with the clearest intent to include aggravated kidnapping

as an offense that requires registration and dissemination of the registry information, evidenced by the express

inclusion of aggravated kidnapping in the statute. 730 ILCS 150/2(B)(1.5) (West 2002).

Defendant=s argument is based on case law that is distinguishable from the weight of authority in

Illinois, such as In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 604 N.E.2d

929 (1992). Defendant argues that case establishes his privacy right in the sex offender registry

information; however, it is distinguishable because it involved two people who had not been charged with

anything at the time they were required to submit hair samples and provide fingerprints. See Will County

Grand Jury, 152 Ill. 2d at 385, 604 N.E.2d at 931. In this case, defendant was charged

with and convicted of aggravated kidnapping, and all information from the court records is already available to

the public.

Defendant also relies on cases from other jurisdictions, as well as a law review article, to argue that

the dissemination of the registry information could lead to acts of Avigilantism@ against him because people will

be able to search out his information and possibly cause him harm. See Paul P. v. Verniero, 170 F.3d

396 (3rd Cir. 1999). However, that argument does not persuade this court to disregard established

Illinois law that defendant=s conduct has caused the loss of his expectation of privacy in the sex offender

registry information and that the State has a substantial interest in the compilation and dissemination of this

information to help law enforcement protect children from sex offenders. See Cornelius, 213 Ill. 2d at

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200-01, 821 N.E.2d at 302. We therefore reject defendant=s argument that the Registration

Act and Notification Law violate his constitutional right of privacy.

III. Equal Protection

Defendant next argues that the Registration Act violates his equal protection rights because the

definition of a sex offender is overbroad and overinclusive. Defendant argues that because his offense was

not sexually motivated, he should not be classified as a sex offender and be subject to the Registration Act.

We disagree.

Equal protection requires the government to deal with individuals who are Asimilarly situated@ in a

similar manner. Eisenstadt v. Baird, 405 U.S. 438, 446-47, 31 L. Ed. 2d 349,

358-59, 92 S. Ct. 1029, 1035 (1972). The equal protection clause is triggered when the

law Alays an unequal hand on those who have committed intrinsically the same quality of offense.@ Skinner v.

Oklahoma, 316 U.S. 535, 541, 86 L. Ed. 1655, 1660, 62 S. Ct. 1110, 1113

(1942). A claim that a statute violates the equal protection clause requires the determination of whether

a fundamental right is involved or whether the statute discriminates against a suspect class. People v.

Adams, 144 Ill. 2d 381, 391, 581 N.E.2d 637, 642 (1991). If neither factor is

involved, the court uses the rational basis test to determine whether the statute irrationally differentiates

between persons similarly situated. Adams, 144 Ill. 2d at 391, 581 N.E.2d at 642. Under

the rational basis test, the statutory classification need only bear a rational relationship to a legitimate state

goal. People v. Reed, 148 Ill. 2d 1, 7-8, 591 N.E.2d 455, 457 (1992). An equal

protection challenge governed by the rational basis standard is limited: Aif any state of facts may be reasonably

conceived to justify the enactment, it must be upheld.@ Reed, 148 Ill. 2d at 8, 591 N.E.2d at

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458.

Defendant is correct in using a rational basis standard to argue the presence of an equal protection

violation. However, defendant fails to establish that an equal protection violation exists. Again, while

defendant relies on authority from New York, Florida and Ohio, the General Assembly has determined

that the Registration Act is a reasonable method of furthering the legitimate state interest of protecting

children from sex offenders. Fuller, 324 Ill. App. 3d at 733, 756 N.E.2d at 260. The

General Assembly also has clearly intended that aggravated kidnapping should be included as a sex offense

based on its perception that children are at risk for a sexual offense if they are kidnapped. 730 ILCS

150/2(B)(1.5) (West 2002); Fuller, 324 Ill. App. 3d at 733, 756 N.E.2d at

260. Thus, the constitutionality of the Registration Act must be upheld against defendant=s equal

protection argument. Reed, 148 Ill. 2d at 8, 591 N.E.2d at 458.

IV. Constitutionality of DNA Statute

Defendant also argues that the compulsory extraction and perpetual storing of his DNA violate his

fourth amendment right to be free from unreasonable search and seizure. Defendant argues that taking a

blood sample from him does not serve any special need beyond general law enforcement. Defendant also

argues that even if a special need exists, the State=s interests do not outweigh his privacy interests in his

blood sample and his DNA.

The Illinois Supreme Court recently affirmed the constitutionality of the statute authorizing

extraction and storing of DNA in People v. Garvin, No. 99031 (March 23, 2006). The

supreme court held that creating a database to compare DNA samples that aid in the resolution of crimes

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constitutes a special need beyond general law enforcement. Garvin, slip op. at 13. The court also

concluded that the statute=s purpose B to Aabsolve innocents, identify the guilty, deter recidivism by identifying

those at a high risk of reoffending, or bring closure to victims@ B creates special needs beyond ordinary law

enforcement. Garvin, slip op. at 13-14. In Garvin, the defendant also asserted that the State=s

interest in the blood sample and DNA do not outweigh his privacy interest. Garvin, slip op. at 14. The

court noted that a convicted felon=s privacy rights are significantly diminished, favoring the State=s interests

in A >deterring and prosecuting recidivist criminal acts= @ when balanced against a defendant=s privacy interest.

Garvin, slip op. at 14, quoting People v. Garvin, 349 Ill. App. 3d 845, 856 (2004). Therefore,

based on Garvin, we uphold section 5-4-3 as constitutional on its face and as applied to the defendant.

CONCLUSION

Because we conclude that the challenged statutes do not violate defendant=s due process, equal

protection or privacy rights and are otherwise constitutional, the judgment of the circuit court is affirmed.

Affirmed.

O'MARA FROSSARD, J., concurs.

NEVILLE, J., concurs in part and dissents in part.

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JUSTICE NEVILLE concurring in part and dissenting in part:

I concur in that part of the opinion affirming Beard=s conviction for aggravated kidnapping

(720 ILCS 5/10-2 (West 2002)), but I write separately and dissent from that part of the majority=s

opinion affirming the trial court's order requiring Beard to register as a sex offender, pursuant to the

Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2002)) (Registration Act) and the Sex

Offender and Child Murderer Community Notification Law (730 ILCS 152/101 et seq. (West

2002)).

The facts establish that once Beard was convicted of aggravated kidnapping (720 ILCS 5/10-

2 (West 2002)), he was adjudicated a sex offender. 730 ILCS 150/2(B)(1.5) (West 2002). Although

aggravated kidnapping is a Registration Act offense, it does not contain sexual elements (720 ILCS

5/10-2 (West 2002)), 2 like the registration offense of sexual exploitation of a child. 720 ILCS 5/11-

2 A person commits the offense of aggravated kidnaping when he or she: A(1) Kidnaps for the purpose of obtaining ransom from the person kidnaped or from any other person, or (2) Takes as his victim a child under the age of 13 years, or a severely or profoundly mentally

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9.1 (West 2002) 3. Finally, the facts do not establish that Beard engaged in a sexual act with the two

kidnap victims under 18 years of age, or that Beard had an intent to engage in a sexual act with the

minor kidnap victims.

While I accept the fact that there is a compelling need to protect children from those in our

society who commit sexual offenses upon them, Beard and others convicted of the offenses in

section 2(B)(1.5) of the Registration Act are brought within the purview of the Registration Act for

offenses that do not involve the commission of sexual acts on children. If the majority is correct that

Athe General Assembly decided to protect the children of Illinois from sex crimes by creating the

Registration Act,@ how is that purpose served by forcing defendants to register who have not been

convicted of engaging in sexual acts with children? Slip op. at 6, citing People v. Fuller, 324 Ill.

App. 3d 728, 732-33 (2001). I note the majority's reliance on Fuller. The Fuller court justified the

inclusion of aggravated kidnaping, an offense without a sexual element, in the group of sexual

retarded person, or (3) Inflicts great bodily harm, other than by the discharge of a firearm, or commits another felony upon his victim, or (4) Wears a hood, robe or mask or conceals his identity, or (5) Commits the offense of kidnaping while armed with a dangerous weapon, other than a firearm ***, or (6) Commits the offense of kidnaping while armed with a firearm, or (7) During the commission of the offense of kidnaping, personally discharged a firearm, or (8) During the commission of the offense of kidnaping, personally discharged a firearm that proximately caused great bodily harm, permanent disability, permanent disfigurement, or death to another person.@ 720 ILCS 5/10-2 (West 2002). 3 A person commits the offense of sexual exploitation of a child "if in the presence of a child and with intent or knowledge that a child would view his or her acts, that person: (1) engages in a sexual act; or (2) exposes his or her sex organs, anus or breast for the purpose of sexual arousal or gratification of such person or the child." A person also commits the sexual exploitation of a child if that person "knowingly entices, coerces, or persuades a child to remove the child's clothing for the purpose of sexual arousal or gratification of the person or the child, or both." 720 ILCS 5/11-9.1 (West 2002).

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offenses with sexual elements (see 730 ILCS 150/2(B)(1) (West 2002)) Abecause aggravated

kidnapping is often a precursor to more grievous sexual offenses.@ Slip op. at 7, citing Fuller, 324

Ill. App. 3d at 733. While the majority relies on the Fuller court's statement that aggravated

kidnaping is often a precursor to more grievous sexual offenses, neither the majority nor the Fuller

court supports this statement with a citation to a scientific study that found a nexus between

aggravated kidnaping and the sex offenses codified in section 2(B)(1) of the Registration Act. See

730 ILCS 150/2(B)(1)(West 2002). Therefore, to the extent the majority relies on the Fuller court's

statement, its reliance is misplaced.

"The constitution and statutes of this State provide *** that no person shall be convicted of

an offense which he has not been charged with having committed." People v. Lewis, 83 Ill. 2d 296,

300 (1980), citing Ill. Const. 1970, art. I, '' 2, 7, 8; Ill. Rev. Stat. 1979, ch. 38, pars. 111-3, 113-1,

113-4. I think the Lewis rule should be followed in this case: a person convicted of aggravated

kidnaping of a child under 18 years of age should not be forced to register as a sex offender when he

has not been charged with or convicted of a sex offense like the sex offenses codified in section

2(B)(1) 4 of the Registration Act. People v. Lewis, 83 Ill. 2d at 300. Given the facts in Beard, Athere

is no rational basis for requiring defendant to register as a sex offender where he has no history of

4 "(B) As used in this Article, 'sex offense' means: (1) A violation of any of the following Sections of the Criminal Code of 1961: 11-20.1 (child pornography), 11-6 (indecent solicitation of a child), 11-9.1 (sexual exploitation of a child), 11-15.1 (soliciting for a juvenile prostitute), 11-18.1 (patronizing a juvenile prostitute), 11-17.1 (keeping a place of juvenile prostitution), 11- 19.1 (juvenile pimping), 11-19.2 (exploitation of a child), 12-13 (criminal sexual assault), 12-14 (aggravated criminal sexual assault), 12-14.1 (predatory criminal sexual assault of a child), 12- 15 (criminal sexual abuse), 12-16 (aggravated criminal sexual abuse), 12-33 (ritualized abuse of a child). An attempt to commit any of these offenses." 730 ILCS 150/2(B)(1) (West 2002).

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committing sex offenses and his offense of aggravated kidnaping was not sexually motivated and

had no sexual purpose.@ People v. Johnson, 363 Ill. App. 3d 356, 363-64 (2006) (Athe Registration

Act *** violates [defendant=s] substantive due process rights under the state and federal constitutions

where [defendant=s] designation as a sex offender bears no rational relationship to the State's interest

in protecting the public from convicted sex offenders@). Finally, in my opinion, Registration Acts

serve a useful purpose, but if a defendant is convicted of kidnaping, he should be forced to register

as a kidnapper and not as a sex offender.