In July of 2002, the Illinois Supreme Court issued its decision in the case of In re Detention of Lieberman.1 The Circuit Court of Cook County denied Lieberman’s motion to dismiss the State’s petition to commit him as a sexually violent person under the Sexually Violent Persons Commitment Act (the "Commitment Act"). The court certified for interlocutory appeal the question of whether rape was within the parameters of a sexually violent offense as defined under the Commitment Act.2 The First District Appellate Court answered the question in the negative.3 Justice McMorrow, writing for the Illinois Supreme Court, reversed the judgment of the Appellate Court and determined that rape did fall within the category of violent sexual offenses, basing the decision on a review of the legislative history and intent behind the enactment of the new sex offense statutes.4
Brad Lieberman, the defendant, was convicted in 1980 of six counts of rape and one count of attempted rape.5 On January 6, 2000, three days prior to his scheduled release date, the State filed a petition to have him released into the custody of the Department of Human Services as provided for by the Commitment Act.6 The State asserted (1) that he was a "sexually violent person" as defined by the Act,7 (2) that he suffered from mental disorders, and (3) that there was a continuing threat that he would perpetrate acts of sexual violence in the future, and argued that the combination of those three factors subjected him to civil detention under the Commitment Act.8 Lieberman contended that because he was convicted of rape, a crime abrogated by the rewriting of Illinois’ sex offense statutes, his conviction was not included in the "violent sexual offenses" defined and governed by the Act. He argued, further, that the omission of the crime of rape from the list of specific crimes enumerated in the Act indicated a purposeful exclusion by the Illinois Legislature.9
The threshold question presented by this case was whether the legislature intended for the abrogated crime of rape to be "subsumed" into the subsequently created crimes of criminal sexual assault and aggravated criminal sexual assault.10 Recognizing that the primary objective of statutory construction is to ascertain the intent of the legislature,11 the Lieberman court first examined the legislative purpose behind repealing the offense of rape and creating a new statutory scheme for the prosecution of sexual offenses.12
The court, relying on its previous decision in People v. Haywood,13 found that the Criminal Sexual Assault Act, which repealed the existing sexual offense statutes including rape,14 created a more inclusive, gender-neutral determination of the criminality of sexual assaults by eliminating the distinction between sexes.15 A review of the legislative debates revealed that the objective of rewriting the statutes was to create a more expansive set of laws that more accurately reflected the fact that rape comes in many forms, some of which were not adequately being covered by the statutes in force at that time.16 Consequently, by promulgating more inclusive laws, the legislature hoped to facilitate an increase in the number of convictions for sexual crimes.17
Further support for the proposition that the abolished offense of rape was intended to be "subsumed" by the subsequent statutes developed from a comparison between the prior offense of rape and the new offenses of criminal and aggravated criminal sexual assault, and the elements required for each.18 The offense of rape occurred only when the offender was male and the victim female: the charge of sexual assault, however, makes no such distinction.19 In addition, the law no longer requires a demonstration of the victim’s state of mind, but rather concentrates on the behavior of the offender.20 The new statutes allow an individual to charge his or her spouse with sexual assault, providing further evidence of a broadening of the definition of sexual offenses.21 Finally, the definition of "penetration" in the context of sexual offenses has been liberalized to include any "contact or intrusion, however slight."22 This is in stark contrast to the prior rape statute, which limited a definition of penetration to that of "the female sex organ by the male sex organ," disallowing for prosecution of any other type of sexual contact.23
The court concluded that, based on these comparisons, the legislature intended to construct a less restrictive definition of sexual offenses and ultimately, the former crime of rape was to be "subsumed" into the new offenses of criminal and aggravated criminal sexual assault.24 In light of that conclusion, the court determined that the underlying conduct that resulted in a rape conviction for the defendant would also have subjected him to prosecution under the new statutes.25 Therefore, the former offense of rape, which had been "subsumed" into the offense of criminal or aggravated criminal sexual assault, fell within the category of sexually violent offenses listed in the Commitment Act.26
As further support for its conclusion, the court noted that after the State’s petition for commitment of the defendant had been filed but before the case was decided, the legislature amended the statute to include the sexual offenses defined by the former laws, such as rape, deviate sexual assault, and indecencies with a child.27 Lieberman argued that because this amendment constituted a significant change in the law, the original intent of the legislature must have been to exclude the crime of rape from the list of crimes justifying commitment.28 However, the court rejected this assertion because although there is a presumption that an amendment is intended to change the law, that presumption can be rebutted if the circumstances prompting the amendment indicate that the amendment was intended only as an interpretation of the original law.29 In support of that proposition, the court cited terms from the House Bill debate on the proposal for the amendment, such as "cleanup language" and "overlooked," used in reference to the former crimes.30 The court found that such terms indicated the legislature’s purpose was clarification, as opposed to a substantial change in the law as it existed,31 and held, therefore, that the amendatory language was originally intended for inclusion in the Commitment Act.32
Because determining the intent of the legislature also often involves a survey of the "reason and necessity for the law [and] the evils sought to be remedied,"33 the Lieberman court bolstered its conclusion by citing portions of the legislative debates which reveal that the Commitment Act was designed to keep the communities safe by preventing those offenders who pose a threat from reentering society.34 The Act was fashioned specifically to keep repeat offenders off of the streets.35 The court dismissed the defendant’s claim that the amendment was governed by the rule of statutory construction, expressio unius est exclusio alterius, which states that any item omitted from a statute’s list is an intentional exclusion by the legislature.36 According to the court, the maxim is a rule of statutory construction rather than a rule of law. Furthermore, that rule is not only subordinate to the cardinal rule that legislative intent governs, but also that it is surmountable when there is a strong showing of contradictory legislative intent.37
Finally, as a function of statutory construction, there is a presumption against "absurdity,"38 and the court found that the defendant’s suggested reading of the applicable section of the Commitment Act would result in absurd consequences.39 The proposed interpretation would absolve an entire class of violent sex offenders (rapists) from consideration for an additional period of detention, and would therefore release them back into the precise communities which the Act was designed to keep safe. The court considered this interpretation absurd and a prejudice of the public interest and refused to adopt it.40
In conclusion, the Illinois Supreme Court determined that was a "sexually violent offense" within the meaning of the Commitment Act, and that, therefore, Lieberman, who had been convicted of rape, fell within the definition of a "sexually violent person" for purposes of the Act.41
1 201 Ill. 2d 300, 776 N.E.2d 218 (2002).
2Lieberman, 776 N.E.2d at 221.
4Id. at 232.
5 Ill.Rev.Stat.1981, ch. 38, par. 11-1(a).
6Lieberman, 776 N.E.2d at 221, citing 725 ILCS 207/15 (West 1998).
7Lieberman, 776 N.E.2d at 221, citing 725 ILCS 207/5(f) (West 1998).
8Lieberman, 776 N.E.2d at 221; 725 ILCS 207/15(b) (West 1998).
9Lieberman, 776 N.E.2d at 225.
11Id., citing Michigan Ave. Nat’l Bank v. County of Cook, 191 Ill.2d 493, 503-504, 732 N.E.2d 528, 535 (2000).
12Lieberman, 776 N.E.2d at 225.
13118 Ill.2d 263, 271, 515 N.E.2d 45, 49 (1987).
14Ill.Rev.Stat.1983, ch. 38, par. 11-1 to 11-10.
15Lieberman, 776 N.E.2d at 226.
19Id. at 227.
26Id. at 228.
27Id. at 230, citing 725 ILCS 207/5(e)(1.5) (West 2000).
28Lieberman, 776 N.E.2d at 230.
29Id. (quoting People v. Parker, 123 Ill.2d 204, 211, 526 N.E.2d 135, 138 (1988).
30Id. at 231.
32Id. at 231-32.
33Id. at 225, citing People v. Pullen, 192 Ill.2d 36, 733 N.E.2d 1235 (2000).
34Lieberman, 776 N.E.2d at 228-229.
35Id. at 229.
37Id. at 229, (citing N. Singer, 2A Sutherland on Statutory Construcat 29.tion § 47.23, at 315 (6th ed. 2000).
38Id. at 223, citing Michigan Ave. Nat’l Bank, 191 Ill.2d at 503-504, 732 N.E,2d at 535.
39Lieberman, 776 N.E.2d at 229.
41Id. at 232.
Tessa S. Bromley is a second-year law student at the Northern Illinois University College of Law. She is the Secretary for the Student Bar Association, the Secretary for the Public Interest Law Society and a member of the Community Life Committee and the Women’s Law Caucus. She plans to be a criminal prosecutor.