HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/DEMPSEY.ASC

Text File | 1993-01-14 | 77KB | 1,421 lines

/* This case is reported in 610 N.E. 2d 208 (Ill.App. 5th Dist.
1993).  In this criminal case, the lower court referred to
persons with HIV as being in need of quarantine and being similar
to "rabid dogs." The defendant, convicted of HIV sexual battery
was found to be entitled to resentencing before a different Judge
due to a perceived prejudice of the Judge, and the use of non-
statutory aggravating circumstances. */

The PEOPLE of the State of Illinois,

Plaintiff-Appellee,

v.

Randall Lee DEMPSEY, Defendant-Appellant.

Appellate Court of Illinois,

Fifth District.

March 19,1993.



Justice WELCH delivered the opinion of the court:

Defendant, Randall Lee Dempsey, appeals from his convictions and
sentences for the offenses of aggravated criminal sexual assault
and criminal transmission of HIV.  He was charged by amended
information, filed in the circuit court of Williamson County on
July 2, 1990, with the offenses of: criminal transmission of HIV
in that on or about May 27 or 28,1990, with knowledge that he was
infected with HIV, defendant engaged in intimate contact with the
victim; and aggravated criminal sexual assault in that on or
about the same date, while over 17 years of age, defendant
knowingly committed an act of sexual penetration with the victim,
who was under 13 years of age, in that defendant placed his penis
in the mouth of the victim.  Following a jury trial, held October
10,11 and 12, 1990, defendant was convicted on both counts.  His
sentencing hearing was held December 27, 1990.  The circuit court
of Williamson County sentenced defendant to seven years'
imprisonment on his conviction for criminal transmission of HIV
and to an extended term of 33 years' imprisonment on his
conviction for aggravated criminal sexual assault, and ordered
the sentences to run concurrently.

The following evidence was adduced at defendant's trial. The
victim testified that he was nine years old and his birthday was
July 18. He resides with his mother and father. The victim stated
he has two brothers, and he stated their names. The victim
identified one of his brothers, Randy, the defendant, in the
courtroom.  The victim testified that he also has two sisters,
and he stated their names. He testified he attends third grade,
and he named the school and his teacher.

The victim was shown a doll and asked to identify certain body
parts thereon.  He identified hair, eyes, mouth and "bottom." He
indicated that he knew what "private parts" were and, when asked
to identify them on the doll, pointed to and touched the penis.
When asked if anybody had ever touched his private parts, he
responded that his brother Randy had.  Using the doll, he
demonstrated that Randy had touched his penis.  When asked
whether Randy had done anything else to him that he did not like,
the victim testified that Randy had also placed a penny in his
ear and he had not liked it.  The victim was asked if Randy had
done anything else that he did not like, and the victim said
"no."

When asked whether Randy had put anything in his mouth, the
victim stated, "He put that in my mouth", pointing to the penis
on the doll.  With his finger, the victim demonstrated that
Randy's penis was erect when Randy put it in his mouth. Snot came
out of Randy's penis; it was soft and tasted "yukky".  The victim
spit the snot out in a trash can.

Randy indicated that he would give the victim a turtle.  Randy
told the victim not to tell his mom.  The incident occurred when
Randy and the victim were in bed in Randy's room at their
mother's house. The victim talked to his mother, about what had
happened, on the porch and in the car when they went for a drive.
He told her the truth in the car, and he was telling the truth in
court.  He testified that he still loved Randy.

On cross-examination, the victim testified that he and Randy had
separate bedrooms at their mother's house.  Randy never baby-sat
for the victim.  Randy had just moved back into his mother's
house around Christmas.  He often played soccer and baseball with
Randy. He was rarely alone with Randy.  When asked if Randy ever
touched or hurt him in any way, the victim responded that he had
when the victim slept in Randy's bed, but no other time. The
victim testified that on the night of the offense, it had been
his idea to sleep with Randy.  He got permission from both of his
parents. The victim was wearing ninja turtle sleepwear that
night. The trash can into which the victim spit the semen was in
the "liberty room".  The victim testified that the night before
the incident, Randy had put a penny in his ear.  The victim
denied that Randy had a gumball machine or any gum.  The offense
occurred in the morning.  The victim testified that it was light
outside and that the clock said 1:30 in the morning.

The victim stated that immediately after the offense, he went and
told his mother on the back porch. His mother then took him for a
drive.  When he returned, his father asked him about the offense
and he denied that it had happened.  He stated that he spoke with
his father in the car while his mother was present.  The victim
insisted that Randy had committed the offense.

The victim's mother is the one who disciplines him. The victim
testified that he has a gumball machine in his room.  It has
different colored gumballs in it. When the victim gets a gumball
he does not like, he spits it out in the trash can. Randy some
times gave the victim pennies to put in the machine.  The victim
then stated that he had never gotten a gumball he did not like
and had never spit one out. In response to leading questions, the
victim testified that Randy had given him a penny to put in the
gumball machine, he had gotten a white gumball that he did not
like and he had spit it out into a waste can.

On redirect examination, it was established that the victim did
not know when the month of May was, he did not know what
"immediately" meant, but he knew a gumball was not the same thing
as snot. The victim could not explain what the "liberty room"
was.  When asked if he knew the difference between the truth and
a lie, the victim said he did not.  He did state, however, that
if you tell a lie you "go down there to the devil", and he
pointed his finger downward. He stated that he did not know the
meaning of the word "difference"   The liberty room contains the
washing machine. This concluded the victim's testimony.

Outside the presence of the jury, defendant made a motion to
strike the victim's testimony for the reason that the evidence
showed that he was not competent to testify.  Defendant argued
that when asked whether he knew the difference between the truth
and a lie, the victim had said he did not.  The prosecutor argued
that the victim did know what a lie was and the consequence of
telling one, but that he had not understood the questions he was
asked by the attorneys. He pointed out that the victim had said
he did not understand the word "difference".  The victim did
state that when you tell a lie, you go to the devil, indicating
that he knew it was wrong to tell a lie.  It was up to the jury
to weigh the child's testimony.  The prosecutor also pointed out
that defendant had not asked for a competency hearing prior to
the child's testimony.  Defendant responded that he was not
limited in making a motion to strike the child's testimony but
could do so after that testimony.

The court ruled that a witness is presumed to be competent and it
appeared that the victim simply did not understand some of the
questions which were posed to him by the attorneys.  The court
found that the child was capable of communicating on the level of
a child. It was up to the jury to evaluate the weight to be given
the child's testimony. The court found the witness to be
competent and denied defendant's motion to strike his testimony.

At this point, the State called several witnesses who testified
that blood samples were taken of the defendant at Marion Memorial
Hospital, that those samples were tested for presence of the
human immunodeficiency virus (HIV) and that all tests showed a
positive result.  The witnesses testified to the procedures used
in drawing, handling and testing the blood samples and
established a chain of custody of the blood samples to
demonstrate that it was the defendant's blood which was tested.

The mother of the victim and of the defendant testified that she
has three sons and two daughters.  The defendant was born January
30,1956, and the victim was born July 18,1981.  Randy had been
born in California and had lived in California until November
1989. At that time, Randy moved to Marion to live with his
parents. He was quite ill.  He arrived in Marion a few days
before Thanksgiving.  He was taken immediately to the emergency
room at Marion Memorial Hospital. He was subsequently
hospitalized there, and blood tests were run to determine if he
was infected with HIV.

Randy's physician was Dr. Hyde. In December 1989, Dr. Hyde met
with Randy, his mother (the witness), his sister and her husband
and explained Randy's condition. At this time, Randy was living
at the home of his parents. Randy was prescribed medication and
at first took it regularly. After time, he became very lax in
taking it. Randy, his mother and father, and the victim lived
together in a three-bedroom house. Randy and the victim had
separate bedrooms. On only one occasion did the mother allow
Randy and the victim to sleep in the same room, and that is the
night that the offense occurred.  It was Memorial Day weekend,
1990. The mother explained that she had come home from church
that evening feeling tired and she had gone to bed.  She heard
Randy and the victim in the hall playing and making noise. She
got out of bed and told them to be quiet. The victim told her
that he was going to sleep with Randy.  She did not object. The
victim slept in Randy's room. The mother felt that Randy and the
victim were close and that the victim loved Randy. The mother
testified that the victim is in third grade and attends special -
education classes.

The morning after the victim slept in Randy's room, the mother
got up first. The victim then got up.  The mother noticed that
the victim was very quiet, that he refused breakfast and that he
did not act like himself.  The mother was concerned and took the
victim out on the back porch to question him. He refused to tell
her what was wrong. Eventually, the victim told the mother that
he and Randy had a secret. The mother told the victim that she
wanted to know his secret, but he refused to tell her.  He told
her that he had promised Randy that he would not tell.  They
remained on the porch for 10 minutes. The mother told the victim
to get dressed because she wanted to take him away from the house
and talk to him.  They drove a short distance from the house, and
the mother stopped the vehicle.  The victim still did not want to
tell her his secret. She threatened to spank him if he did not
tell her. The victim then told his mother that Randy had put his
"peenie" in his mouth. The mother asked him if he meant a penny
and the victim said no. She then asked him if he meant a penis,
and the victim said yes and pointed to his genital area. The
victim told the mother that Randy got snot in his mouth and he
did not like it.  The victim said that he spit it out in the
yellow trash can.  There is a yellow trash can in the laundry
room. The victim stated that Randy had promised to take him
turtle hunting if he kept their secret.

The mother then took the victim home, where she confronted Randy.
Randy denied the offense.  The victim looked at Randy and said,
"You did do it, Randy." The father of the victim and Randy then
took the victim out on the back porch and talked to him.  When
they came back in, the victim stated that the offense had not
happened.  The mother then dropped it.

Later that week, the mother began to question the victim again
about the incident. She finally told the victim that Randy was
very sick and could die, and that if the offense occurred, the
victim might also get sick. The mother knew that the victim was
frightened of death. She told the victim that he might also die.
The victim then told her that the incident did happen as he had
originally told her.  The victim knew that the incident was
causing some upset in the family. The mother explained that the
trash can into which the victim spit the semen had had a liner in
it, and the liner had been placed out for trash pickup. She did
not look in it for evidence to corroborate the victim's
accusation.

On cross-examination, the mother testified that Randy had been
married in California, but that he was separated from his wife
when he moved to Illinois. After being treated by Dr. Hyde,
Randy's condition dramatically improved.  His condition continued
to improve up until April 1990; he was not sick. In the spring of
1990, Randy moved out of his parents' home for a week and stayed
with his sister, who also lived in the area.  He then moved back
in with his parents.  He got a job.  Having Randy in the home did
create some burden and tension in the family.

The night of the offense, the mother, her husband and the victim
went to church. They returned home around 10:00 p.m. She went to
bed shortly thereafter, while the rest of the family remained up.
She heard Randy and the victim playing and scuffling in Randy's
room. She got up and told them to quiet down. The victim told her
he was going to sleep in Randy's room that night.

The next morning, the mother was the first to awaken.  The victim
got up a few minutes later and began watching television.  He
refused breakfast and said that he had a stomach ache. He was
very quiet and was not himself.  When she talked with the victim
on the porch she was rather stern with him.  When they went for a
drive, she threatened several times to spank him if he did not
tell her what had happened. The mother frequently spanked the
victim.  When the mother confronted Randy with the victim's
accusation, Randy angrily denied it.  The yellow trash can was in
the laundry room down the hall from Randy's room.  The week after
the incident, the mother questioned the victim about it three
times.  Although the victim had told other people that the
incident had not occurred, he never told the mother that it had
not occurred.

After seeing Dr. Hyde, Randy's condition began to improve and it
continued to improve through the spring. He appeared to have
recovered.  The mother did not believe that Randy was a
homosexual or a pedophile and had never seen any evidence of
either tendency.  She had never seen any evidence that Randy was
sexually attracted to the victim.  The victim had not been tested
for HIV.  Randy had been dating women since he returned to
Illinois.

On redirect examination, the mother explained that she intended
to have the victim tested for HIV at the appropriate time. She
testified that she disapproved of the homosexual lifestyle and it
was unlikely that Randy would display that type of behavior
around her.

Randy's physician, Dr. Thomas P. Hyde, was called to testify.
Prior to his testimony, the prosecutor filed a petition with the
court asking that Dr. Hyde be authorized to give testimony
regarding the medical condition and treatment of defendant. The
prosecutor indicated that Dr. Hyde's testimony was necessary to
prove that defendant had knowledge that he was infected with HIV,
an essential element of the offense of criminal transmission of
HIV. The prosecutor also argued that the physician-patient
privilege should not bar Dr. Hyde's testimony in that the case
arose out of a report of child abuse, one of the statutory
exceptions to the privilege.  Defendant argued that he had not
waived the privilege and that the statutory exception did not
apply. The court found that there was a compelling need for Dr.
Hyde's testimony to prove defendant's knowledge of his infection
and authorized his testimony, overruling defendant's objection.

Dr. Hyde testified that he is an internal medical doctor, an
oncologist and a hematologist.  As a hematologist, he specializes
in diagnosing disorders of the blood.  He has treated patients
with HIV.  Dr. Hyde treated defendant for HIV.  He met with
defendant and defendant's mother, sister-in-law and brother on
December 2, 1989, at Marion Memorial Hospital.  Defendant denied
any of the risk factors for HIV.  Dr. Hyde explained to defendant
that he was potentially infectious to others through transmission
of body fluids. Dr. Hyde met again with defendant and his family
members on December 12, 1989.  Defendant was advised that his
second blood test had also come back positive for HIV and that he
was certainly infected.  Defendant was prescribed AZT and an
antibiotic.  AZT is the only approved treatment for HIV. De
fendant was again advised that he was potentially infectious to
others.

Dr. Hyde testified that HIV can be transmitted through blood,
vaginal secretions and semen. The virus had also been found in
spinal fluid, saliva and tears, but it was not likely that it
could be transmitted through these fluids.

Dr. Hyde never told defendant that he was no longer infected with
HIV.  Defendant remains infected with HIV.

On cross-examination, Dr. Hyde testified that defendant's
condition improved after he began treatment with AZT.  Defendant
was advised that he needed to continue taking the AZT.  He had
none of the complications of AIDS.  Defendant told Dr. Hyde that
he thought he was getting better. Defendant had indicated to his
mother that he thought he was cured.

Jesse Crider, a child-protective investigator for the Department
of Children and Family  Services,  testified  that  he  is
charged with investigating reports of child neglect and abuse.
He investigated the allegations in the instant case.  He inter
viewed the victim on June 4, 1990, at the victim's residence.
Also present during the interview was Detective McCluskey of the
Williamson County sheriff's department. The victim was advised
that he was not in trouble and had not done anything wrong.

Crider first determined that the victim knew the difference
between the truth and a lie.  Crider then showed the victim a
drawing of a body and, pointing to various body parts, asked the
victim to name them. The victim identified hair,  eyes,  nose,
mouth, belly button and butt.  He had no name for breast or
penis.  Crider then asked the victim if he knew what private
parts were. The victim said yes and pointed to the groin and
buttocks. Crider asked the  victim  whether  anyone  had  ever
touched him in a private part, and the victim said that his
brother Randy had. The victim indicated using the drawing that
Randy had touched his penis. When asked whether Randy had done
anything else, the victim stated that Randy put his penis in the
victim's mouth, pointing to the penis on the drawing.  The victim
stated that snot came out of the penis, that it was slicky and
slimy and that he spit it out. Using his index finger to indicate
an erect or limp penis, Crider asked the victim what position
Randy's penis had been in.  The victim indicated that the penis
was erect.  The victim said that this occurred in Randy's bedroom
on Randy's bed.  Randy told the victim that it was their secret
and that he should not tell.  If the victim kept the secret,
Randy would get him a turtle or take him turtle hunting.  The
victim told Crider that he spit the "snot" out in a trash can in
the bedroom. On cross-examination, Crider testified that the
victim said the incident happened on the night he slept with
Randy.

Sergeant Robert McCluskey of the Williamson County sheriff's
department testified that he was present during the interview of
the victim on June 4, 1990.  His testimony corroborated that of
Crider. The victim indicated that Randy had been wearing
undershorts the night of the offense.

Outside the presence of the jury, defense counsel made a motion
to exclude the testimony of the State's next witness, a psy
chologist, Virginia Hoffman.  Defendant argued that Hoffman had
never treated, counseled or otherwise seen the victim, and
therefore her testimony was irrelevant and immaterial. The
prosecutor indicated that he was calling Hoffman to testify as an
expert about a post traumatic stress syndrome often suffered by
victims of sexual abuse, as allowed by statute.  The court denied
defendant's motion and allowed the witness to testify.

Virginia Hoffman testified that she is the senior counseling
psychologist at the counseling center at Southern Illinois
University.  She also has a contract with the Department of
Children and Family Services to work with intrafamilial sexual
abuse. She is a licensed psychologist in the State of Illinois.
Hoffman discussed her educational and employment background and
experience at length. She was qualified as an expert witness in
the field of child sexual abuse syndrome.

Hoffman was asked about posttraumatic stress syndrome and
explained that it is the aftereffects of suffering trauma.  It
may manifest itself through flashbacks, nightmares, and with a
child it might result in a recurrence of earlier behaviors such
as bed-wetting. Children who have been sexually abused may suffer
from a form of the syndrome, and this theory is accepted in the
psychological community.

Hoffman was then asked about the child sexual abuse accommodation
syndrome. She explained that the first characteristic of this
syndrome is secrecy. Sexual abuse almost always happens in
secret, and the child understands that it is a secret he or she
must keep.  The child will keep the secret both to protect
himself and sometimes to protect the offender.

Another characteristic of the syndrome is helplessness.  Children
are naturally helpless.  They do not have words for things and
have little or no understanding of sex. They are helpless to
question or object to the abuse, and they trust the person who is
abusing them.

The third characteristic which has been studied and documented in
literature is referred to as entrapment and accommodation. The
abuser will win the child's trust and confidence through
apparently innocent activities and then keep the child entrapped
through the secret. The child accommodates the abuse by not
telling and by surviving it and allowing it to continue.

The fourth characteristic of the syndrome is delayed and
unconvincing disclosure. The child will tell about the abuse in
bits and pieces over a period of time.  A child who tells the
whole story of abuse in a coherent way is often suspected of hav
ing been coached or set up by a parent. Children are usually very
unconvincing and confused in telling about the abuse.  Because
they have no prior knowledge or experience of sex, they have no
way of organizing the information. Being pushed may be as
important to a child as being sexually penetrated.   Children
tend to make omissions in telling about the abuse.

The fifth characteristic of the syndrome is retraction. When the
disclosure of intrafamilial abuse is made, it is overwhelming to
the family.  The child begins to notice that it is upsetting to
the family and so retracts the story. The child thinks that if he
or she takes it back, the family will be okay.  Children are also
protective of the offender, who is a trusted family member.

The syndrome deals with intrafamilial abuse. It is based on
observations of thousands and thousands of cases over a number of
years in a whole variety of settings all over the country.

On cross-examination, Hoffman testified that she had never
evaluated the victim. The child sexual abuse accommodation syn
drome was first published in 1982, and there has been ongoing
literature and continued investigation and evaluation in this
field.

At this point, the State rested its case. Defendant's motion for
a directed verdict was denied.

The defendant called Jesse Crider to testify. He testified that
prior to interviewing the victim on June 4,1990, he interviewed
the mother.  Also present was Detective McCluskey of the
Williamson County sheriff's department.  Crider was not sure
whether the mother told him that the victim had said defendant
put a "penny" or "peenie" in his mouth. His report originally
contained the word "peenie", but he later changed it to "penny".
He was not sure why he changed it.

Sergeant Robert McCluskey testified for defendant that his report
contained the word "penny", that is, that the victim had told his
mother that defendant put a penny in his mouth.

One of the sisters of the defendant and the victim testified.
She was present on most occasions when defendant met with Dr.
Hyde.  Randy first saw Dr. Hyde at the end of November and last
saw him in the middle of April.  The sister testified that Dr.
Hyde told them that once Randy's blood count went down, it would
never come back up.  However, Randy's blood tests showed that his
blood count had come back up.  Dr. Hyde never explained this
apparent inconsistency, although he was asked about it several
times.  On cross-examination, the sister testified that she was
present on two occasions when Randy was told he was infected with
HIV.

Defendant's father testified that he is also the victim's father.
The night of the offense, the mother was the first to go to bed.
Randy also went to bed. The victim asked his father if he could
sleep with Randy. The father told the victim to ask his mother,
and his mother consented. The father awakened the next morning
and found the mother and the victim awake. Randy was still
sleeping. The mother and the victim left for about 20 minutes
that morning. When they returned, Randy was up. The mother asked
the father to take a ride with her and the victim, which he did.
When they returned, the mother confronted Randy with the victim's
accusation. Randy denied it. The father took the victim out on
the porch to talk to him.  The mother and Randy had been arguing
about a penny.  The father asked the victim to explain to him
about the penny. The victim told the father that he had gotten
some gum, that it had tasted "yuckie" and that he had spit it out
in the trash can.  The victim started crying and told his father
that he was in trouble because Randy had not done anything to
him.  The father called the mother out on the porch, and the
victim told her that Randy had not done anything to him.  The
mother took the victim inside and made him apologize to Randy.
The victim told Randy that he did not do it and that he was
sorry.  During that week, the victim was consistent that Randy
had not done anything to him.  On Saturday, the victim changed
his story again. However, since then, the victim has told the
father two or three times that Randy did not do anything to him.
On cross-examination, the father admitted that when he was
interviewed by Sergeant McCluskey on June 5, 1990, he did not
tell McCluskey that the victim had said anything about getting a
gumball and it tasting "yuckie".

Defendant testified in his own behalf. He is 34 years of age.  He
testified that Dr. Hyde explained to him that HIV attacks your
blood and if the white blood cells are destroyed they can never
replace themselves.   In  November,  defendant's white blood
count was very low, but in February or March it had improved to a
normal level.  When defendant asked Dr. Hyde about this, Hyde
said he had no explanation. Defendant last saw Dr. Hyde in late
March. From February to the present, defendant has felt very
good.

Defendant testified that there is no trash can in his bedroom.
The victim has a gum-ball machine in his room.  On the night of
the offense, Randy had gone to bed when the victim came in and
asked Randy if he could sleep with him.  Randy agreed. The victim
told Randy that their mother had said it was okay.  Before they
went to sleep that night, the victim asked Randy if Randy would
get him a turtle. They then went to sleep. The next morning, the
victim got up while Randy was still sleeping. The victim came
into the room and stuck a penny on Randy's face while Randy was
sleeping.  Randy woke up, took the penny off his face and stuck
it on the victim's tongue.  Randy told the victim to use the
penny to get a gumball out of the machine. The victim left and
Randy went back to sleep.

When Randy got up, the mother and the victim were gone from the
house.  When they returned, the mother asked Randy if he had put
his penis in the victim's mouth. Randy said no.  In court, Randy
denied that he had ever touched the victim's penis with his hand
or that he had ever put his penis in the victim's mouth.

On cross-examination, defendant testified that he had been
advised by Dr. Hyde that he had tested positive for HIV. At the
end of December, Hyde prescribed AZT for defendant. Defendant
took the AZT in January but over the next few months took less
and less of it.  In April he was hardly taking any of it.  At the
time of trial, defendant was taking AZT while incarcerated in
jail.  Defendant testified that on the date of the offense, he
was feeling so good, he did not actually believe that he was
infected with HIV.  Dr. Hyde had never told defendant that he was
cured of the infection.  Defendant admitted that when he was
interviewed by Sergeant McCluskey on June 7,1990, he did not tell
McCluskey anything about the victim sticking a penny on his face.

This concluded the evidence.  After due deliberation, the jury
returned verdicts of guilty on both counts.

Defendant's first argument on appeal is that the trial court
erred in failing to determine the child witness' competency as a
witness prior to his testimony and in failing to strike the
witness testimony when his incompetency later became apparent.
At the time of trial, the child witness, the victim, was nine
years of age.  A statute then in effect, section 106A-5 of the
Code of Criminal Procedure of 1963, required that before allowing
a child witness under the age of 12 years to testify in a sexual
assault case, the court must first determine in camera the
child's competency to testify. (Ill.Rev.Stat.1989, ch. 38, par.
106A-5.) There is no question in the case at bar that the trial
court failed to hold such an in camera competency hearing.
However, also in effect at the time of defendant's trial was
section 115-14 of the Code of Criminal Procedure of 1963, which
provides that every person, regardless of age, is qualified to be
a witness, but that a party may move the court prior to a
witness' testimony to request that the court make a determination
if the witness is competent to testify.  (Ill.Rev.Stat.1989, ch.
38, par. 115-14.) The State argues that this statute controls
over section 106A-5 because section 106A-5 was repealed by the
legislature effective January 1, 1992 (Pub.Act 87-345). The State
argues that the fact that section 106A-5 conflicted with section
115-14 and was subsequently repealed indicates that the
legislature did not intend to require a judicial determination of
the competency of child witnesses unless one of the parties
challenged the child's competency before the testimony was heard.
Therefore, the State argues, - the trial court did not err in
failing to conduct a competency hearing in the absence of a
motion by defendant. Furthermore, the State argues, the repeal of
section 106A-5 should be applied retroactively. The State argues
that we should apply the law as it exists today, reminding us
that section 115-14 does not require a pretrial competency
hearing in the absence of a motion by a party.  Thus, the State
argues, applying section 115-14, the trial court did not err in
failing to hold a competency hearing pretrial where defendant nei
ther moved for such a hearing nor filed a motion in limine to
exclude the child's testimony.

[1]  While we find the State's argument interesting, we have no
need to determine whether the trial court erred in failing to
conduct a pretrial competency hearing for, where the witness is
properly found competent to testify after a motion to strike his
testimony, there can be no prejudice to defendant as a result of
the failure to hold a pretrial competency hearing.  Thus, we find
that even if the trial court erred in failing to hold a pretrial
competency hearing pursuant to section 106A-5, the error was
harmless if the child witness was properly found competent to
testify following defendant's motion to strike the witness'
testimony.  We turn then, to the question of whether the witness
was properly found to be competent to testify.

Defendant correctly argues that a witness is incompetent to
testify if he is incapable of understanding the duty to tell the
truth.  (Ill.Rev.Stat.1989, ch. 38, par. 115-14(b)(2).) The
victim was asked the following questions and gave the following
answers regarding his understanding of the duty of a witness to
tell the truth:

"Q.  Do you know the difference between the truth and a lie, *

A.   No.

Q.   You don't?

A.   (Nods negatively.)

Q.   Well what happens if you tell a lie?

A.   You go down there to the devil. (Witness points finger
down.)

Q.   Do you know, when I say the word 'difference', do you know
what that means.  Do you know what the word 'difference' means?

A.   No.

Q.   So where do you go if you tell a lie?

A.   You go to the devil.

Q.   Okay, and like you said, your Mom would be the one that
spanked you if you told a lie, right?

A.  Yeah.

Q.  So, do you try to tell your Mom the truth?

A.  Yes."

Following this testimony, defendant moved to strike the victim's
testimony. After having seen the witness testify, the court found
that he was competent to testify and that it was for the jury to
evaluate the weight to be given his testimony.

[2, 3]  The question of a witness' competency is to be determined
by the trial judge, and a reviewing court may not disturb such a
determination unless it is clear that the trial judge abused his
discretion or misapprehended some legal principle. (People v.
Mack (1991), 216 Ill.App.3d 239, 245,160 Ill.Dec. 69, 73, 576
N.E.2d 1023,1027.) As the court expressed in Mack, the cold black
and white of the record is a poor substitute for the personal
observation of the fact finder in determining competency.  The de
meanor of the witness, while apparent to the trial court, is
hidden from a court of review. Thus, while decisions as to compe
tency of a witness are reviewable, in light of the trial court's
opportunity to take into account the demeanor, appearance and con
duct of the witness at trial, competency determinations will be
overturned only when it appears that the trial judge has abused
his discretion.  People v. Garcia (1983), 97 Ill.2d 58, 75, 73
Ill.Dec. 414, 420, 454 N.E.2d 274, 280; People v. Williams
(1991), 147 Ill.2d 173, 212-18,167 Ill.Dec. 853, 867, 588 N.E.2d
983, 997.

[4, 5]  Furthermore, it is not necessary for the child to give
perfect answers to questions asked during the competency de
termination or at trial to be deemed a competent witness. (People
v. Mitchell (1991), 215 Ill.App.3d 849, 857, 159 Ill.Dec. 409,
415, 576 N.E.2d 78, 84.)  One imperfect response to a question
would not invalidate a finding of competency in light of what is
indicated by the totality of the responses. (People v. Born
(1987), 156 Ill.App.3d 584, 58889, 108 Ill.Dec. 699, 701, 509
N.E.2d 125,127.)  As the prosecutor explained in the instant
case, some of the problems with the victim's testimony were a
result of the phrasing of the questions asked of him, and not of
his incompetency.  The victim testified that he knew that if he
told a lie he would "go to the devil", indicating his
understanding that it was morally wrong, or sinful, to tell a
lie.  The victim also understood that he might be spanked if he
told a lie to his mother.  As expressed in People v. Ridgeway
(1990), 194 Ill.App.3d 881, 885,141 Ill.Dec. 603, 605, 551 N.E.2d
790, 792:

"The record in the present case indicates the great difficulty in
dealing with young children as witnesses.  Children are necessary
witnesses in most cases involving sexual abuse of youngsters.
Such wrongful conduct takes place in secrecy and the evidence,
other than the child's complaints, is often limited.  The child
witness is placed in front of strange faces and required to
relate unpleasant encounters. The court appearance itself is a
traumatic experience. Previous decisions of the appellate and
supreme courts are little help in deciding the issue now
presented to us. Each case rests on its own facts, and each child
is different. In this case, the trial judge finally cut through
the contradictions created by the examination by the State and
the defense. He observed the * * * boy, heard his responses, and
decided that his testimony on the crucial issue would be com
petent.  We cannot say his decision was an abuse of discretion.
We are fully aware of the value of the actual observation of the
child in the courtroom in making competency decisions of this
kind."

[6]  A trial court may determine a witness' competency to testify
by observing the witness' demeanor and ability to testify during
trial.  (People v. Ford (1985), 139 Ill.App.3d 894, 901, 94
Ill.Dec. 574, 579, 488 N.E.2d 573, 578.) While we think a more ~n-
depth hearing into the witness' competency in the instant case
may have been desirable, we do not think the deficiencies in the
victim's testimony are sufficient for us to substitute our
judgment for that of the trial judge who observed the witness.
The trial court did not err in finding the victim competent to
testify, and defendant was not prejudiced by the trial court's
failure to hold a pretrial competency hearing.

[7]  Defendant's second argument on appeal is that his
convictions must be reversed because the evidence was insuffi
cient to prove him guilty beyond a reasonable doubt where the
victim recanted his accusations and was not a competent and
credible witness regarding the alleged sexual assault.  Defendant
argues that the victim's repeated denials that the sexual assault
occurred make his testimony that he was assaulted unworthy of
belief.  We note that evidence of the victim's denials that the
assault occurred was before the jury, as was his testimony that
it did occur. Thus, the jury was aware of not only the existence
of the recantation but also its substance. It is well settled
that the determination of a witness' credibility is exclusively
within the province of the jury, and it is for the jury to
resolve any conflicts in the evidence. People v. Collins (1985),
106 Ill.2d 237, 261-62, 87 Ill.Dec. 910, 911, 478 N.E.2d 267,
277.

The jury in the instant case was fully advised as to the
circumstances under which the victim made his accusations and the
circumstances under which he recanted them.  The jury chose to
believe the victim's trial testimony that he was sexually
assaulted, and after reviewing the entire record on appeal, we
are not prepared to say that the jury's conclusion is unreason
able.  The victim's testimony at trial was corroborated by
similar statements he had made to his mother and investigators
Crider and McCluskey.  The jury may have disbelieved the evidence
of recantation for several reasons: they may have disbelieved the
witnesses who testified to the recantation because, although the
witnesses were certainly concerned with the victim's best
interests, they also had an interest in seeing the defendant
acquitted and freed to return to them, his family; or, if they be
lieved those witnesses, they could have believed that the
victim's recantation, motivated by a desire to end the distress
in his family and have his beloved brother re turned to the
household, was false.  The victim was surely aware that defendant
was in jail as a result of his accusation and that his entire
family was upset. Both of the victim's parents testified that he
loved his brother, the defendant.  The victim's motivation to
falsely recant is evident.

In the instant case, the evidence of the witness' recantation was
before the jury, just as was the evidence of the witness'
accusation. The jury was in the best position to evaluate the
credibility of the witness and determine whether to believe his
accusation or his recantation. A reviewing court may only disturb
the jury's finding as to credibility when the evidence is so im
probable or unsatisfactory as to raise a reasonable doubt of
guilt.  (People v. McCarthy (1981), 102 Ill.App.3d 519, 522, 58
Ill.Dec. 193,195, 430 N.E.2d 135,137.) The jury's determination
in the instant case is reasonably supported by the evidence, and
we will not disturb it on review.

[8]  We point out that this is not the typical recantation case,
where the recantation occurs after defendant's conviction and is
never presented to the jury.  In such a case, the recantation is
relied upon to urge a new trial for the defendant. It has long
been recognized that evidence of recantation is inherently
unreliable and insufficient to warrant a new trial.  (People v.
Marquis (1931), 344 Ill. 261, 265,176 N.E. 314, 315.) A court
will usually deny a new trial based on the ground of recanted
testimony where it is not satisfied that such testimony is true.
(Marquis, 344 Ill. at 265, 176 N.E. at 315.)  Only in extraordi
nary and unusual cases will recanting testimony of witnesses be
regarded as sufficient ground for a new trial.  (Marquis, 344
Ill. at 265, 176 N.E. at 315.)  This remains the law to date.
People v. Dotson (1987), 163 Ill.App.3d 419, 422,114 Ill.Dec.
563, 566, 516 N.E.2d 718, 721.

While further evidence of the victim's recantation was adduced at
the hearing on defendant's posttrial motion for a new trial,
including evidence that the victim had told his mother and sister
that he had lied at trial, the trial court did not err in denying
defendant's motion for a new trial based on this recanting
testimony. The victim himself did not testify at the posttrial
motion hearing and recant his trial testimony. The jury had
already heard of the victim's recantations and had determined not
to believe that evidence but instead to believe the victim's
testimony at trial.  The trial judge, as finder of fact at the
posttrial motion hearing, was charged with determining the
credibility of this recanting testimony. (Collins, 106 Ill.2d at
26162, 87 Ill.Dec. at 911, 478 N.E.2d at 277.) Again, we will not
disturb his determination where it is reasonably supported by the
evidence.

Defendant also argues that he was not proved guilty beyond a
reasonable doubt where the victim was not a competent witness,
rendering his testimony and the evidence of his corroborating
hearsay statements to his mother, Crider, and McCluskey
inadmissible.  We have already discussed the competency of the
victim to testify and found that he was competent and that his
testimony was properly admitted.  Defendant's instant argument
with respect to the sufficiency of the evidence must, therefore,
fail.

[9]  Defendant's next argument relates to the admissibility of
the testimony of the State's expert witness, Virginia Hoffman.
Defendant first argues that her testimony as to child sexual
abuse accommodation syndrome was improperly admitted because no
sufficient foundation was established to demonstrate the
reliability of the evidence.  Defendant argues that section 115-
7.2 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1989,
ch. 38, par. 115-7.2) requires that before evidence of any
posttraumatic stress syndrome, including child sexual abuse
accommodation syndrome, may be admitted, it must be demonstrated
that the syndrome is recognized and accepted as valid by experts
in the field.  Defendant argues that although Hoffman testified
that child sexual abuse accommodation syndrome is documented in
the field of psychology as a form of post-traumatic stress
syndrome, there still re mains a great deal of controversy in the
field of psychology as to the validity of the syndrome.
Therefore, defendant argues, Hoffman's testimony was not
sufficient to establish the recognition and acceptance of the
syndrome as valid.

In People v. Nelson (1990), 203 Ill.App.3d 1038,149 Ill.Dec. 161,
561 N.E.2d 439, this Court recognized the admissibility of evi
dence regarding the child sexual abuse syndrome, also known as
the child sexual abuse accommodation syndrome, in the face of
defendant's argument that the syndrome was not recognized in the
field of psychology. This court found that the syndrome is indeed
recognized in the field of psychology, although it may not be
accepted by all psychologists.  In People v. Was-son (1991), 211
Ill.App.3d 264, 270, 155 Ill.Dec. 710, 715, 569 N.E.2d 1321,
1326, this court again recognized that child sexual abuse
accommodation syndrome is a recognized and accepted form of
posttraumatic stress disorder. (See also People v. Pollard
(1992), 225 Ill.App.3d 970, 168 Ill.Dec. 61, 589 N.E.2d 175.)
Thus, evidence of the syndrome is admissible under section 115-
7.2 of the Code of Criminal Procedure of 1963.

However, defendant also argues that Hoffman never testified that
the syndrome is recognized and accepted, and therefore the State
failed to establish a proper foundation for admission of the
evidence in the case at bar.  This is especially so, argues
defendant, where there remains great controversy in the field of
psychology over the validity and reliability of the syndrome.

We think that a sufficient foundation was presented in the
instant case to allow Hoffman to testify to the general charac
teristics of child sexual abuse accommodation syndrome. Hoffman
testified that it is a form of posttraumatic stress syndrome and
that the theory is accepted in the psychological community.  She
explained the components of the syndrome. She testified that the
syndrome has been documented in literature and is based on
observations of thousands and thousands of cases over a number of
years in a variety of settings all over the country. The syndrome
was first published in 1982, and there has been ongoing
literature and continued investigation and evaluation in this
field.  Defendant presented no evidence that the syndrome is not
a recognized form of posttraumatic stress syndrome.  We find,
therefore, that an adequate foundation was laid for Hoffman's
testimony.

Defendant also argues that the evidence was improperly admitted
during the State's case-in-chief rather than in its rebuttal
case. In People v. Nelson, this Court held that evidence of child
sexual abuse accommodation syndrome is admissible by the State
only in rebuttal after the victim's credibility has first been
attacked.  (203 Ill.App.3d at 1045, 149 Ill.Dec. at 166, 561
N.E.2d at 444.)  The State responds that although Hoffman did
testify as the State's last witness in its case-in-chief, it was
after the victim's credibility had been attacked by defendant
through cross-examination. In that cross-examination of the
victim and his mother, it was revealed that the victim had
recanted his accusation against defendant.  The State argues that
it need not wait until its rebuttal case to admit evidence of the
syndrome where that evidence may explain a recantation which was
revealed in cross-examination during the State's case-in-chief.
The State argues:

"The logical extension of defendant's interpretation of the
Court's language [in Nelson], would allow a defendant to suc
cessfully attack the credibility of a child victim during cross-
examination of the State's witnesses, but preclude the State from
rebutting such attacks by not eliciting testimony that the child
had recanted or delayed reporting the incident during the
defendant's portion of the case. There is no basis in Nelson for
supposing that this Court intended to impose so severe a
restraint."  State's brief at 15. In Nelson, after ruling that
evidence of child sexual abuse accommodation syndrome is
admissible, we stated:

"At this time, we choose to limit the admissibility of such
testimony to rebuttal after the victim's testimony has first been
attacked.   Under such circumstances, defendant's own actions
have necessitated the use of syndrome testimony, especially when
defense counsel emphasizes some unusual aspect of the victim's
behavior such as recantation or delayed reporting.  [Citations.]
To prohibit syndrome testimony in these instances would, in
effect, for example in the situation of recantation, allow power
ful impeachment evidence to remain unrebutted when a plausible
reason exists why the jury should not give such impeachment the
same weight as most prior inconsistent statements.  [Citation.]
At the same time, however, admission of syndrome testimony on
rebuttal, even if believed, would not be dispositive of the case,
thereby ensuring defendant a fair trial."  203 Ill.App.3d at
1045, 149 Ill. Dec. at 166, 561 N.E.2d at 444.

We note that in cases decided subsequent to Nelson, evidence of
child sexual abuse accommodation syndrome was presented in the
State's case-in-chief with no apparent objection by defendant and
no assignment of error on appeal.  (People v. Wasson (1991), 211
Ill.App.3d 264,155 Ill.Dec. 710, 569 N.E.2d 1321; People v.
Pollard (1992), 225 Ill.App.3d 970, 168 Ill.Dec. 61, 589 N.E.2d
175.) In those cases, it was pointed out that the trier of fact
is not precluded from weighing the expert witness' credibility,
nor is the trier of fact obligated to openly accept the witness'
opinion. (Was-son, 211 Ill.App.3d at 272,155 Ill.Dec. at 2"8, 569
N.E.2d at 1327; Pollard, 225 Ill. App.3d at 978, 168 Ill.Dec. at
67, 589 N.E.2d at 181.) We also note that section 115-7.2 of the
Code of Criminal Procedure of 1963, which explicitly makes expert
testimony relating to posttraumatic stress syndrome admissible,
does not by its language limit its admission only to the State's
rebuttal case.  Ill.Rev.Stat.1989, ch. 38, par. 115-7.2.

[10]  Because the law regarding admission of testimony of this
nature has now been more fully developed than at the time we
decided Nelson, we choose now to hold that evidence of child
sexual abuse accommodation syndrome is admissible in the State's
case-in-chief but only where the defendant, through cross-
examination of the State's witnesses, has first attacked the
credibility of the victim by introducing evidence of recantation,
delayed reporting, inconsistencies, or other means of impeachment
which may be explained in part by evidence of the child sexual
abuse accommodation syndrome. As the State persuasively argues,
to hold otherwise would allow the defendant to attack the
victim's credibility on  cross-examination in the State's case,
and by refraining from impeaching the victim in defendant's own
case, the defendant could preclude the State from introducing
evidence of the syndrome in rebuttal. Thus, the State would have
no opportunity to rehabilitate its witness through introduction
of evidence of the syndrome.  We further think that our holding
is consistent with our statement in Nelson that to prohibit
syndrome testimony in these instances would allow powerful
impeachment evidence to remain unrebutted when a plausible reason
exists why the jury should not give such impeachment the same
weight as most prior inconsistent statements. We do not think
this will unduly prejudice defendant for, as we explained in
Nelson, it is only the defendant's own actions which will
necessitate the use of the syndrome testimony.  The evidence will
not be admissible simply to bolster the victim's testimony unless
the victim's credibility has first been brought into question.

In the instant case, the subject of the victim's recantation was
first raised by defendant in his cross-examination of the victim
during the State's case-in-chief.  Accordingly, in the instant
case, we find no error in the admission during the State's case-
in-chief of evidence of the child sexual abuse accommodation
syndrome.

[11]  Defendant's fourth argument on appeal is that his
conviction for criminal transmission of HIV must be vacated be
cause the statute upon which it is based, section 12-16.2(a)(1)
of the Criminal Code of 1961 (Ill.Rev.Stat.1989, ch. 38, par. 12-
16.2(a)(1)), is unconstitutionally vague and therefore invalid.
Section 12-16.2 provides in pertinent part as follows:

Criminal Transmission of HIV.  (a) A person commits criminal
transmission of HIV when he or she, knowing that he or she is
infected with HIV:

(1)  engages in intimate contact with another;

     *    *    *    *

(b)  For purposes of this Section:

'HIV' means the human immunodeficiency virus or any other
identified causative agent of acquired immunodeficiency syndrome.

'Intimate contact with another' means the exposure of the body of
one person to a bodily fluid of another person in a manner that
could result in the transmission of HIV.

*    *    *    *    *

(c)  Nothing in this Section shall be construed to require that
an infection with HIV has occurred in order for a person to have
committed criminal transmission of HIV.  Ill.Rev.Stat.1989, ch.
38, par. 12-16.2.

Defendant argues that the statute is unconstitutionally vague
because the term "bodily fluid" is insufficiently defined and
that, because the use of the word "could" in the definition of
intimate contact encompasses such a broad range of conduct, it
fails to clearly indicate what behavior is prohibited. As a
result, the term "intimate contact with another" is not
adequately defined and is vague.  Defendant argues that because
the term "bodily fluid" is not defined, the jury could conclude
that saliva and tears could transmit the virus, when experts in
the field assert that these are not bodily fluids capable of
transmitting the virus. Furthermore, because the word "could"
encompasses such a broad range of conduct, a jury could conclude
that some sexual act short of penetrative oral, anal or vaginal
intercourse could transmit the virus when experts assert that
only these penetrative sexual acts could transmit the virus.
Defendant further argues that one must speculate whether biting
or spitting on another while knowingly infected with HIV
constitutes criminal transmission of HIV because the statute does
not define what bodily fluids are possible transmitters of the
virus. Defendant argues that these uncertainties in the statute
render it unconstitutionally vague in that it fails to give
adequate notice to as to what acts are prohibited and allows
arbitrary and discriminatory application.

Defendant's argument must fail because, not only does he lack
standing to raise the constitutionality of the statute as applied
to other acts and actors, the statute is not vague and
unconstitutional as applied to him. It is well settled that
vagueness challenges to statutes which do not involve first
amendment freedoms must be examined in light of the facts of the
case at hand. (People v. Jihan (1989), 127 Ill.2d 379, 385,130
Ill.Dec. 422, 425, 537 N.E.2d 751, 754.) Thus, to prevail in a
vagueness challenge to a statute that does not implicate first
amendment concerns, a party must demonstrate that the statute is
vague as applied to the conduct for which the party is being
prosecuted.  (Jihan, 127 Ill.2d at 385,130 Ill.Dec. at 425, 537
N.E.2d at 754.)  The party must show that the statute did not
provide clear notice that the party's conduct was prohibited.
(Jihan, 127 Ill.2d at 385,130 Ill.Dec. at 425, 537 N.E.2d at
754.)  The right to challenge a statute as being vague on its
face where the statute clearly applies to the conduct of the
party making the challenge does not exist unless first amendment
concerns are involved. Jihan, 127 Ill.2d at 386,130 Ill. Dec. at
425, 537 N.E.2d at 754.

[12]  In the instant case, defendant does not argue, nor could he
successfully argue, that any first amendment rights are impli
cated. Thus, defendant must demonstrate that the statute is vague
not as applied to someone else, or some act other than that which
he committed, but as applied to him and the act he committed.
Thus, the issue before us is whether the statute clearly
proscribed the conduct engaged in by defendant in this case.

A statute need only be sufficiently certain to give a person of
ordinary intelligence fair notice that his contemplated conduct
is forbidden by law. (People v. Lowe (1990), 202 Ill.App.3d 648,
653,148 Ill.Dec. 136,139, 560 N.E.2d 438, 441.)  A person should
not be subjected to a penalty for certain conduct unless the
words of the statute clearly describe the conduct prohibited.
(People v. Taylor (1990), 138 Ill.2d 204, 211,149 Ill.Dec. 297,
300, 561 N.E.2d 667, 670.)  However, a defendant may be
prosecuted under a statute without violating his right of due
process if his conduct falls squarely within the statute's
proscriptions, even though the statute may be vague as applied to
other conduct. (Taylor, 138 Ill.2d at 211, 149 Ill.Dec. at 300,
561 N.E.2d at 670.)  The fact that there may be borderline cases
wherein a degree of uncertainty exists as to the applicability of
a statute does not render the statute unconstitutional as to
conduct about which no uncertainty exists. People v. Witzkowski
(1972), 53 Ill.2d 216, 219, 290 N.E.2d 236, 239.

In the instant case, defendant placed his penis in the mouth of
the victim and ejaculated  semen.   Defendant acknowledges that
semen is a bodily fluid well known as a transmitter of HIV.  Oral
sexual intercourse is a penetrative sexual contact which is
recognized as allowing transmission of the virus.  Thus,
defendant clearly exposed the body of another to his bodily fluid
in a manner that could result in the transmission of HIV. A penal
statute need only convey sufficiently definite warning as to the
proscribed conduct when measured by common understanding and prac
tices.  (Taylor, 138 Ill.2d at 217, 149 Ill. Dec. at 303, 561
N.E.2d at 673.)  Defendant's conduct clearly fell within the pro
scription of the statute.  Section 12-16.-2(a)(1) is not
unconstitutionally vague as applied to defendant in this case,
and defendant has no standing to raise the constitutionality of
the statute as it may be applied to other individuals and other
acts.

Defendant's next argument on appeal is that the testimony of
defendant's physician, Dr. Hyde, was improperly admitted in that
the physician-patient privilege barred his testimony and no
exception to that privilege applied.  The State sought to
introduce Dr. Hyde's testimony to establish that defendant had
knowledge that he was infected with HIV, an essential element of
the offense of criminal transmission of HIV. The court allowed
Dr. Hyde to testify over defendant's objection, finding that
there was a compelling need for the testimony.  Defendant argues
that the trial court improperly allowed Dr. Hyde to testify over
defendant's assertion of the physician-patient privilege.

The physician-patient privilege is established by statute as
follows:

"No physician or surgeon shall be permitted to disclose any
information he or she may have acquired in attending any patient
in a professional character, necessary to enable him or her
professionally to serve the patient * * * *  (Ill.Rev.Stat.1989,
ch. 110, par. 8-802.)

The statute sets forth several exceptions to the privilege, among
them the following:

"(4) in all actions brought by or against the patient, his or her
personal representative, a beneficiary under a policy of
insurance, or the executor or administrator of his or her estate
wherein the patient's physical or mental condition is an issue, *
* *, (7) in actions, civil or criminal, arising from the filing
of a report in compliance with the 'Abused and Neglected Child
Reporting Act', * * * (Ill.Rev.Stat.1989, ch. 110, par. 8-802.)

Neither party argues that Dr. Hyde's testimony does not fall
within the scope of the physician-patient privilege.  At trial,
however, the State argued that exception (7) to the privilege
applies because the prosecution arose from the filing of a report
of child abuse in compliance with the Abused and Neglected Child
Reporting Act.  (Ill. Rev.Stat.1989, ch. 23, par. 2051 et seq.)
On appeal, the State argues that not only does exception (7)
apply but exception (4) also applies in that defendant's physical
condition is in issue. The State also argues on appeal that, in
any event, defendant had waived the privilege prior to trial in
that, with defendant's consent, several of his relatives,
including his mother and sister, had been present when Dr. Hyde
discussed with defendant his HIV status, his condition and his
treatment.

[131  We find it unnecessary to decide whether defendant had
waived the privilege or whether any exceptions to the privilege
apply because we find that any error in the admission of the
testimony was harmless. Dr. Hyde's testimony regarding
defendant's medical condition and treatment was essentially
cumulative to that given by defendant's mother and sister and by
the defendant himself.  Defendant's mother testified for the
State that upon returning to Marion, defendant's blood was tested
for HIV.  The mother was present in Dr. Hyde's office when Dr.
Hyde informed defendant that he was infected with HIV and
prescribed mediation for the condition.  Defendant cross-examined
the mother at length about defendant's treatment with Dr. Hyde.
One of defendant's sisters testified in the defendant's case that
defendant was treated by Dr. Hyde and that defendant had frequent
blood tests performed. The sister was present on two separate
occasions when Dr. Hyde explained to defendant that his blood
tests indicated he was positive for HIV.  She testified that
defendant had been prescribed AZT, a drug commonly prescribed for
HIV. Finally, defendant himself testified to his medical
condition and his treatment by Dr. Hyde.  Defendant gave blood
samples to be tested for HIV.  Defendant was advised that the
first blood test had been positive for HIV. Defendant was advised
that he was infected with HIV. Defendant was prescribed AZT to
fight the infection.  Defendant knew that AZT was prescribed to
people infected with HIV. Dr. Hyde never told defendant that he
was cured.  Numerous witnesses also testified to the taking of
blood samples from defendant, the testing of those samples for
HIV, and the positive results of those tests.

Dr. Hyde's testimony did not differ from that of the other
witnesses and did not add anything that was not otherwise in evi
dence. Accordingly, we find that his testimony was essentially
cumulative, and its admission, if error, was harmless and did not
deprive defendant of a fair trial.  See Gord Industrial Plastics,
Inc. v. Aubrey Manufacturing, inc. (1984), 127 Ill.App.3d 589,
592, 82 Ill.Dec. 855, 858, 469 N.E.2d 389,  392;  Stromquist  v.
Burlington Northern, Inc. (1983), 112 Ill.App.3d 37, 45, 67
Ill.Dec. 629, 635, 444 N.E.2d 1113,1119; Charles Selon &
Associates, Inc. v. Estate of Aisenberg (1981), 103 Ill.App.3d
797, 800, 59 Ill.Dec. 457, 460, 431 N.E.2d 1214, 1216.

[14]  Defendant's sixth argument on appeal is that his conviction
for criminal transmission of HIV must be vacated because it is
based on the same physical act as is his conviction for
aggravated criminal sexual assault. Defendant argues that his
conviction for criminal transmission of HIV is based upon the
defendant having placed his penis in the victim's mouth knowing
he was HIV positive, thereby exposing the victim to the virus.
That act, defendant argues, is the same act which resulted in his
conviction for aggravated criminal sexual assault.  Defendant is
wrong.  Defendant's conviction for criminal transmission of HIV
is not based on his having put his penis in the victim's mouth
but on his act of exposing the body of the victim to his own
bodily fluid, in this case either through ejaculation of semen or
emission of preejaculatory fluid containing semen into the
victim's mouth, while knowing he was infected with HIV.  Neither
ejaculation of semen nor emission of preejaculatory fluid is
required for defendant's conviction for aggravated criminal
sexual assault, but either act is an exposure to a bodily fluid,
which is required for defendant's conviction for criminal
transmission of HIV. Aggravated criminal sexual assault may be
committed without the exposure to any bodily fluid. Criminal
transmission of HIV can be committed without the commission of
sexual assault.  Accordingly, the two convictions are not based
upon the same physical act, and both convictions can stand. See
People v. King (1977), 66 Ill.2d 551, 566, 6 Ill.Dec. 891, 897-
98, 363 N.E.2d 838, 844-45.

Defendant's final argument on appeal is that the trial judge's
reliance on improper factors in sentencing led him to abuse his
discretion in imposing defendant's sentences.  We agree.
Defendant's presentence investigation report indicates that prior
to the instant offenses he had the following criminal history: a
1979 conviction for battery on a peace officer in California, for
which he was placed on probation; convictions in 1990 for two
counts of misdemeanor theft also in California, for which he was
again placed on probation; and a conviction in 1990 for speeding
and driving while license suspended or revoked in California, for
which he was sentenced to 15 days in jail. There was an outstand
ing bench warrant issued June 1, 1989, against defendant in
California regarding his failure to appear on charges of operat
ing an unregistered vehicle, driving while license revoked or
suspended, and no valid registration.  Defendant had no juvenile
record.

The presentence investigation report included defendant's
assertion that his wife, from whom he was separated, had been a
heavy intravenous drug user and that he had contracted HIV from
her.  Defendant has no children.  The report also contains
defendant's statement that he had had a girl friend prior to his
arrest but he could not remember her name or address.  Defendant
did not complete high school. Defendant had had his own business
in California which serviced fire-protection equipment; however,
the business was under investigation for operating with expired
licenses and for not completing work in compliance with
standards. The business was now closed.  After returning to
Illinois, defendant had been employed at a body shop, where he
was reported to have been a good worker.

Defendant had been convicted of aggravated criminal sexual
assault, a Class X felony carrying a possible prison sentence of
six to 30 years, and criminal transmission of HIV, a Class 2
felony carrying a possible prison sentence of three to seven
years.  No evidence was introduced in aggravation or mitigation.
Arguments were heard.

The trial judge discussed the presentence investigation report,
indicating he had reviewed and considered it. The judge then made
the following comments which we find demonstrate that he abused
his discretion in sentencing defendant as he did:

"Very next paragraph [of the presentence investigation report],
'Dempsey stated he did have a girlfriend prior to his arrest.'
Now that to me is important when you go talking about body
fluids. He had a girlfriend prior to his arrest here in
Williamson County after he had returned from California.  Went to
the doctor.  Had a test made.  He had a girlfriend.  And what did
the jury say that he did to his little brother, knowing he had
HIV virus?

You know, we have a lot of laws with respect to this HIV virus
that the legislature makes, and we have those that try to
surround information -- even if a person takes a test, the doctor
or who knows about it, unless it's in the line of duty, he should
not even reveal that he went to take the test or she went to take
the test.  So it is in a sense, this HIV virus is in a sense a
hidden disease. The general trend of the law and all the re
quirements seems to be that they try to take a person with this
HIV virus and hide him in a closet and don't tell the world about
it, but let him go on out and get his girlfriend, and she's not
allegedly supposed to know about it apparently because-unless he
tells her or somebody tells her. It's a hidden disease. What's
the public going to do about it?  What are these innocent people
who don't have HIV going to do about people roaming the streets
making dates and fooling around with little boys?  What is the
world going to do with that sort of a person?

     *    *    *

You know, what did we do with a mad dog, dog that was alleged to
be rabid, mad dog? He would probably be put in a cage, as I
understand the way they're handled, for about ten days or two
weeks to see if he acts kind of like he's got rabies to see if he
really comes through with it. In the meantime, you're sitting
there having been bitten, and you don't know what to do.  But if
he comes through and he has to be done away with because he
exhibits a slobbering or what-ever the reaction is of a rabid
dog, they kill that dog and have his head examined. Then they
start giving injections to the little boy, the little girl, man
or woman that was bitten by that dog.  So what they immediately
do is put him in confinement, this dog that's running wild. I'm
not saying you're a dog, but I'm saying-I'm thinking of a theory
of something occurring where it is so serious they confine the
animal or the life that's causing the problem until they make a
determination as to whether or not the animal is rabid, and if
so, he's-well, it gets worse and they destroy him or he dies of
his own disease.

So we've got a problem what we're going to do with you. Even if
probation were available, I'd be highly reluctant to turn you
loose on the public.  * * *

But if a little child  even got scarlet fever or the measles, the
child would probably be confined by quarantine until the child
had healed to the extent that the child could again mingle with
the public. But with a virus, you can't discriminate. The law
protects them. They can't even refuse to hire them.  I suppose
they can work in a restaurant and serve food to us, work as a
cook. If you don't hire them, even though you know they've got
the HIV virus, there might be a suit of discrimination.

I suppose there's been too many big wheels in this world who have
had this virus.  It may be sometimes called a political disease.
Be it as it may, it has the publicity of being a very serious ail
ment, and I'm not a doctor, and I don't know how serious it is,
but that's what I hear.

But, oh, now, in this report, this girlfriend you had, you said
you couldn't remember her full name, didn't know where she lived.
So no one can contact her, I guess, and tell her to make ready
for the onslaught of whatever might come, if anything does come
from this relationship, maybe all you did was hold hands.  I
don't know.

But you have a conviction by a jury after a long trial, and I'm
trying to obey some of these rules that hide the evidence, hide
the evidence, don't reveal to the public about your position.
Let everybody be innocent bystanders while you run through the
crowd at will, and wherever you find a possibility spread your
sperm or body fluids maybe in a way to cause a spread of this
horrible disease.

Why, in the olden days we had the leprosy colony, but we don't do
that today. We're more modern. We let people with the HIV just
run around and don't tell anybody they've got it. Well, maybe
that's the way the law ought to be. They say the reason for that
is that if you think you've got HIV virus, you won't go be tested
because you think everybody will know about it.  If you feel that
simple about your health, you may just die.  * * *

     *    *    *

* * * I hope that people who hear of this will think it's best if
they have the HIV virus that they start protecting the public and
not be like a mad dog out in the wilds biting anything that comes
along or stands still or falls over backwards."

[15, 16]  While sentencing judges are vested with wide discretion
so that reasoned judgments as to the penalty appropriate to the
particular circumstances of each case can be accomplished, that
discretion is not unfettered. (People v. O'Neal (1988), 125
Ill.2d 291, 297, 126 Ill.Dec. 71, 73, 531 N.E.2d 366, 368.)
Where the sentencing judge relies on improper factors, including
prejudice, speculation, and conjecture, to the exclusion of the
requisite statutory factors, the sentence should be vacated and
the cause remanded for resentencing.  (See People v. Rosa (1990),
206 Ill. App.3d 1074, 1084-85,151 Ill.Dec. 950, 957, 565 N.E.2d
221, 228; People v. Embry (1989), 179 Ill.App.3d 1059, 128
Ill.Dec. 873, 535 N.E.2d 87.) As we stated in People v. Joe
(1991), 207 Ill.App.3d 1079, 1085, 152 Ill.Dec. 924, 930, 566
N.E.2d 801, 807, consideration of an improper factor in aggra
vation clearly affects the defendant's fundamental right to
liberty, and a court of review must remand such a cause for re
sentencing, except in circumstances where the factor is an
insignificant element of the defendant's sentence.

[17]  While a sentencing judge may properly consider nonstatutory
aggravating factors in imposing sentence, the evidence considered
must be both relevant and reliable. (Joe, 207 Ill.App.3d at 1086,
152 Ill.Dec. at 930, 566 N.E.2d at 807.) In the instant case, it
appears to us that the trial judge relied on unfounded fear and
prejudice relating to HIV infection and on speculation and
conjecture.  The sentencing judge speculated that because
defendant reportedly had a girl friend prior to his arrest, he
likely engaged in activity which could infect her, without any
evidence in the record that this was so.  The judge compared HIV
sufferers with scarlet fever victims, suggesting the need for
quarantine.  He suggested, with no evidentiary support, that HIV
sufferers receive some protection under the law, because of
political considerations, that they do not deserve.  He made
comparisons of HIV sufferers to rabid dogs, mad dogs, and lepers,
dwelling on the danger of allowing defendant to "run through the
crowd at will": "wherever you find a possibility spread your
sperm or body fluids maybe in a way to cause a spread of this
horrible disease." There was absolutely no evidence in the record
that defendant had had any type of contact with any individual
other than the victim which could result in transmission of HIV.
Finally, the judge stated that he hoped the sentence imposed
would tell HIV sufferers that they should "start protecting the
public and not be like a mad dog out in the wilds biting anything
that comes along or stands still or falls over backwards."

The sentencing judge was so prejudiced by fear of the disease
that he let improper factors influence him and did not consider
the requisite statutory factors. Indeed, we are unable to
determine whether the judge gave any consideration to the
rehabilitative potential of the defendant, as required by our
constitution.  (People v. Perruguet (1977), 68 Ill.2d 149, 154,
11 Ill.Dec. 274, 276, 368 N.E.2d 882, 884.)  Clearly, these
improper factors were significant elements in the defendant's
sentences.

We do not believe that this sentencing judge made a reasoned and
dispassionate determination as to the appropriate sentences to be
imposed on defendant.  He clearly abused his discretion in
sentencing defendant.  Accordingly, we vacate defendant's
sentences and remand this cause for resentencing with directions
that the cause be assigned to a different judge on remand. See
Joe, 207 Ill.App.3d at 1087, 152 Ill.Dec. at 931, 566 N.E.2d at
808.

For the foregoing reasons defendant's convictions for aggravated
criminal sexual assault and criminal transmission of HIV are
affirmed, defendant's sentences are vacated, and this cause is
remanded for resentencing with directions that it be assigned to
a different judge on remand.

Affirmed in part, vacated in part, and remanded with directions.



CHAPMAN, P.J., and GOLDENHERSH,

J., concur.