author: JUSTICE JIGANTI JUSTICE JOHNSON,

text:
      In re MARRIAGE OF KENNETH I. GOLDMAN, Petitioner-Appellant, and ANNETTE C. GOLDMAN, Respondent-Appellee.
    First District (4th Division)
    No. 1—89—1025
    Opinion filed March 30, 1990.
    Rehearing denied May 7, 1990.

      JOHNSON, J., dissenting.
    Kenneth Ingram Goldman, pro se, and Kenneth Ditkowsky, of Ditkowsky & Contorer, both of Chicago, for appellant.
    Chaim T. Kiffel and David M. Elston, both of Kirkland & Ellis, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

On March 23, 1989, an order was entered dissolving the marriage of petitioner Kenneth I. Goldman and respondent Annette C. Goldman. The petitioner appeals from a portion of the order compelling specific performance of the parties’ antenuptial agreement that in the event the marriage was dissolved, the petitioner would obtain and deliver to the respondent a Jewish bill of divorcement known as a “get.” Under Orthodox Jewish law, a get is necessary to dissolve the marriage and permit the woman to remarry. The petitioner also appeals from that portion of the order incorporating a previously entered custody order.

The first issue presented in this appeal concerns the enforceability of the terms of a document, known as a “ketubah,” which was entered into as part of the religious marriage ceremony. Annette Goldman contends that the ketubah is a marital contract which requires the husband to obtain a get upon dissolution of the marriage. Kenneth Goldman contends that the ketubah does not constitute a marital contract; that if it is a contract, its terms are too vague to be specifically enforced; and, finally, that enforcement of the ketubah would violate his constitutional rights under the establishment and free exercise clauses of the first amendment (U.S. Const., amend. I) as well as under article I, section 3, of the Illinois Constitution (Ill. Const. 1970, art. I, §3).

The parties were married on May 27, 1979, in a Reconstructionist Jewish ceremony. Neither party was an Orthodox Jew at the time of the marriage; Annette Goldman became an Orthodox Jew during the course of the marriage. Shortly before the marriage ceremony, the parties signed a certificate of marriage called a ketubah. The ketubah is a document written in Aramaic and translated into English. The English translation contains the date and place of the ceremony and the names of the bridegroom and bride, then states as follows:

“The said Bridegroom made the following declaration to his Bride:
‘Be thou my wife according to the law of Moses and Israel. I faithfully promise that I will be a true husband unto thee; I will honor and cherish thee; I will work for thee; I will protect and support thee, and will provide all that is necessary for thy sustenance, even as it beseemeth a Jewish husband to do. I also take upon myself all further obligations for thy maintenance, as are prescribed by our religious statute.’
And the said Bride has plighted her troth unto him, in affection and in sincerity, and has thus taken upon herself the fulfillment of all the duties incumbent upon a Jewish wife.
This Covenant of Marriage was duly executed and witnessed this day according to the usage of Israel.”

The ketubah was signed immediately before the ceremony while the parties were dressed in their wedding attire. They had not consulted a lawyer about the terms of the ketubah.

In May of 1984, Kenneth Goldman petitioned for dissolution of the marriage and custody of the parties’ two children — Shoshana, born in 1980, and Daniel, born in 1982. Annette Goldman and the children were visiting Annette’s parents in New Jersey at the time the petition was filed, and Kenneth was awarded temporary custody in an ex parte proceeding. Upon Annette’s return to Chicago, she counterpetitioned for dissolution and requested custody of the children. The counterpetition was subsequently amended to include a count requesting specific performance of the ketubah, which Annette alleged constituted a premarital contract between the parties that the status of their marriage would be governed by Orthodox Jewish law. She further alleged that under Jewish law a marriage can be dissolved only upon the transfer from the husband to the wife of a document called a get. The counterpetition also stated that Annette was an Orthodox Jew and that her religion prohibited her from remarrying unless and until Kenneth obtained a get.

A trial was held on the specific performance count between November 18, 1988, and November 23, 1988. No issue was raised concerning the dissolution of the marriage. Annette Goldman testified that before she and Kenneth were married, Kenneth obtained an Orthodox get for his ex-wife, Pauline Gethner, from whom he had been civilly divorced for almost two years. When Annette questioned the need for the get, Kenneth told her that he wanted the divorce to be recognized by everyone, including the State of Israel and every faction of Judaism. He also stated that “when you get married in the Jewish faith you have to get divorced according to the Jewish faith.” Annette’s testimony concerning these statements was uncontroverted.

Annette further testified that prior to the marriage, she and Kenneth went to a Jewish bookstore to choose a ketubah. Kenneth specifically asked the clerk for an Orthodox ketubah. Annette stated that it was her understanding from conversations with Kenneth and from books and pamphlets given to her by Kenneth that the ketubah was a contract and that the words “[b]e thou my wife according to the law of Moses and Israel” meant that Orthodox Jewish law would govern the status and validity of the marriage. Annette further stated that it was her understanding from the information given to her by Kenneth that if the marriage were to be dissolved, “[t]hat we would have to have a get given in the proper way. That that would be important to the Orthodox procedure.” Annette admitted, however, that she and Kenneth never specifically discussed whether he would give her a get in the event the marriage was dissolved.

Approximately six months before the wedding, the parties met with Rabbi Rachlis, the rabbi who was to officiate at the marriage ceremony. When he learned that Kenneth had been married before, he asked whether Kenneth had given his first wife a get. Upon learning that he had, Rabbi Rachlis stated, “Good, that eliminates problems.” According to Annette, the two witnesses to the signing of the ketubah were Orthodox Jewish males, a requirement under Orthodox Jewish law.

Annette testified that she became an Orthodox Jew after her father died and that it was her understanding that Orthodox law prohibited her from remarrying unless she obtained a get from Kenneth. If she remarried, her marriage would not be recognized by her religion and any children she might have would be considered illegitimate. During the course of the custody trial in 1986, she asked Kenneth for a get. He replied that she was a liar and a cheat and that she was “going to pay” for what she had done to him by being married to him for the rest of her life. He then stated that “everything could be resolved” if Annette would agree to joint custody of the children. Barbara Fox, who at one time served as a court-appointed attorney for the children, testified that Kenneth told her that he “would not be adverse to giving [Annette] a Jewish divorce” if he got his custody terms. Kenneth did not deny making these statements to Annette or to Barbara Fox. According to Annette, Kenneth at no time stated any religious objection to obtaining a get.

Annette then presented expert testimony by two Orthodox Jewish rabbis, Rabbi Gedalia Schwartz and Rabbi Emanuel Rackman. According to the expert witnesses, Judaism is not only a religion but is also a complete body of substantive law. Jewish law contains both religious rules and secular laws, including such matters as contracts, torts, property and family law. Marriage and divorce are secular, contractual undertakings. Although a rabbi is usually present to supervise the marriage ceremony, his presence is not required. Therefore, the religious persuasion of the clergyman officiating at a wedding does not affect the validity of the marriage.

Both expert witnesses testified that the ketubah signed by the parties was a contract. The words “[b]e thou my wife according to the law of Moses and Israel” meant that the status of the marriage would be governed by Orthodox Jewish law. The experts agreed that the termination of the marriage under Orthodox law required the giving of a get. They stated that many non-Orthodox couples followed the get procedure so that the divorce would be recognized by all Jews. A woman who does not receive a get is relegated to the status of an “agunah”; as such, she is prohibited from remarrying or having sexual relations with any man. If she does remarry and has children, the children would be considered illegitimate and would be prohibited from marrying other Jews.

The experts testified that although the get procedure involves several formalities, it is secular rather than religious in nature. A rabbi is ordinarily present but is not necessary to the procedure. The husband obtaining the get need not profess any religious belief or engage in any act of worship. Essentially, a get is a written release from the marriage contract. The husband appoints a scribe to draft the 12-line document in conformance with certain prescribed formalities. The husband then signs the document in the presence of two Orthodox Jewish male witnesses and gives it to the wife, stating that she is released from the marriage in accordance with the laws of Moses and Israel. The husband may authorize the get procedure to be done by proxy. Although the witnesses stated that a get must ordinarily be voluntarily given, a certain amount of coercion would be permissible in this case because Kenneth had effectively abandoned Annette. Kenneth did not present any expert witnesses to contradict the testimony of Rabbi Schwartz and Rabbi Rackman.

Kenneth Goldman testified that he considered the ketubah to be poetry or art rather than a contract. In an evidence deposition Rabbi Rachlis, who officiated at the marriage ceremony, stated that from his perspective as a liberal Jew he viewed the ketubah in a symbolic rather than a literal sense. Kenneth testified that he could not read the Aramaic text and the English translation did not contain any reference to divorce or a get. He stated that neither he nor Annette was an Orthodox Jew at the time of the ceremony and denied discussing the terms of the ketubah or the meaning of the words “[b]e thou my wife according to the law of Moses and Israel” with Annette prior to the marriage. Kenneth then testified at great length as to his dislike for Orthodox Judaism. He stated that Orthodox Jews discriminate against women, and characterized Orthodox Jews as “antimodern” and repulsive.

Following the trial, the court stated its findings in a memorandum opinion. The opinion included findings of fact that the parties’ intent at the time they signed the ketubah was to have the marriage recognized by the Orthodox branch of Judaism and that, based on the expert testimony, “the ketubah clearly and unequivocally obligates the husband to proceed with the get procedure.” The court also found that although Kenneth had an intense dislike for Orthodox Judaism, his feelings did not rise to the level of a religious belief.

The court then entered an order dissolving the marriage and ordering Kenneth to comply with his contractual obligation to give Annette an Orthodox get, which the order defined as a get recognized by an Orthodox Beth Din (rabbinical tribunal). The order specifically provided that it was not requiring the Beth Din to grant the get and that the court would not supervise the procedure, determine who was a qualified witness or review whether the Beth Din made a correct determination under Jewish law. The order did, however, require Kenneth to truthfully answer all questions put to him and “to participate in the verbal and physical acts necessary to validate the GET.” The order then gave Kenneth the following four options for compliance:

“A. Kenneth Goldman may obtain and give Annette Goldman a GET in a manner that is recognized as valid by an Orthodox Beth Din.
B. Kenneth Goldman may appear before an Orthodox Beth Din and give them the information and authorization necessary to proceed with and validate the GET procedure.
C. Kenneth Goldman may execute the necessary documents and provide the necessary information to authorize the giving of a valid Orthodox GET by proxy as determined by an Orthodox Beth Din.
D. Kenneth Goldman may appear before the Chicago Rabbinical Council and give them the information and authorization necessary to proceed with and validate the GET procedure.”

The order of dissolution also incorporated a previously entered custody order. The facts relating to the custody order will be detailed later in connection with our discussion of the issues concerning that order.

Kenneth Goldman contends that the trial court erred in ordering him to obtain a get for three reasons. First, he maintains that the ketubah was not a contract but was intended by the parties as mere poetry or art. Second, he argues that if the ketubah was a contract, its terms were too vague to support specific performance. Third, he claims that the order violates his constitutional rights under the establishment and free exercise clauses of the Federal Constitution and article I, section 3, of the Illinois Constitution.

The question of whether the parties intended to enter into a contract is an issue to be decided by the trier of fact. (Northern Illinois Construction Co. v. Zale (1985), 136 Ill. App. 3d 822, 824, 483 N.E.2d 1013.) The determination in that regard will not be reversed unless it is contrary to the manifest weight of the evidence. Howard A. Koop & Associates v. KPK Corp. (1983), 119 Ill. App. 3d 391, 398, 457 N.E.2d 66.

Kenneth Goldman maintains that regardless of whether the ketubah, quoted earlier, contains the essential elements of a contract, it was not intended as a contract but merely as poetry or art in connection with the marriage ceremony. To support this claim, Kenneth states that the parties did not negotiate the terms or consult with a lawyer and that the document was signed shortly before the ceremony while the parties were dressed in their wedding attire. On the other hand, Annette Goldman presented testimony, which the trial court accepted as true, that she and Kenneth went to a Jewish bookstore and specifically requested an Orthodox Jewish ketubah. Annette testified that it was her understanding from talking to Kenneth and reading certain materials supplied by him that the ketubah was a contract and the words “[b]e thou my wife according to the law of Moses and Israel” meant that the status and validity of the marriage would be governed by Orthodox Jewish law. Although Kenneth denied these discussions, it was well within the authority of the trial court to determine the credibility of the witnesses and the weight to be given their testimony. Also, the ketubah on its face contains language of consideration and mutual promises. In our view, the court's determination that the parties intended the ketubah as a contract was not against the manifest weight of the evidence.

Kenneth Goldman next argues that even if the ketubah was a contract, the terms of the contract were too vague to support specific performance of the obligation to obtain a get. He maintains that the ketubah contains no reference to divorce or to the obligation to secure a get in the event the marriage was terminated.

In a bench trial, the meaning of the language used by the parties in a contract is to be determined by the trial court as an issue of fact. (Westminster I Apartments v. Barnard (1987), 163 Ill. App. 3d 36, 37, 516 N.E.2d 476.) When the language of the contract leaves the intent of the parties in doubt, extrinsic evidence is admissible to resolve the conflict. (Chicago Principals Association v. Board of Education (1980), 84 Ill. App. 3d 1095, 1099, 406 N.E.2d 82.) In resolving the conflict, the court will use accepted methods of contract interpretation, including the use of expert testimony, to ascertain the intent of the parties with respect to the contract terms. Howard A. Koop & Associates v. KPK Corp. (1983), 119 Ill. App. 3d 391, 398, 457 N.E.2d 66.

As we have stated, the trial court properly found that the parties intended the ketubah to be a contract that the status and validity of their marriage would be governed by Orthodox Jewish law. The uncontroverted expert testimony presented at trial established that Orthodox Jewish law requires the husband to obtain and deliver to his wife an Orthodox get upon dissolution of the marriage. Rabbi Schwartz testified that although the giving of a get is ordinarily a voluntary act on the part of the husband, a certain degree of compulsion is acceptable under the circumstances presented here, where Kenneth abandoned Annette and refused to cohabit with her and support her according to the terms of the marriage contract. Kenneth Goldman presented no expert testimony to the contrary. Before ordering specific performance of a contract, a court must find that its terms are sufficiently certain and definite that the court can require the specific thing contracted for to be done. (Kalkounos v. Four K’s, Inc. (1981), 94 Ill. App. 3d 1011, 1013, 419 N.E.2d 503.) We believe that the court’s order of specific performance was justified by the evidence before it.

Finally, Kenneth Goldman claims that enforcement of the ketubah would violate his constitutional rights under the Federal and State Constitutions. Specifically, Kenneth relies upon the establishment and free exercise clauses of the first amendment and upon article I, section 3, of the Illinois Constitution.

In Lynch v. Donnelly (1984), 465 U.S. 668, 79 L. Ed. 2d 604, 104 S. Ct. 1355, a case involving the issue of whether a city’s inclusion of a Nativity scene in its annual Christmas display violated the establishment clause, the Court stated:

“Rather than mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith — as an absolutist approach would dictate — the Court has scrutinized challenged legislation or official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so.” (Lynch, 465 U.S. at 678, 79 L. Ed. 2d at 613, 104 S. Ct. at 1361-62.)

Although it disclaimed a “fixed, per se rule” in conducting analyses under the establishment clause, the Court stated that it “often found it useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion.” (Lynch, 465 U.S. at 679, 79 L. Ed. 2d at 613, 104 S. Ct. at 1362, citing Lemon v. Kurtzman (1971), 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 755, 91 S. Ct. 2105, 2111.) Applying the analysis used in Lemon v. Kurtzman, the Court held that the city’s action in displaying the Nativity scene did not violate the establishment clause.

Using the analysis employed in Lynch v. Donnelly and Lemon v. Kurtzman, we conclude that the government conduct in question here, i.e., the trial court order, does not violate the establishment clause. First, the order has the secular purpose of enforcing a contract between the parties. The right to enter into contracts is recognized by both the Federal and State Constitutions. (U.S. Const., art. I, §10; Ill. Const. 1970, art. I, §16.) Also, the court order furthers two secular purposes set forth in the Illinois Marriage and Dissolution of Marriage Act: “[To] promote the amicable settlement of disputes that have arisen between parties to a marriage; [and to] mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.” (Ill. Rev. Stat. 1987, ch. 40, pars. 102(3), 102(4).) The evidence at trial established that under the Orthodox Jewish law, which the parties agreed would govern the status of their marriage, the marriage could be dissolved only by the securing of an Orthodox get. Without the get, Annette was prohibited by her religious beliefs from remarrying. It would have been detrimental to the parties and their children to leave the get issue unresolved.

Second, it is our opinion that the primary effect of the court order was to further the secular purposes stated above and not to advance or inhibit religion. Although the order required Kenneth’s participation in an Orthodox Jewish practice, there was ample expert testimony that Judaism contains both secular and religious laws and that the get procedure was secular in nature. To comply with the court order, Kenneth need not engage in any act of worship or profess any religious belief. According to the expert witnesses, the acquisition of a get is a secular act which severs the marriage contract. To the extent that the court order advances Orthodox Judaism by requiring an Orthodox get, it is an incidental effect of the enforcement of the parties’ contract that Orthodox Jewish law govern the status of their marriage.

Third, we believe that the court order avoids an excessive entanglement with religion. In resolving disputes involving religion, a court may apply objective, well-established principles of secular law, or “neutral principles of law,” which do not entail a consideration of doctrinal matters. (Jones v. Wolf (1979), 443 U.S. 595, 602-03, 61 L. Ed. 2d 775, 784, 99 S. Ct. 3020, 3025.) Here, the trial court merely applied well-established principles of contract law to enforce the agreement made by the parties. The terms of the order were carefully limited to avoid interference with religious doctrine. Our determination that enforcement of the obligation to obtain a get does not violate the establishment clause is in accord with decisions of other courts which have considered the issue. See Avitzur v. Avitzur (1983), 58 N.Y.2d 108, 446 N.E.2d 136; Burns v. Burns (1987), 223 N.J. Super. 219, 538 A.2d 438; Minkin v. Minkin (1981), 180 N.J. Super. 260, 434 A.2d 665.

Kenneth Goldman also contends that the court order violates the free exercise clause. Neither in the trial court nor in his brief on appeal has Kenneth clearly articulated in what manner the court order requiring him to obtain a get prevented the free exercise of his religion. Kenneth testified that he was a liberal Jew and that he abhorred the practices of Orthodox Jews, whom he characterized as discriminatory, repulsive and “antimodern.” In its findings of fact, the trial court stated that although Kenneth expressed distaste for many practices of Orthodox Jews, he at no time attacked their religious beliefs. The court accordingly found that Kenneth’s dislike for Orthodox Judaism did not rise to the level of religious belief. Only religious as opposed to personal or philosophical beliefs are protected by the free exercise clause. (Wisconsin v. Yoder (1972), 406 U.S. 205, 215-16, 32 L. Ed. 2d 15, 25, 92 S. Ct. 1526, 1533.) The court’s finding in this regard is supported by the fact that Kenneth gave his first wife a get and by testimony that Kenneth was withholding the get as a bargaining tool in the custody dispute. Furthermore, the court order here requires Kenneth to do nothing more than what he promised to do when he signed the ketubah. Expert testimony established that the get procedure was secular in nature and did not require Kenneth to engage in any act of worship or to express any religious belief. Under these circumstances, we find Kenneth’s argument involving the free exercise clause to be without merit.

Kenneth then maintains that the order violates article I, section 3, of the Illinois Constitution, which provides:

“No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship.” (Ill. Const. 1970, art. I, §3.)

Kenneth has failed to cite any cases interpreting this provision and has not suggested that it provides greater or different protection than that afforded by the first amendment of the Federal Constitution. The Illinois Supreme Court has stated that provisions of the Illinois Constitution which are similar to provisions of the Federal Constitution will be construed as providing similar protection unless there is some indication that the drafters intended otherwise. (People v. Porter (1988), 122 Ill. 2d 64, 77, 521 N.E.2d 1158.) Because Kenneth has failed to provide any authority that Article I, section 3, was intended to provide protection different from that afforded by the establishment and free exercise clauses of the first amendment, we must reject this challenge to the trial court’s order.

Kenneth Goldman next contends that the trial court erred in incorporating a previously entered custody order into its judgment of dissolution of marriage. Kenneth maintains that the previous order, entered on May 19, 1986, was a temporary custody order and that he was entitled to a trial on custody pursuant to the best interest of the child standard set forth in section 602 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 602) before a final custody order was issued. Annette Goldman contends that the May 19, 1986, order was a final custody order which could be modified only upon clear and convincing evidence of changed circumstances as set forth in section 610 of the Act. Ill. Rev. Stat. 1987, ch. 40, par. 610.

In February of 1986, Kenneth filed a motion requesting an immediate hearing on the issue of custody. Trial of the custody issue began on May 12, 1986, before Judge Baner and lasted four days. Eleven witnesses, including expert witnesses, testified. On May 19, 1986, the court entered a nine-page order covering all aspects of the children’s custody. The order stated that it was “entered as a temporary order which shall, in the absence of any contrary order entered hereafter, become a permanent custody order upon the entry of a Judgment of Dissolution in this cause.” The court explained that it did not label the custody order final prior to the judgment of dissolution because of the possibility that the marriage would ultimately not be dissolved.

A custody order is temporary or final according to its substance rather than its form. (Levy v. Skilling (1985), 136 Ill. App. 3d 727, 729, 483 N.E.2d 917; In re Marriage of Kondos (1982), 109 Ill. App. 3d 615, 618, 440 N.E.2d 1046.) In Kondos, the court held that an order entered after a full testimonial hearing on all aspects of custody was a final order despite the trial court’s characterization of the order as temporary.

Kenneth’s main argument is that because the order was not final for purposes of appeal (see In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137), it was merely a temporary custody decision governed by the standards of sections 602 and 603 of the Act. This argument has been previously considered and rejected. (In re Marriage of Mitchell (1981), 103 Ill. App. 3d 242, 246, 430 N.E.2d 716; Carroll v. Carroll (1978), 64 Ill. App. 3d 925, 382 N.E.2d 7.) It is clear from both the substance of the May 19, 1986, order and the comments of Judge Baner that the order was a final custody decision which could be modified only pursuant to the stricter standards set forth in section 610 of the Act.

Kenneth further argues that because certain portions of the order, such as the requirements of enrolling the children in a particular day-care center and using a neutral party to assist in transfers of the children, were either impossible to meet or were ignored by the parties, the order was “stale” and constituted a “nullity.” No authority is cited in support of the argument that situations which were not foreseen by the court and which the parties were able to resolve served to render the custody order a nullity. We find the argument unpersuasive.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McMORROW, P.J., concurs.

JUSTICE JOHNSON,

dissenting:

I respectfully disagree with the majority. The true issue in this case is whether a civil court has the authority to compel a party to perform terms of a “ketubah,” i.e., an antenuptial agreement used by Orthodox Jews, which require interpretation of religious doctrines and religious worship. Petitioner argues that the trial court’s order compelling him to perform the terms of the ketubah violates his constitutional rights under the first amendment (U.S. Const., amend. I) and under section 3 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §3). Petitioner also argues that the terms of the ketubah were too vague to support the specific performance of obtaining a “get,” i.e., a Jewish bill of divorcement.

After the trial in this matter, the judge ordered specific performance of the ketubah, which included the following provision: “Be thou my wife according to the law of Moses and Israel.” Expert testimony given by two Orthodox Jewish rabbis and accepted by the trial court established that the provision “meant that [the] status of the marriage would be governed by Orthodox Jewish law.” Orthodox law requires the ex-husband to give a “get” to his former wife in order to have the divorce between the parties recognized by all Jewish people. Respondent testified that she believed that Orthodox law requires a get if a divorced woman desires to remarry and have that marriage recognized by the Jewish religion. Otherwise, the church refuses to recognize the remarriage as valid and views any issue from the remarriage as illegitimate. Petitioner testified that he did not practice Orthodox Judaism and that he found the beliefs and practices to be “antimodern” and repulsive.

It is a long-standing rule in Illinois that the civil court will not interfere in questions involving religious dogmas unless they have consequences upon civil or property rights. (Chase v. Cheney (1871), 58 Ill. 509.) In Chase our supreme court declined to decide the issue of whether a Protestant Episcopal clergyman had breached his employment contract by refusing to recite language prescribed by the religious canons in the ministration of an infant baptism, a church ritual. The court reasoned that the clergyman was a voluntary member to the church association to which he belonged and that he voluntarily adhered to the rules, laws, and canons of the church. No property right had vested under the employment contract so as to authorize the civil court to become involved in a matter which necessarily required the interpretation of religious doctrines and canons of the church.

Religious worship includes performing external acts and observing all ordinances and ceremonies practiced by the religious association to which one belongs. The free exercise and enjoyment of religious worship, or lack thereof, is protected by the constitution. (Chase, 58 Ill. at 533-34.) Our “constitution intended to guarantee, from all interference by the State, not only each man’s religious faith, but his membership in the church, and the rites and discipline which might be adopted.” (Chase, 58 Ill. at 537.) There are two exceptions to this uncontrolled liberty, and neither applies here. Any order of the court which requires extensive investigation and evaluation of religious doctrines and tenets is prohibited by the first amendment. Baumgartner v. First Church of Christ, Scientist (1986), 141 Ill. App. 3d 898, 906.

Here, determination of whether a civil court can compel specific performance of a form of religious worship does not involve consequences upon petitioner’s property rights, nor was there any effect upon petitioner’s civil rights before the trial court’s order of specific performance. Furthermore, the trial court's construction of the provision, “Be thou my wife according to the law of Moses and Israel,” required the court to partake in evaluation, investigation and interpretation of religious dogma. I do not suggest that the trial court was without authority to make a ruling on the contract; rather, that the court must not compel petitioner to participate in any performance of a provision within the contract which necessarily required interpretation of a religious doctrine and his involvement in an act of religious worship.

The majority reports that the trial court “found that although Kenneth had an intense dislike for Orthodox Judaism, his feelings did not rise to the level of a religious belief.” (196 Ill. App. 3d at 791.) The inference here is that since petitioner’s dislike for Orthodox Judaism did not qualify as a religious belief, his beliefs will not be protected under the Federal or State Constitutions and, therefore, he can be compelled to participate in acts which constitute religious worship. I agree that petitioner’s dislike of Orthodox Judaism does not qualify as a religious belief; nevertheless, our constitution protects his right to freely choose whether he will participate in acts of religious worship. An individual’s participation, even by proxy, in a religious ritual is a form of religious worship. The civil court has no right to dictate one’s religion or the form in which one practices the religion of his choice. Our constitutions allow us to make these choices voluntarily. We must remember that one is free to seek such membership and to accept or abandon all of its rules, laws and canons at his will. Freedom of religious worship cannot be maintained if the civil courts attempt to construe and enforce ecclesiastical laws and doctrines and compel voluntary members to comply with them. This is what the majority attempts to to do here. The trial court’s order compelling petitioner to engage in the observance of the ordinances and ceremonies of the Orthodox Jewish religion abrogates the very essence of freedom of choice concerning matters of religious worship.

Furthermore, the civil court is limited to dissolving the marriage between the parties in accordance with the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1983, ch. 40, par. 101 et seq.) There is no reference in that Act to a requirement of a “get” for a valid dissolution of marriage under the civil law. Accordingly, we are prohibited from compelling one to follow religious tenets to fulfill ritualistic requirements of the church. Again, we must leave such a decision to the discretion of the individual.

Additionally, I do not believe that the terms of the ketubah were so definite and certain as to allow the court to require the specific thing contracted for to be performed. The standard for enforcing specific performance of a contract prohibits the court from making a contract for the parties and enforcing it. (Kalkounos v. Four K’s, Inc. (1981), 94 Ill. App. 3d 1011, 1013.) Here, the trial court’s order, which expressed four specific options for compliance with the ketubah, cannot be distinguished from the court making a contract for the parties. The trial court’s order, which expresses the four options necessary for petitioner’s compliance, would not be necessary had it, indeed, found that the terms of the ketubah were sufficiently certain and definite so as to determine what was specifically contracted for. The expression of the precise options available for compliance with the ketubah should have been left to the parties to determine and include in their agreement. Even if this were the case, this court would be precluded from compelling specific performance of religious rituals in the event of a dispute between the parties concerning the meaning of a contract provision based upon a religious tenet.

I would reverse the judgment of the trial court.

      Briefly, the establishment clause bars the State from placing its official support behind a religion, while the free exercise clause bars the State from interfering with the religious practices of its citizens. The Illinois Constitution provides in part that “[n]o person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship.” Ill. Const. 1970, art. I, §3.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD FRANKLIN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—3608
    Opinion filed April 4, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Callie Baird and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Jane E. Loeb, and Michael J. Drake, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Defendant Leonard Franklin was charged with two counts of murder and one count of armed violence for the killing of George Smith. Following a bench trial, defendant was convicted of voluntary manslaughter and was sentenced to an eight-year prison term. On appeal he contends: (1) the trial court erred in barring testimony concerning a seven-year-old incident in which defendant was stabbed, where that incident was probative of defendant’s state of mind at the time of the killing of George Smith; (2) the State failed to prove beyond a reasonable doubt that defendant was not acting in self-defense; and (3) defendant’s eight-year prison term was an abuse of discretion.

We affirm.

It was undisputed at trial that, during an argument, defendant stabbed George Smith with a knife, causing wounds which resulted in' Smith’s death two weeks later. Defendant asserted that he had acted in self-defense. Defendant’s wife, testifying for the State, stated that she lived at 5959 Ohio in Chicago with defendant and his mother, Mary Brown. George Smith would come to the house to visit defendant’s mother and to work on cars in the garage. On a number of such occasions defendant had complained about the fact that Smith parked his truck in such a manner as to block defendant’s access to the garbage cans. On May 22, 1987, at about 9:45 a.m. Mary Brown saw defendant and Smith arguing in her living room. Defendant was telling Smith that he had previously asked him to move the van so he could get the garbage out. Smith told defendant that he had told him not to bother his van. He also told him, twice, that if he did not stay away from the van Smith would “get” him. This conversation ended after 10 minutes, when defendant went and sat on the back porch. Smith then also walked to the back of the house. Mrs. Franklin walked out and saw Smith talking to defendant with his finger pointed at defendant’s face. Smith told defendant several times that he should not touch anything in the garage or Smith would get him. Defendant pushed Smith’s hand away from his face, and the two men began hitting each other. Mrs. Franklin ran into the house for help and then came back out to find the two men rolling on the ground, still fighting. She returned to the house and again came out, this time hearing Smith saying he had been stabbed. Smith was lying on the ground, and defendant was standing a few feet away. Defendant obtained the keys to their car from Mrs. Franklin and drove off.

Mrs. Franklin never saw a weapon in either man’s hand. However, she did testify that the evening before, defendant had been cleaning fish with a butcher knife on the back porch. Defendant’s uncle, Willie Brown, also a State witness, testified that he came outside after the stabbing and saw defendant with a knife in his hand. He saw no weapon on or near Smith.

Police testimony established that defendant drove to a police station and told the desk sergeant he thought he had just killed somebody by stabbing them. He then gave the police the address. George Smith told police at the scene that defendant had stabbed him after an argument. It was stipulated that Smith died on June 6, 1987, and his death was caused by a stab wound to the abdomen.

Defendant testified that on the morning in question he saw Smith outside the house and asked him to move the truck so he could take out the garbage. Because the truck blocked his path, defendant had left four or five bags of garbage on top of the truck. Smith told him that the next time he put garbage on the truck Smith would make him remove it. He also said if defendant did it again he would do “something” to him. Inside the house, Smith again encountered defendant and began saying something to him. When defendant went outside, Smith followed him and told him to take the garbage off the truck. Instead, defendant retrieved the bucket and knife he had used to clean the fish the night before and washed off the knife on the back porch. The truck had now been moved, so he threw out the fish entrails in the garbage can in back. At Smith’s request, he brought a broom to Smith in the garage. As defendant walked away, Smith began cursing him, but defendant testified he was not interested in what Smith was saying.

Defendant went to the back porch and sat down on the steps one foot away from the knife he had cleaned. Smith approached, swearing and saying he would “mess up” defendant and that he would “do something” to him. Smith reached his hand out toward defendant, and defendant deflected it, losing his balance in the process. Defendant then picked up the knife and stabbed Smith once. He testified that he did so because he was afraid Smith was going to hurt him. Smith grabbed him but he pushed himself free. When Smith began walking toward the garage, defendant thought Smith had something he would hurt him with so he grabbed Smith and they fell to the ground. When he saw that Smith had no weapon, defendant got the car keys from his wife and drove to the police station, where he reported the stabbing. Defendant admitted that in the statement he gave to the police he did not say that Smith had swung at him before the stabbing.

According to defendant he had seen Smith in the garage with a .38 caliber revolver one year before this incident. However, when asked if he feared Smith had a weapon when Smith approached him, defendant responded: “I feared he might have had something. I don’t know what it might have been.” He stated that Smith had been in the garage, where there were hammers and pipes and, although he saw nothing in his hand, this did not mean he could not have had something in his back pocket. Defendant also testified that seven years earlier he had been stabbed. The trial court sustained a State objection to any further testimony concerning this prior incident.

Based on all of this evidence, the trial judge found that defendant may have believed his actions were justified but that belief was unreasonable. He therefore found defendant guilty of the lesser included offense of voluntary manslaughter and subsequently sentenced defendant to an eight-year prison term for this offense.

I

Defendant contends that the trial court erred in barring defendant’s testimony concerning the details of a stabbing that had occurred seven years prior to this incident. In an offer of proof, defense counsel stated:

“[Defendant] would say that in 1980 an individual approached him, spoke to him, stabbed him about the body. He still bears the scars from that woman. He was stabbed in several places, and prior to being stabbed and even as he was being stabbed, he never saw the knife during that dispute.”

Defendant asserts that this testimony would have been probative of his state of mind at the time of his encounter with George Smith and therefore it was reversible error to exclude it. Defendant relies upon the cases of People v. Williams (1977), 45 Ill. App. 3d 338, 359 N.E.2d 736, and People v. Suerth (1981), 97 Ill. App. 3d 1005, 423 N.E.2d 1185. However, we do not find those cases dispositive of the issue before us. In Williams the defendant had encountered four or five men who demanded that he buy them wine at a store several blocks south. Defendant bought the wine and returned to the men, who then robbed him at gunpoint and told him to leave. As he left, one of the men told him to return. Defendant then fired at them, killing one man. The trial court barred defendant from answering questions about whether he was forced to go to the store, and why he did not keep walking south after going to the store, stating that “there is no way that defendant could.show what is in his mind.” (Williams, 45 Ill. App. 3d at 342.) A subsequent offer of proof indicated defendant would have testified he returned to the men because he was afraid they would pursue him and hurt him in the same manner that another group had two days before this incident. He also would have testified that he had previously been robbed or assaulted over a dozen times and seriously wounded by knife or gunshot three or four times. In finding defendant guilty of voluntary manslaughter, and rejecting defendant’s claim of self-defense, the trial court specifically relied on the fact that defendant chose to return to the group of men. Based on all of these facts, the reviewing court held the trial court committed reversible error in barring evidence of defendant’s state of mind.

In Suerth defendant was convicted of involuntary manslaughter after testifying that he heard noises in the hallway of his building at 5 a.m., took a gun to investigate, saw two men he could not recognize in the vestibule, and accidentally shot one of the men when they made a sudden move. The reviewing court found it was reversible error to bar defendant from testifying, on the issue of his state of mind and the reasonableness of his actions, that in the two years preceding this shooting there had been frequent break-ins, burglaries, and arsons in his building and in particular in the vestibule where this shooting took place.

We do not find that either of these cases holds that a trial judge is bound to admit evidence of prior incidents, no matter how unrelated or remote in time they are, involving a defendant in a murder case where that defendant is attempting to support the reasonableness of his actions. The Williams court correctly found that a trial court erred in holding that a defendant pleading self-defense could not testify concerning his state of mind. The reviewing court was not required to identify with particularity the aspects of defendant’s offer of proof that it would have permitted. Clearly some of that proposed testimony concerned matters that were very close in time and relevant to the incident in question. The defendant would have testified that he had been attacked by another group only two days earlier. Similarly, the excluded evidence in Suerth concerned burglaries and other offenses committed in the very same vestibule where the shooting in question took place, and occurring within two years prior to that shooting.

In this cause the trial judge, unlike the trial judge in Williams, did permit testimony concerning past events affecting defendant’s state of mind at the time of the stabbing, including testimony that he had previously seen the victim with a gun and testimony that he had previously been the victim of a stabbing. The trial judge merely exercised his discretion in excluding the details of that stabbing, which had occurred seven years earlier and which was not connected in any manner to the victim of the stabbing at issue. In People v. Wood (1984), 129 Ill. App. 3d 29, 471 N.E.2d 1060, the defendant fought with two men and killed one of them with a knife. He was permitted to testify, in support of his claim of self-defense, that he had been beaten at an earlier time by two men, but he was not permitted to give any further details. The beating occurred five years earlier and involved two men not involved in the incident at issue. On appeal the reviewing court held this to be a proper exercise of the court’s discretion because the details of the prior incident were irrelevant. We find that in this cause the trial court also properly exercised its discretion to allow testimony of the fact of the prior stabbing but to bar any details concerning that unrelated occurrence.

II

Defendant next contends that the State failed to prove beyond a reasonable doubt that he did not act in self-defense when he stabbed George Smith.

Illinois law provides that a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm. (Ill. Rev. Stat. 1987, ch. 38, par. 7—1.) Under the statutory scheme applicable at the time of trial, one who killed another in the unreasonable belief that he was justified under these principles of self-defense would be guilty of voluntary manslaughter. (Ill. Rev. Stat. 1985, ch. 38, par. 9—2(b).) Furthermore, once a defendant introduced some evidence of self-defense, the State bore the burden of proving beyond a reasonable doubt that the use of deadly force was not justified. (People v. Berry (1988), 175 Ill. App. 3d 420, 529 N.E.2d 1001.) The question of the reasonableness of a defendant’s belief that deadly force was required is a question of fact, and the trial court’s resolution of that issue, as the finder of fact, will be reversed on appeal only if so unsatisfactory or improbable as to raise a reasonable doubt of defendant’s guilt. People v. Florey (1987), 153 Ill. App. 3d 530, 505 N.E.2d 1096.

In this cause, the defendant testified that when he stabbed George Smith he was afraid that Smith might harm him. He also testified that he had seen Smith with a gun a year earlier and that he himself had been stabbed in the past. But defendant saw no gun or knife on Smith, nor did he even testify that he believed Smith had such a weapon. He testified only that he believed Smith might have “something,” but he could not specify what that something could have been. Under these circumstances, we believe the trial court was justified in finding that although defendant may have believed his actions were justified under the law, that belief was unreasonable.

III

We find no merit to defendant’s contention that his sentence was an abuse of discretion. At the sentencing hearing defendant introduced evidence of his support for his family, his successful battle with a drinking problem, the availability of employment should he obtain probation, and his prior military service. But there was also evidence before the trial court indicating that defendant had a history of resorting to violence when angered. In 1980 he had pleaded guilty to battery, receiving supervision, after having struck a bus driver in the face after quarreling with him. His wife testified that on at least three occasions he had struck her. The last incident, occurring in 1985, had left her with bruises and abrasions. Although she testified that these incidents occurred when defendant still had a drinking problem, these were still matters which the trial court could properly take into consideration.

The court stated that it had considered the presentence investigation report and the testimony presented. The court found that given defendant’s “track of violence,” a sentence of probation would deprecate the seriousness of his offense. The eight-year sentence he received was well within the statutory range of 4 to 15 years for such an offense. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(4).) We do not find it to be an abuse of discretion and therefore will not disturb it on appeal. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

The judgment of the trial court is affirmed.

Affirmed.

CERDA, P.J., and FREEMAN, J., concur.


author: JUSTICE WHITE JUSTICE RIZZI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT DAILEY, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0351
    Opinion filed April 4, 1990.

      RIZZI, J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Paula Carstensen, and Thomas O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Defendant Herbert Dailey was convicted of child pornography in a bench trial, receiving an eight-year prison term for that offense. On appeal he contends: (1) his guilt was not established beyond a reasonable doubt; (2) the information charging him with child pornography was so defective as to require reversal; and (3) his sentence was excessive.

We reverse, finding the evidence insufficient to establish defendant’s guilt.

The State presented two witnesses at trial: Shari T., who was the alleged victim of this offense, and Officer James Moore, to whom Shari reported the offense, two years after its occurrence. Shari was 16 years old at the time of trial. She testified that in the spring of 1985, she began baby-sitting for the defendant and his wife at their home in Robbins. She did this while defendant’s wife worked, which was about three times a week, and she continued to do so for V-k years. She had been baby-sitting for them for “a couple of months” when, on a day in March or April of that year (she could not remember the exact date), the alleged events occurred.

Shari testified that the incident began when defendant touched her on her legs. (Shari admitted at trial that she had never previously told anyone that defendant touched her that day.) When she moved to the other side of the room, he came over there. She then went outside to get the baby, who was at the neighbor’s house, but defendant said to leave the baby over there. When he asked if she wanted to take some pictures, she said yes and suggested they take them outside. He told her he meant nude pictures, and she told him she did not want to do this. He then said if she did not comply he would hurt her or do something to her. She became frightened and went upstairs to his bedroom.

According to Shari, defendant joined her in the bedroom. As she sat on the bed he asked her to take her clothes off. She first refused, but when he threatened her with a gun, she disrobed. Shari testified that she lay on the bed for several minutes while defendant watched her. While holding the gun, he told her to smile and she complied. He then took a Polaroid camera from a drawer and began photographing her, telling her how to pose as he did so. While she was sitting in a chair he grabbed her leg and placed it on the end of the chair. Shari testified that defendant took 11 photographs of her that day. However, when asked where they were taken she responded: “One was in the chair, and one was on the bed, and one was downstairs.”

Although Shari had placed these events in March or April, she also said that the downstairs photograph was taken by a Christmas tree in the living room. When they went downstairs, she did not see the gun, which defendant had put down when he began taking the photographs. At the time of the incident defendant walked with a severe limp. However, she never tried to run from him or escape from the house. When defendant had finished taking the pictures, she asked what he would do with them but he did not respond. She then got dressed and went home.

Shari’s mother and sister were home when she arrived, but she did not tell them what had happened. Shari testified that she ran crying into the house and was asked by her mother what had happened but she did not respond. At trial she explained that she thought her mother would think she had done this on her own.

Several days later Shari was again baby-sitting for defendant when he showed her the photographs for the first time. When she asked what he would do with them, he said he would bury them in the ground. At an unspecified later date, she saw two photographs in the possession of two of his friends, Bernard Campbell and Gary McGee. For two years she did not tell the police what had occurred. Then in April 1987, while at McGee’s house, she found one of the photographs under a couch after being told of its location by McGee’s niece. She kept the photograph for several days and then gave it to Nathaniel Rollins, who accompanied her to the police station and gave it to Officer James Moore. She identified a prosecution exhibit as the photograph she had found.

Shari admitted that prior to trial, in July, she had told defense counsel that she would testify to a “story,” that two boys who raped her took the pictures. Her explanation for this, under examination by the prosecutor, was as follows:

“Because they told me — because, really because, my brother— when I first got ready to come up here to see him, he was screaming, and hollering, and' stuff. And they had me confused. And he said, he don’t want me to see him like that.
Q. Who told you that?
A. His lawyer.
Q. Told you he didn’t want to see who like that?
A. He didn’t want to see [defendant] like that.
So I told him that I was going to make up a story, and say that the two boys that supposedly raped me, a long time ago did it.”

Shari testified that it actually was defendant who had taken the photographs. She also testified that the two boys who previously raped her were not prosecuted, because when her mother reported the crime to the police they could not find the two boys.

Shari stated that she had told defendant she was going to tell his wife about taking the pictures, but he indicated he did not care. Indeed, he told her he was going to show one picture to the chief of police. However, she also testified that he told her if she told anybody, or went to the police, he would do something to her.

The only other prosecution witness was James Moore, who was an investigator with the Robbins police department as well as a counselor for the Berman Youth Committee. He testified that Shari and Nathaniel Rollins brought him the photograph on April 27, 1987. He had known Shari for three years because she and her family were in counseling with him. Shari told him “this guy” told her to take some pictures. She had waited over two years to report this because the man threatened to hurt her if she said anything. She also told Officer Moore she had obtained the photograph from Gary McGee’s house, but Moore, who said he investigated the crime, could not recall if he talked to McGee during the investigation. He never recovered a weapon or the camera, nor did he find any other photographs. Moore was aware that there had been an altercation between defendant and Nathaniel Rollins, but he did not know when this had occurred.

The trial court found Shari to be very credible “despite some small collateral impeachment” which the court said was unimportant. The court convicted defendant of child pornography, but acquitted him on a charge of armed violence because the evidence indicated he had placed the gun on the dresser before taking the photographs. Following a sentencing hearing, defendant was sentenced to eight years in prison.

I

Defendant argues that the evidence presented against him was insufficient to establish his guilt beyond a reasonable doubt. Specifically, he contends that the photograph introduced into evidence was not child pornography as defined by statute and that in any event the testimony of the State’s complaining witness was so lacking in credibility as to require reversal. We find that both grounds, independently, require reversal.

Defendant was charged with having taken a photograph of Shari, whom he reasonably should have known to be under 18, in a pose involving a lewd exhibition of her genitals. The statute in question provides in pertinent part:

“(a) A person commits the offense of child pornography who:
(1) *** photographs *** any child whom he knows or reasonably should know to be under the age of 18 where such child is:
* * *
(vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the genitals of the child or other person.” (Ill. Rev. Stat. 1987, ch. 38, par. 11—20.1(a)(l)(vii).)

By its plain terms, the statute requires that for a photograph to be considered child pornography under subsection (vii), the child’s genitals must be exhibited in the photograph. Webster’s Third New International Dictionary defines “genitals” or “genitalia” as “the organs of the reproductive system; [especially] the external genital organs.” (Webster’s Third New International Dictionary 946 (1986).) The photograph at issue here contains no such exhibition. It depicts a nude, sexually mature girl, lying on her side on a bed, smiling at the camera, with her legs slightly apart. Her breasts and pubic hair are clearly visible but her genitals cannot be seen.

In its brief the State focuses on whether the photograph is lewd. But if no genitals are visible in the photograph, its lewdness becomes irrelevant. Thus, the State relies to a great extent on People v. Hebel (1988), 174 Ill. App. 3d 1, 527 N.E.2d 1367. But in Hebei, the court was concerned with a group of photographs which indisputably included views of a young girl’s genitals. These photographs had been seized from the defendant and provided the basis for a search warrant. In determining whether the photographs had provided probable cause to believe defendant was engaged in child pornography, the court noted that genitalia were visible in a number of the photographs, and then discussed at length whether the photographs were lewd.

The State also apparently suggests that Hebei supports a broader definition of what constitutes a lewd exhibition of genitals. The State notes that the Hebei court looked for guidance to Federal cases construing a Federal statute on child pornography. In particular, Hebei cited to standards for determining lewdness approved in United States v. Rubio (5th Cir. 1987), 834 F.2d 442, 448, which included “whether the focal point of the visual depiction is of the child’s genitalia or pubic area.” But the Rubio court was construing a Federal statute which was concerned, in pertinent part, with “lascivious exhibition of the genitals or pubic area” of any person. (Emphasis added.) (18 U.S.C. §2255 (1987).) For this reason the State cannot rely on Hebei for the proposition that a photograph depicting pubic hair but not the genitals would suffice under the Illinois statute. In this regard it is noteworthy that the previous Illinois child pornography statute proscribed, inter alia, exhibition of the “genitals or pubic area.” (Ill. Rev. Stat. 1981, ch. 38, par. 11—20a(a)(2)(f), repealed 1984.) The omission of the latter part of this language from the new statute creates a presumption that the legislature intended to narrow the reach of this statute. (Lingwall v. Hoener (1985), 108 Ill. 2d 206, 212, 483 N.E.2d 512, 515; Board of Trustees of Community College District No. 508 v. Human Rights Comm’n (1981), 88 Ill. 2d 22, 31, 429 N.E.2d 1207, 1212.) For all these reasons, we find that the photograph allegedly taken by the defendant was not child pornography as defined by the statute, and therefore, defendant’s conviction must be reversed.

We also find, as an independent ground for reversal, that the State’s evidence was insufficient to establish beyond a reasonable doubt that defendant took the photograph at issue.

In this cause the complainant testified that the defendant forced her at gunpoint to disrobe and then took a series of nude photographs of her. However, two days after this allegedly occurred she again was at his home baby-sitting for him, and. she apparently continued to do so for months thereafter. She failed to report this crime to the authorities for over two years. Although she testified that defendant threatened to do something to her if she went to the police or told anybody, she also testified that he said he himself would show one picture to the chief of police and he did not care if she told his wife about the photographs. When she did come forward, it was with a man who had had an altercation with the defendant. The complainant testified that the photographs were taken some time in March or April, but insisted that a Christmas tree was still up in the home where they were taken.

The complainant only produced one photograph, although 11 had allegedly been taken. That photograph, according to her testimony, was not found at defendant’s home but at that of a third person, Gary McGee. McGee was never interviewed by the officer investigating this crime. Although the photograph clearly shows some of the contents of a bedroom, no testimony was introduced establishing that the bedroom was in fact that of the defendant.

The complainant admitted that before trial she had expressed the intent to take the stand and testify that two boys, who had previously raped her, had taken the photographs. She also claimed that this would be a lie, but her explanation for that planned testimony, which we have set out above, is incomprehensible.

Although the credibility determination of the trial court, as the trier of fact, is accorded a great deal of deference upon review, that deference does not remove this court’s obligation to review the trial testimony and to reverse where that testimony is so incredible and so unsatisfactory as to raise a reasonable doubt as to the defendant’s guilt. (People v. Morgan (1977), 69 Ill. 2d 200, 206-07, 370 N.E.2d 1063, 1066; People v. Appleby (1968), 104 Ill. App. 2d 207, 212-13, 244 N.E.2d 395, 398.) Our obligation as a reviewing court cannot be met by turning a blind eye to the insufficiency of the State’s evidence. In this cause the State relied entirely upon the testimony of the complainant to establish defendant’s guilt. That testimony, as outlined above, was incredible and unsatisfactory. For these reasons we must reverse defendant’s conviction.

The judgment of the trial court is reversed.

Reversed.

CERDA, P.J., concurs.

JUSTICE RIZZI,

dissenting:

I dissent. I would affirm the child pornography conviction and sentence.

Pornography poses a threat to the child victim equal to if not grater than sexual abuse and prostitution and constitutes a threat to the public health, safety and general welfare. (People v. Walcher (1987), 162 Ill. App. 3d 455, 458-59, 515 N.E.2d 319, 321-22.) A reviewing court may not substitute its judgment for that of the trier of fact, and a conviction may not be reversed unless the evidence is so improbable as to create a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320.) The evidence here is not so improbable.

In summary, the minor testified that the defendant took numerous nude photographs of her while she was at his home baby-sitting. The trial court found the minor victim to have been a “very credible” witness despite “some small collateral impeachment” which he characterized as unimportant. (Emphasis added.) The court found that the defendant took the photograph and threatened her with bodily harm. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Phillips (1989), 127 Ill. 2d 499, 510, 538 N.E.2d 461, 472-73.

The photograph consisted of the victim’s completely naked body, including her breasts and genital area. S.T. is in an obviously posed, intentionally seductive position. The focus of the photograph is the genital area. Examination of the photograph refutes any suggestion that mere nudity is depicted. The photograph was obviously intended to excite sexual desire. S.T.’s genitals are exhibited or displayed, albeit in an obscured manner. This is the type of photograph that the statute prohibits. (Walcher, 162 Ill. App. 3d at 461.) The fact that photographs in other cases may be more offensive or focus somewhat more clearly or closely on the genitals does not require reversal of the defendant’s conviction. (Walcher, 162 Ill. App. 3d at 462.) Any other interpretation elevates form over substance at the expense of the victims that the legislation should be protecting.

      Shari first insisted, when questioned by the prosecutor and the court, that this occurred in 1986. Finally, when the prosecutor asked her whether it could have been in April of “this year” (1987), she responded “Yes. Of this year. I’m falling off. Yes. This year.”