¶1dissenting:
¶2I agree with the majority that the statute is constitutional, but respectfully disagree with the majority’s conclusion that the State proved Ms. Smith was a disabled person as defined by the statute. The statute defines "disabled person” as
"a person who suffers from a permanent physical or mental impairment resulting from disease, injury, functional disorder or congenital condition which renders such person incapable of avoiding or preventing the commission of the offense.” (720 ILCS 5/16—1.3(b)(2) (West 1992).)
¶3There is absolutely no evidence that Ms. Smith was "suffering from a disease, etc., which rendered her incapable of avoiding or preventing the commission of the offense.” That is a prerequisite of the crime.
¶4Ms. Smith testified she was disabled by a condition she described as "post-poliosclerosis.” Nothing in the disease of poliomyelitis suggest that a person so affected is unable to avoid or prevent the offense of "financial exploitation” as required by the statute. Further, Ms. Smith’s condition was "post-poliosclerosis.” "Post,” when used in that sense, means "following after,” "subsequent to.” (Webster’s Third New International Dictionary 1771 (1986).) In other words, Ms. Smith was suffering from a condition subsequent to her disease. Nothing in the record suggests Ms. Smith was left, after her disease, "with the inability to avoid or prevent the commission of the offense” as defined by the criminal statute.
¶5If the legislature wanted to subject insurance agents who take advantage of disabled persons, regardless of the nature of their disability, they could have said so. It is to be noted that the crime of "financial exploitation” is also extended to the elderly. Yet, "elderly” means only those who are over 60 years old and also suffering from a disease or infirmity associated with advanced age and manifested by physical, mental or emotional dysfunctioning to the extent that such person is incapable of avoiding the commission of the offense.
¶6Under the majority opinion any "disabled person” or elderly person is protected by the statute. Yet, that is not what the legislature said or apparently meant.
¶7In this connection, it should be observed that the applicable statute provides that its provisions do not limit the remedies available to a victim under the Illinois Domestic Violence Act of 1986 (Ill. Rev. Stat. 1991, ch. 40, par. 2311—1 et seq.). Yet, that act defines an adult with disabilities as including one who "has never been adjudicated an incompetent.” (Ill. Rev. Stat. 1991, ch. 40, par. 2311—3(2).) The effect of the majority’s opinion is to treat adults as adults with a disability identical when exploited, even though the two acts contain a different definition as to the disability suffered by the adult.
¶8The effect of the majority opinion is to create a new crime applicable to adults who are disabled regardless of the nature of the disability. Creation of a crime is for the legislative branch of government, not the judiciary.
¶9I would reverse on the sole basis that the State failed to prove an essential element of the crime to wit: that the victim was disabled as that term is defined in the act creating the crime of "financial exploitation of an elderly or disabled person.”