¶1dissenting:
¶2I dissent. “[A] criminal or penal statute is to be strictly construed in favor of the accused, and nothing should be taken by intendment or implication beyond the obvious or literal meaning of the statute.” People v. Effler, 349 Ill. App. 3d 217, 219 (2004), citing People v. Laubscher, 183 Ill. 2d 330, 337 (1998). “Any ambiguity in a penal statute must be resolved in favor of the defense.” Effler, 349 Ill. App. 3d at 219, citing People v. Whitney, 188 Ill. 2d 91, 98 (1999). As the majority points out, “[a] person commits the offense of child pornography in Illinois by photographing any child … ‘depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals … of the child or other person.’ ” (Emphasis in original.) 354 Ill. App. 3d at 74-75, quoting 720 ILCS 5/11 — 20.1(a)(l)(vii) (West 2000). The legislature specifically chose the word “unclothed,” which the majority recognizes carries the primary meanings of “ ‘not clothed’ ” or “ ‘naked.’ ” 354 Ill. App. 3d at 75, quoting Webster’s Third New International Dictionary 2485 (1986). The majority writes that “it is undisputed that while the victim is wearing stockings, they are completely transparent and the vagina is clearly visible and exposed.” (Emphasis added.) 354 Ill. App. 3d at 75. The photographs in this record do not support the use of the word “transparent.” Though the child’s vagina is clothed in translucent panty hose, it is clothed. The legislature has chosen to criminalize photographs depicting the unclothed genitals. In its attempt to buttress the statute and its oversight of not contemplating a situation with translucent clothing such as this, the majority has extended the term “unclothed” to include clothing which fails to sufficiently “conceal” that which lay underneath. I believe this to be both a tortured construction of the statute and a result-oriented attempt to legislate from the bench. Unclothed means “without clothing.” Although what the defendant allegedly did might be repugnant to most people, the child in this case had clothing covering her genitals. I do not believe it is a court’s place to include covered genitals in the definition of “unclothed genitals.” That is for the legislature. Therefore, the conviction must be reversed.