NO. 4-05-0516 Filed 4/19/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Douglas County KELLY J. DENBO, ) No. 04CF99 Defendant-Appellant. ) ) Honorable ) Frank W. Lincoln, ) Judge Presiding.
JUSTICE APPLETON delivered the opinion of the court:
A jury found defendant, Kelly J. Denbo, guilty of
aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West
2004)) in that she persisted in an act of vaginal penetration
after the victim withdrew her consent. The trial court sentenced
defendant to imprisonment for seven years. She appeals on the
ground of insufficiency of the evidence, arguing that the State
failed to prove the victim's withdrawal of consent or her own use
of force.
Defendant put her hand into R.H.'s vagina during
otherwise consensual sexual relations. R.H. pushed defendant
twice--harder the second time--intending to signify that she no
longer consented to the sexual penetration. Defendant removed
her hand from R.H.'s vagina on the second push. Looking at the
evidence in a light most favorable to the prosecution, we con-
clude that no rational trier of fact could find, beyond a reason- able doubt, that the first push objectively communicated to
defendant a withdrawal of consent. The State failed to prove the
element of force. Therefore we reverse the trial court's judg-
ment.
I. BACKGROUND
The information charged that on September 27, 2004,
defendant committed aggravated criminal sexual assault (720 ILCS
5/12-14(a)(2) (West 2004)) "in that[,] by the use of force[,]
[s]he placed her fist into the vagina of [R.H.] and, in doing so,
*** caused bodily harm, vaginal trauma, to *** [R.H.]."
At trial on April 20, 2005, the State called R.H., the
adult complainant, as its first witness. Because she was ex-
tremely hard of hearing, practically deaf, she testified through
an interpreter. R.H. first met defendant in June 2004 at a
nursing home, where they both worked. They developed a romantic
relationship. On September 27, 2004, they both had the day off
and spent it together, taking defendant's one-year-old nephew and
three-year-old niece to McDonald's, Rockome Gardens, and a video
store. Afterward, R.H. stayed for a cookout at defendant's house
in Tuscola. Defendant drank beer while grilling the steaks, but
R.H. abstained from alcohol that evening. After supper, R.H.
went to defendant's bedroom "and just kept waiting and waiting
and waiting" while defendant talked on the telephone. "[O]kay,"
R.H. thought. "[She] waited a little longer[] and *** thought [that defendant] was going to give the kids a bath." Eventually,
she told defendant she was "go[ing] to the store [to] get a diet
[C]oke and would be right back." Defendant appeared to be "out
of it": "she was very slow to respond and *** slurred her
words." Upon returning from the store, R.H. noticed the lights
were off in the bedroom--they were on when she left--and three
candles were burning. She did not see defendant. R.H. lay down,
clothed, on defendant's bed. Defendant entered the bedroom.
"She had a robe on," R.H. testified, "and like a ballet outfit or
something. I really don't know. I was kind of hum."
Here is what happened next, according to R.H.:
"Well, I was [lying] on the bed[,] and
she was on me--kind of straddled me[--]and
kissing my face[,] and then she pulled me
forward. She grabbed both my arms[,] and
then she took off my top and my bra[,] and
all of that was within--say[,] a short period
of time. Then she shoved me, and she was
rough. I thought, [H]um. I had no clue as
to what was going on, and then she took my
shorts off and my underwear off.
Q. What happened next?
A. Well, then she went right through my
vagina. I didn't scream. I didn't do any-
- 3 - thing. I knew the kids were asleep. Knew
the kids were asleep[,] and she kept pushing
me.
Q. What did you do to her?
A. And it continued[,] and then the
second time I tried to push her away[,] and
it was hard enough. I was able to get up. I
went to the bathroom[,] and I was bleeding.
Q. Let's back up a little bit. You
indicated you were [lying] on the bed. How
was Kelly on you?
A. Kelly was kneeling on top of me and
had my legs spread apart so she was in be-
tween my legs.
Q. You said she 'went through' you.
Explain what was used to go through you?
A. Right there, her hand. (Indicating)
Q. Where did she place her hand?
A. Went through the pelvic area. I
tried to push her back, but she continued[,]
and she just kept continuing, and then I
pushed her again, and then I went to the
bathroom, and I was bleeding. I came back
out and was looking for her[,] and she was
- 4 - outside at that point and crying.
Q. You went to the bathroom and noticed
you were bleeding?
A. Yes.
Q. Where was the bleeding from?
A. Well, the reason I was bleeding is
because she hurt me. She used her hand to go
direct[ly] through my vagina, yes, my vagina.
Q. When was the next time you saw the
[d]efendant?
A. Well, I went to the bathroom--I went
into the bathroom[,] and I came back out and
was talking to her[,] and I asked her at that
point why she did it. She said she didn't
know why she hurt me. I continued to ask
her. I stayed at Kelly's because I needed an
answer from her as to why she hurt me."
Because R.H. was deaf, she and defendant often communi-
cated with one another in writing. R.H. offered--and the trial
court admitted into evidence, over defendant's foundational
objection--eight handwritten letters R.H. had received from
defendant. According to R.H., defendant wrote People's exhibit
No. 1 on September 27, 2004, shortly after the incident. It
says: "I will let you know tomorrow night. Is [illegible] us.
- 5 - Okay[?] I love you. I'm taking a shower."
R.H. testified she received People's exhibit No. 2 on
September 28, 2004. That letter reads as follows:
"I know that no amount of apologies [is]
going to be okay. I am sorry that that hap-
pened. Okay[?] I can't believe that I could
do what someone did to me. It makes me
fucking sick to my stomach[,] and I am sorry.
I am worried. I do want you to be okay. I
should have said something sooner. I've done
wrong[,] and it will never be forgiven or
forgotten. I am truly sorry[,] though. Be
careful. I don't want to lose you. That's
not what I want. I scared you, yes. I can
apologize forever for that. There [is] no
amount of apologies I can give you. Yes, you
are to[o] good for me. I love you[,] and I
hurt you. This is something that can't be
forgiven. I'm so sorry. I never meant for
this to happen. We probably need some time
apart for awhile. I need to straighten out
my scary side. Med[ication]s or something.
I don't want to break up. Maybe I need to
get rid of [the] scary side of me. I know I
- 6 - have one. We need time apart--okay[?] I'm
sorry it had to end this way. I will not
quit [because] I love my residents. I am
sorry I hurt you last night. I don't want to
hurt anyone else that way again[,] [includ-
ing] you. I'm sorry. I swear to you that I
did not hear you say no. I am not the kind
of person that does this. I care that I hurt
you. I'm sorry you're shocked. I'm sorry I
did this. I'm just sorry. Okay[?] I knew
you can't take me back. That's understand-
able. There [is] no amount of sorrys I can
give you. I'm sorry. Please let me know if
you're going to send me to jail or tell work.
Okay[?] So I can quit and go elsewhere. I
am sorry about what happened." (Emphasis in
original.)
R.H. testified that defendant sent her the remaining
letters in October 2004 through an intermediary at work. Peo-
ple's exhibit No. 3 reads as follows:
"I do love you and care for you. I'm
very worried about you. I know you said not
to. I'll do it anyway. My feelings about
what I've done are mixed. I should die for
- 7 - what I've done. I feel like I should not be
with you because of this. I want to be with
you. But after what I've done[,] I feel
horrible, sick. I don't feel like I deserve
you. We need time[,] okay[?] I'm going to
have to feel right about myself before I can
go on with you[,] okay[?] Please understand.
I do want you[,] okay[?] I just need time to
fix myself."
People's exhibit No. 4 appears to consist of three
letters. Here is the first one:
"I did read your note. I do get mean
sometimes, when I'm drinking. Not always[,]
though. And I'm sorry that I hurt you when I
do. I do realize that I've done it[,] and
I'm sorry. It makes me feel like shit when I
do[,] and no amount of apologizing can make
up for it. I only hope I can change and give
you the life and love you want[,] because I
want it with you. I love you. Very much.
I'll try to show it better. I'm learning[.]
I'm thinking that I love you and I don't want
to hurt you anymore. I do have a temper. It
comes out quick[ly]. I'll learn to deal with
- 8 - it[,] okay[?] I love you. I don't want to
lose you[,] okay[?] Right now I'm by myself
on [the] west hall[,] and it's a lot of work
right now. I'm sorry I'm late writing you.
I'll do my hardest to please you forever.
You are my only true love. I will always
love you. Let me know if you are coming over
tonight."
The second letter in People's exhibit No. 4 reads as follows:
"I know it seems like I don't care. But
I do. It just so happens that I am under a
great deal of stress. The kids, my parents,
brother. My job. I have blood in my bowels
because I am under too much stress. Then I
broke a blood vessel in my eye. It[']s been
a very stressful week. Also I hurt you.
That[']s just making it all the more stress-
ful. I do care. But I'm at my stress point
right now. I do love you. But I asked [for]
time away to sort out my life. I need to
unstress myself. I[']m getting to the point
of saying fuck it to life and go[ing] away.
But I know I can't. I just need time[,]
okay[?] Not forever. I'm sorry I haven't
- 9 - been nice. I'm just stressed out. A lot of
crap is piling on me[,] and I'm sorry for
taking it out on you. [The] [r]eason I
touched you like that down [there] is I
thought you would be okay with that kind of
lovemaking. I was way to[o] rough. I[']m
never like that[,] okay[?] I should have
asked you about it. I was to[o] rough when I
should have been gentle with you[,] and I
take full responsibility for what I've done.
Now all you can do is give me time and space.
I love you[,] okay[?]"
In the third letter in People's exhibit No. 4, defendant said:
"I am so sorry I hurt you that way. I
can't believe I was capable of doing that to
anyone. What exactly do they have to do to
fix you[?] I am responsible for this. I
feel the need to be killed in some horrible
way right now. I feel that I don't need to
be forgiven, ever. I am very sorry this
happened. We do need time because I need to
fix my temper, drinking. Basically, myself.
I am truly sorry that I did this. I love you
and did not want to hurt you. Please believe
- 10 - me when I say it wasn't intentional. I am
sorry. I know we need to talk. We will. I
need time to sort out what you just told me.
I am sorry."
People's exhibit No. 5 says: "I really do hope
you[']r[e] not upset with me. I want you on Sunday and Monday.
Is that okay[?] I won't go if you[']r[e] going to be upset. I
love you and wanna a few days with you. But I promised my
cousins. Don't be angry."
The final letter, People's exhibit No. 6, says: "First
of all[,] I know in my heart I did not rape you. I did[,]
however[,] make you bleed[,] and for that I'm sorry."
The prosecutor asked R.H. the following:
"Q. Was this touching without your con-
sent?
* * *
A. No, no[,] I did not consent to that.
I did not consent to that."
On cross-examination, defense counsel asked R.H.:
"Q. You said earlier, I think, that
Kelly was kneeling on the bed[,] on top of
you?
A. I had my legs spread apart[,] and she
was in between them, between my legs.
- 11 - Q. You said she removed your top and
your bra?
Q. Did you try to stop her from doing
that?
A. No.
Q. And you said she removed your pants
and underwear?
A. Yes, yes[,] that is correct.
Q. I think you said[,] in your direct
testimony[,] that then Kelly [']went[']--and
your words were[] [']right through my va-
gina[']?
A. That is correct.
Q. Could you explain what you mean by
that[,] exactly?
A. Well, the hand itself went right
through my privates. I tried to push her
back, but she continued[,] and then I pushed
her again[,] and then I was able to get up
and go to the bathroom[,] and that is when I
- 12 - noticed I was bleeding."
R.H. admitted spending the rest of the night with
defendant in her bed. She admitted having sex with defendant on
three occasions before the incident. These sexual encounters
were all in defendant's bedroom. After September 27, 2004, R.H.
visited defendant's house one time. It was defendant's idea that
she come over, but when she saw that defendant had been drinking,
she went home.
On redirect examination, the prosecutor asked R.H. why
she did not immediately leave the premises after defendant pushed
her hand through her vagina. R.H. answered: "Because I wanted
to know why she had hurt me[,] and I had no clue. I never ***
could understand why." The trial adjourned for the day.
On April 21, 2005, the State called a Tuscola police
officer, Richard A. Lamb, as its next witness. He testified he
interviewed R.H. on November 9, 2004. The interview was origi-
nally scheduled to occur two weeks earlier, but he had to cancel
that appointment because of difficulty finding an interpreter.
"[D]ue to the time frame," the letters (People's exhibit Nos. 1
through 6) were the only physical evidence the police collected
in the case.
The State then called Marlene Kremer, a family practice
physician from Sarah Bush Lincoln Health Center in Mattoon. She
testified that on September 30, 2004, she received a message at
- 13 - her office requesting that she telephone R.H.'s roommate, Donna
Goad. "The message said that [R.H.] had been raped and was very
upset and she needed an appointment." Kremer returned the
telephone call and scheduled an appointment for that same day.
R.H. arrived at the office with Goad, looking "very anxious and
upset." The prosecutor asked Kremer:
"Q. How did she describe that she had
been injured?
A. She said that three days before, her
long[]time girlfriend had--was intoxicated[]
and had forced her to have--using some type
of an object, which I do not know what the
object was, had repeatedly thrust this object
into her vagina. Then she was able to fight
her off and left."
The wall of R.H.'s vagina "was very abraded. It was kind of like
a rug burn. There were no obvious lacerations. There was no
bleeding at the time of this exam, but it was just very abraded,
irritated"--as if the vagina had suffered from "[e]xcessive
friction." Kremer would have expected R.H.'s vagina to look like
this if R.H.'s girlfriend had done what R.H. said. It was
possible that the vagina bled at the time of the injury.
The prosecutor asked Kremer whether posttraumatic
stress syndrome was "accepted as a behavioral condition that
- 14 - [could] result from sexual assault" and whether she had "dealt
with" this condition in the course of her profession. To both
questions, Kremer answered yes. The prosecutor asked her to
describe the "model characteristics" of the syndrome. Kremer
answered:
"It's a person who has either witnessed
or been a victim of a severely traumatic
event, where they felt very hopeless,
helpless--had no control and[,] subsequent to
that[,] *** they have either [sic] flashback
recollections. They avoid situations or
things that make them recall that event.
They have changes in their behavior, either
[sic] difficulty sleeping, you know, more
irritable, those type[s] of behaviors."
Kremer continued treating R.H. after September 30,
2004--who, in fact, was her patient before then. Kremer saw her
again on October 22, 2004. At that time, she diagnosed
posttraumatic stress disorder. R.H. was "having crying spells.
She was still able to go to work[] but was otherwise not doing
much of anything else." She saw R.H. again on November 12, 2004,
and found her to be still suffering from the disorder. She saw
no symptoms of the disorder before September 30, 2004.
The State rested, and defendant moved for a directed
- 15 - verdict on the ground that the State had failed to prove "the use
of force or threat of force." See 720 ILCS 5/12-14(a), 12-
13(a)(1) (West 2004). Defense counsel argued: "All of the
evidence points to the fact that this was a voluntary interac-
tion. It occurred in Ms. Denbo's home, in her bedroom, on her
bed, where the alleged victim came in and la[y] down and volun-
tarily *** allowed Ms. Denbo to undress her *** and then engaged
in a sexual act that she didn't object to." The prosecutor
responded that because R.H. objectively showed her lack of
consent by pushing defendant and defendant nevertheless continued
to ram her hand into R.H.'s vagina, the State had proved the
element of force. The trial court denied the motion for a
directed verdict.
Defendant called her mother, Nancy Denbo, as her first
witness. Denbo testified she lived in a small two-bedroom house
on Overton Street in Tuscola. In the summer of 2004, R.H. began
visiting defendant at Denbo's house two or three times a week.
On September 27, 2004, Denbo worked from 2 to 10 p.m. at the
nursing home. After coming home between 10:30 and 10:45 p.m.,
she took a shower and watched television with her husband, her
son, her grandchildren, defendant, and R.H. Nothing unusual
happened that evening after she got home; she was aware of no
disturbance. Because "the kids" (apparently, defendant's nephew
and niece) typically "g[o]t up pretty early," Denbo probably rose
- 16 - between 7 and 7:30 a.m. on September 28, 2004. R.H. was still in
the house, and nothing seemed amiss. After breakfast, Denbo and
R.H. "drank coffee out in the carport" for a couple of hours
while the children played outside. R.H. left between 11 and
11:30 a.m. because Denbo had to go in and start getting ready for
work. After September 27, 2004, R.H. came over twice for dinner
and even stayed overnight sometime in October 2004.
Defendant called Goad as her next witness. She testi-
fied she lived in Atwood with her son and R.H. For the past four
years, Goad had been a dietary supervisor at the nursing home.
She was R.H.'s boss. Goad was only casually acquainted with
defendant; she knew that defendant worked at the nursing home and
had a relationship with R.H. The evening of September 28, 2004,
Goad saw R.H. at home and noticed nothing unusual about her
behavior at that time. On September 29, 2004, R.H. came to work
an hour early to speak with Goad. R.H. did not finish her shift
that day; "she *** said that she was bleeding." She also missed
work on September 30, 2004, because "she was still having prob-
lems and she wasn't going to be able to work." Goad explained to
her the nursing home's policy: "if you miss two days because of
illness, *** you have to go to the doctor." Therefore, on
September 30, 2004, Goad accompanied R.H. to the doctor's office.
A week or two later, at R.H.'s request, Goad set up an appoint-
ment for her with a counselor.
- 17 - The defense next called Mary Burton, who testified that
she lived in Tuscola, across the street from defendant. She had
seen R.H. visiting at defendant's residence during the summer of
2004, when they were dating. R.H. was there "[u]p to four or
five times a week, given their schedule at work." R.H. typically
arrived in her white "mini-truck."
Defendant then took the stand. She testified that she
lived with her mother, brother, nephew, and niece in Tuscola.
She met R.H. around the end of May 2004, and by the end of June
2004, they were lovers. From June until October 2004, R.H.
visited defendant's house three or four times a week and usually
stayed overnight. On September 27, 2004, R.H. came over for a
cookout. Defendant had two beers that evening but did not become
intoxicated. After dinner, she and defendant watched a couple of
movies with the children. Defendant then bathed and dressed the
children and handed them over to her brother's care so that she
could be alone with R.H. Defendant took a shower around 9 or
9:30 p.m., and while R.H. was at the store, she set the scene in
the bedroom: lit the candles, put on some music, and turned off
the lights. Upon returning, R.H. lay on the bed. Defendant
entered the bedroom, wearing a robe and a silky negligee--"a
white[,] strange teddy thing." She lay down next to R.H. and
talked with her for a few minutes. (R.H. could understand her if
she raised her voice.) Then they "started getting intimate,"
- 18 - "kissing and touching." Defendant helped R.H. remove her top and
bra and then her shorts and boxer underwear.
Defendant testified:
"We were having--I was giving her oral
sex[,] and I was[,] I guess[,] down in that
area, and I began to digitally[,] with two
fingers, insert them into her vagina[,] and
we had sex relations that way.
Q. Okay. Now[,] at that point[,] what
did [R.H.] do, if anything?
A. Well, I guess she was enjoying it.
She didn't tell me to stop. She didn't push
me away.
Q. During this time, up to this point,
had she said anything to you?
A. Not that I can recall.
Q. What happened next[,] then?
A. I guess she was done, and my head was
still in that particular area, so she nudged
my shoulder. And I didn't hear her the first
time, because music was on and my head was in
an uncompromising [sic] position.
Q. Okay.
A. But she nudged my shoulder[,] and I
- 19 - looked up[,] and she said she was finished[,]
and I said okay, and at that time she went to
the bathroom.
A. She came back and said she was bleed-
ing a little. She said she was hurting[,]
and I apologized. I didn't know that I might
have hurt her a little bit digitally, doing
that to her.
Q. How did she appear to you then?
A. She was a little scared about the
bleeding. She was bleeding a little bit. I
do admit that. But she was okay. We talked,
and then we wound up going to bed not too
long after[ward].
Q. Did she, during the time you were
having sexual relations together, did she
ever scream or cry out, or anything?
A. No, not that I can recall.
Q. And did she stay there the night with
Q. And slept there with you in your bed?
A. Yes."
- 20 - R.H. was still in bed with defendant the next morning when the
children leaped onto the bed and awaked them. After defendant
made breakfast for the children and got them dressed, she and
R.H. went outside with defendant's mother and drank coffee.
According to defendant, R.H. spent the night at defen-
dant's house on two occasions after September 27, 2004. Her
relationship with R.H. deteriorated, and defendant broke it off
about the second week in October 2004. Defendant disagreed that
all of the letters in People's exhibit Nos. 1 through 6 pertained
to the incident of September 27, 2004. According to her, some of
the letters predated the incident. She claimed to have written
People's exhibit Nos. 1, 2, and 5 during the summer of 2004
(before September). She claimed to have written People's exhibit
No. 3 at work around September 30, 2004, and People's exhibit
Nos. 4 and 6 right after September 27, 2004. Defendant denied
forcibly having sex with R.H.
On cross-examination, defendant testified that when she
gave oral sex to R.H. in the bedroom on September 27, 2004, R.H.
had an orgasm. Defendant denied using force when digitally
penetrating her, although she remarked that "fingernails [could]
scrape." Defendant rested.
In its case in rebuttal, the prosecutor presented
People's exhibit No. 7, a record of defendant's conviction in
Georgia for deposit account fraud. The State also recalled R.H.,
- 21 - who denied that defendant performed oral sex on her the night of
September 27, 2004, and denied having an orgasm when defendant
digitally penetrated her that night. According to R.H., she
visited defendant's house once after September 27, 2004: on
October 1 or 2, 2004. Defendant telephoned her, and R.H. came
over and stayed with the children for about 10 minutes, until she
perceived that defendant had been drinking, whereupon she left.
R.H. denied spending the night at defendant's house anytime after
September 27, 2004. The State rested, and the jury found defen-
dant guilty of aggravated criminal sexual assault.
On May 25, 2005, the trial court sentenced defendant to
7 years' imprisonment, with credit for 66 days, followed by 3
years of mandatory supervised release.
This appeal followed.
II. ANALYSIS
The State charged defendant with aggravated criminal
sexual assault within the meaning of section 12-14(a)(2) of the
Criminal Code of 1961 (Code) (720 ILCS 5/12-14(a)(2) (West
2004)). That section provides as follows:
"(a) The accused commits aggravated
criminal sexual assault if he or she commits
criminal sexual assault and any of the fol-
lowing aggravating circumstances existed
during *** the commission of the offense:
- 22 - ***
(2) the accused caused bodily
harm *** to the victim ***." 720
ILCS 5/12-14(a)(2) (West 2004).
Thus, to commit aggravated criminal sexual assault, one
must commit criminal sexual assault. According to the informa-
tion, defendant committed criminal sexual assault within the
meaning of section 12-13(a)(1) of the Code (720 ILCS 5/12-
13(a)(1) (West 2004)). That section provides as follows:
"(a) The accused commits criminal sexual
assault if he or she:
(1) commits an act of sexual
penetration by the use of force or
threat of force[.]" 720 ILCS 5/12-
13(a)(1) (West 2004).
"Sexual penetration" includes "any intrusion, however slight, of
any part of the body of one person *** into the sex organ *** of
another person." 720 ILCS 5/12-12(f) (West 2004). Section 12-
12(d) defines "force or threat of force" as follows:
"(d) 'Force or threat of force' means
the use of force or violence, or the threat
of force or violence, including but not lim-
ited to the following situations:
(1) when the accused threatens
- 23 - to use force or violence on the
victim or on any other person, and
the victim under the circumstances
reasonably believed that the ac-
cused had the ability to execute
that threat; or
(2) when the accused has over-
come the victim by use of superior
strength or size, physical
restraint[,] or physical confine-
ment." 720 ILCS 5/12-12(d) (West
2004).
"Force," within the meaning of sections 12-12(d) and
12-13(a)(1) of the Code, does not mean the force inherent to all
sexual penetration--for example, the exertion of the hand in the
act of pushing into the vagina--but physical compulsion, or a
threat of physical compulsion, that causes the victim to submit
to the sexual penetration against his or her will. People v.
Haywood, 118 Ill. 2d 263, 274-75, 515 N.E.2d 45, 50-51 (1987);
People v. Kinney, 294 Ill. App. 3d 903, 908, 691 N.E.2d 867, 870-
71 (1998).
In its case in chief, the State has the burden of
proving the element of force beyond a reasonable doubt. Haywood,
118 Ill. 2d at 274, 515 N.E.2d at 50. By proving force, the
- 24 - State necessarily proves nonconsent, for "if *** one was forced
to perform an act, it follows that [one's] act was nonconsensual;
and if one freely consents to the performance of an act upon
oneself, clearly [one] has not been forced." Haywood, 118 Ill.
2d at 274, 515 N.E.2d at 50; see also People v. Roberts, 182 Ill.
App. 3d 313, 317, 537 N.E.2d 1080, 1083 (1989). The defendant
may raise the defense of consent to rebut the State's evidence of
force. Haywood, 118 Ill. 2d at 274, 515 N.E.2d at 50; 720 ILCS
5/12-17(a) (West 2004); see also Roberts, 182 Ill. App. 3d at
318, 537 N.E.2d at 1084 (characterizing consent as a defense but
not as an affirmative defense). Section 12-17(a) of the Code
provides as follows:
"(a) It shall be a defense to any of-
fense under [s]ection 12-13 through 12-16 of
this Code [(720 ILCS 5/12-13 through 12-16
(West 2004))] where force or threat of force
is an element of the offense that the victim
consented. 'Consent' means a freely given
agreement to the act of sexual penetration or
sexual conduct in question. Lack of verbal
or physical resistance or submission by the
victim resulting from the use of force or
threat of force by the accused shall not
constitute consent. The manner of dress of
- 25 - the victim at the time of the offense shall
not constitute consent." 720 ILCS 5/12-17(a)
(West 2004).
If the defendant raises the defense of consent, "the State has a
burden of proof beyond reasonable doubt on the issue of consent
as well as on the issue of force." Haywood, 118 Ill. 2d at 274,
515 N.E.2d at 50.
In its brief, the State concedes that R.H. "implicitly
consented to some sort of penetration by allowing defendant to
undress her, to spread her legs apart, and to position herself
between [R.H.'s] legs." We agree with that concession. When
defendant sexually penetrated R.H. by inserting her fingers or
hand into R.H.'s vagina, she did so with R.H.'s consent--and,
therefore, not by "force," as that term is defined in section 12-
12(d) of the Code (720 ILCS 5/12-12(d) (West 2004)). One may
infer that in performing the act of penetration, defendant was--
as she admitted in one of her letters--"to[o] rough when [she]
should have been gentle." Nevertheless, R.H. consented to the
penetration itself; therefore, defendant did not accomplish the
penetration by overcoming R.H.'s will with force or the threat of
force.
The State contends this is a case of postpenetration
aggravated criminal sexual assault. On July 25, 2003, the
General Assembly passed Public Act 93-389 (Pub. Act 93-389, §5,
- 26 - eff. July 25, 2003 (2003 Ill. Laws 2872, 2872-73)), adding
subsection (c) to section 12-17 of the Code (720 ILCS 5/12-17
(West 2004)). Section 12-17 is entitled "Defenses," and (as we
have discussed) subsection (a) provides that consent is a defense
to criminal sexual assault and to other sex crimes in which force
or the threat of force is an element. 720 ILCS 5/12-17(a) (West
2004). Subsection (c) limits or clarifies the defense in subsec-
tion (a) by making the consent effective only up to the with-
drawal of consent: "A person who initially consents to sexual
penetration or sexual conduct is not deemed to have consented to
any sexual penetration or sexual conduct that occurs after he or
she withdraws consent during the course of that sexual penetra-
tion or sexual conduct." 720 ILCS 5/12-17(c) (West 2004).
In the minds of some commentators, the concept of
withdrawal of consent makes the element of force problematic. In
re John Z., 29 Cal. 4th 756, 764, 60 P.3d 183, 188, 128 Cal.
Rptr. 2d 783, 789-90 (2003) (Brown, J., dissenting); N. Walsh,
The Collusion of Consent, Force, & Mens Rea in Withdrawal of
Consent Rape Cases: The Failure of In re John Z., 26 Whittier L.
Rev. 225, 252 (2004); J. Emlen, A Critical Exercise in Effectuat-
ing "No Means No" Rape Law, 29 Vt. L. Rev. 215, 248 (2004);
Note, Acquaintance Rape & Degrees of Consent: "No" Means "No,"
But What Does "Yes" Mean?, 117 Harv. L. Rev. 2341, 2363 (2004).
If, initially, A sexually penetrates B with B's consent (and,
- 27 - therefore, without force) but merely remains inside of B after B
says, "Stop, I don't want to do this any longer," where is the
force? "To prove the element of force is implicitly to show
nonconsent" (Haywood, 118 Ill. 2d at 274, 515 N.E.2d at 50); but,
in a case of postpenetration criminal sexual assault, it is
unclear that proving the withdrawal of consent implicitly proves
force. One writer has drawn a distinction between
"[p]ostpenetration rape [as] a doctrine of unwanted sex" and
"prepenetration rape [as] a doctrine of forced sex." 117 Harv.
L. Rev. at 2363. Another writer argues: "[O]nce the victim
unequivocally revokes consent, the force required to accomplish
continued penetration is sufficient to complete the crime." A.
Davis, Clarifying the Issue of Consent: The Evolution of
Post-Penetration Rape Law, 34 Stetson L. Rev. 729, 757 (2005).
The question is whether mere persistence in sexual penetration,
after the withdrawal of consent, can serve as a "proxy" for force
(117 Harv. L. Rev. at 2363), considering that "force" must be
something more than the force inherent to sexual penetration
(Haywood, 118 Ill. 2d at 274-75, 515 N.E.2d at 50-51; Kinney, 294
Ill. App. 3d at 908, 691 N.E.2d at 870-71). See State v. Robin-
son, 496 A.2d 1067, 1070 (Me. 1985) ("We emphasize that the
ongoing intercourse, initiated[,] we here assume[,] with the
prosecutrix's consent, did not become rape merely because she
revoked her consent. It became rape if and when the prosecutrix
- 28 - thereafter submitted to [the] defendant's sexual assault only
because '[force or the threat of force made her] unable to
physically repel the [defendant] or [too frightened to do so]'").
Perhaps, as a practical matter, this question will
seldom arise because if B wishes to have sex no longer, B will
surely disengage if he or she is able to do so, and if, by his or
her physical posture, A prevents B from disengaging--for example,
by continuing to lie on top of B (John Z., 29 Cal. 4th at 760, 60
P.3d at 185, 128 Cal. Rptr. 2d at 786)--A thereby forces B to
continue with the sexual penetration. In John Z., 29 Cal. 4th at
759, 60 P. 3d at 185, 128 Cal. Rptr. 2d at 786, for example, the
California decision that inspired section 12-17(c) (720 ILCS
5/12-17(c) (West 2004)) (T. Bohn, Yes, Then No, Means No:
Current Issues, Trends, & Problems in Post-Penetration Rape, 25
N. Ill. U. L. Rev. 151, 164-65 (2004)), the defendant constrained
the victim to continue with sexual penetration, when she was on
top of him, by grabbing her hips and pulling her back down when
she tried to pull away. Then he rolled her over so he was on top
of her. John Z., 29 Cal. 4th at 759, 60 P.3d at 185, 128 Cal.
Rptr. 2d at 786. "'No,'" she said, "'I need to go home,'" but he
persisted in sexual intercourse for another minute or minute and
a half, all the while asking for more time. John Z., 29 Cal. 4th
at 760, 60 P.3d at 185, 128 Cal. Rptr. 2d at 786. The victim
testified: "'[H]e just stayed inside of me and kept like basi-
- 29 - cally forcing it on me.'" John Z., 29 Cal. 4th at 760, 60 P.3d
at 185, 128 Cal. Rptr. 2d at 786. In affirming the conviction,
the Supreme Court of California held: "[T]he offense of forcible
rape occurs when, during apparently consensual intercourse, the
victim expresses an objection and attempts to stop the act and
the defendant forcibly continues despite the objection." (Empha-
sis added.) John Z., 29 Cal. 4th at 760, 60 P.3d at 185, 128
Cal. Rptr. 2d at 786. She no doubt felt "forced" in both
positions--not only when the defendant grabbed her hips and
pulled her down but also when he was on top of her. One can, in
a manner of speaking, passively force someone to continue with
the sex act by using one's own bodily inertia to prevent the
partner from disengaging. This would be force beyond that
inherent to the sex act itself.
One may reasonably infer that R.H. pushed defendant
because disengagement was, for her, physically impossible until
defendant withdrew. Defendant withdrew when R.H. pushed her a
second time. If an aggravated criminal sexual assault happened
at all, it happened during the very short duration between the
first and second push, when defendant, by not moving, prevented
R.H. from immediately disengaging. Even though, subjectively,
R.H. no longer consented, her withdrawal of consent was ineffec-
tive until she communicated it to defendant in some objective
manner (see People v. Carlson, 278 Ill. App. 3d 515, 520, 663
- 30 - N.E.2d 32, 36 (1996)) so that a reasonable person in defendant's
circumstances would have understood that R.H. no longer consented
(see Kinney, 294 Ill. App. 3d at 908, 691 N.E.2d at 871).
Defendant used force on R.H. only if the first push operated as
an objective withdrawal of consent.
Looking at the evidence in a light most favorable to
the State, we conclude that no rational trier of fact could find,
beyond a reasonable doubt, that a reasonable person, in defen-
dant's circumstances, would have understood that initial push as
a withdrawal of consent. See People v. Schott, 145 Ill. 2d 188,
203, 582 N.E.2d 690, 697 (1991). According to a letter from
defendant that the State presented at trial, R.H. was capable of
talking ("I swear to you that I did not hear you say no").
R.H.'s excuse was that she did not want to wake the children by
screaming. Even if one credited that excuse, it would not solve
the problem of an uncommunicated withdrawal of consent. R.H.
could have said no--and, evidently, defendant expected her to say
no, or at least say something, if she wanted defendant to stop
the sexual penetration. This expectation seems reasonable. R.H.
did not say no or stop. Instead, she pushed defendant. The
problem is, people push one another during sexual congress. We
do not mean to suggest that a push can never signify nonconsent
or a withdrawal of consent. In fact, the second push here was
clearly made with enough force to both be distinguished from a
- 31 - caress and to effectively communicate the withdrawal of consent.
"'Force' and 'consent' simply do not have static meanings. The
significance of various factors--a cry for help, level of resis-
tance, attempt to escape--depend[s] on the circumstances of each
case." Kinney, 294 Ill. App. 3d at 909-10, 691 N.E.2d at 871
(Knecht, J., specially concurring). Under the circumstances of
this case, a single push to the shoulders, without more, cannot
serve as an objective communication of R.H.'s withdrawal of
consent.
III. CONCLUSION
For the foregoing reasons, we reverse the trial court's
judgment.
Reversed.
McCULLOUGH, J., concurs.
TURNER, J., dissents.
- 32 - JUSTICE TURNER, dissenting:
I respectfully dissent.
When a defendant challenges the sufficiency of the
evidence, the reviewing court does not retry the defendant.
People v. Janik, 127 Ill. 2d 390, 401-02, 537 N.E.2d 756, 761
(1989). The jury possessed the responsibility to choose between
competing versions of fact, assess the witnesses' credibility,
draw inferences from the evidence, and decide whether the evi-
dence as a whole ultimately proved defendant to be guilty of the
charged offense beyond a reasonable doubt. See Janik, 127 Ill.
2d at 401, 537 N.E.2d at 761; People v. Anderson, 325 Ill. App.
3d 624, 634, 759 N.E.2d 83, 92 (2001). To avoid intruding upon
the jury's prerogative as the finder of fact, we are to use a
- 33 - deferential standard of review. See Janik, 127 Ill. 2d at 401,
537 N.E.2d at 761. Thus, looking at all the evidence in a light
most favorable to the prosecution, we address whether any ratio-
nal trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Anderson, 325 Ill. App. 3d at
634, 759 N.E.2d at 92.
A rational trier of fact could have found (1) the first
push sufficiently informed defendant of R.H.'s withdrawal of
consent and (2) defendant did not immediately disengage. It is a
reasonable conclusion defendant wrote all of the letters follow-
ing the September 27, 2004, incident. In these letters, she
confesses wrongdoing, deplores the "scary side" of herself,
admits that she "get[s] mean sometimes," and asks R.H. if she is
going to "send [her] to jail." The jury could have reasonably
inferred defendant knew, from the start, at the very moment of
penetration, she was being "way to[o] rough" and that when R.H.
first pushed her (signifying her withdrawal of consent), defen-
dant already knew she did not consent to this violent manner of
penetration. Because someone had once done the same thing to
defendant (as she revealed in People's exhibit No. 2), defendant
knew she was inflicting excruciating pain upon R.H. and that the
first push meant "Stop!" Nevertheless, she continued ramming her
hand into R.H.'s vagina until R.H. succeeded in pushing her away.
Looking at the evidence in a light most favorable to the prosecu-
- 34 - tion, I conclude a rational trier of fact could have found the
elements of aggravated criminal sexual assault beyond a reason-
able doubt.
- 35 -