People v. Lloyd

ILLINOIS OFFICIAL REPORTS

Supreme Court

People v. Lloyd, 2013 IL 113510

Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. TERRY Court: LLOYD, Appellant.

Docket No. 113510

Filed April 18, 2013

Held Where a middle-aged defendant did not dispute that he sexually (Note: This syllabus penetrated a girl he knew was 13 years old, but was charged under a constitutes no part of statute requiring proof that he knew of her inability to understand the the opinion of the court nature of the act or give knowing consent (which historically has been but has been prepared construed to apply only to victims who are typically severely mentally by the Reporter of disabled, highly intoxicated, unconscious or asleep), his jury convictions Decisions for the were reversed where this was not proved. convenience of the reader.)

Decision Under Appeal from the Appellate Court for the Fourth District; heard in that Review court on appeal from the Circuit Court of McLean County, the Hon.

Charles G. Reynard, Judge, presiding.

Judgment Appellate court judgment affirmed in part and reversed in part.

Circuit court judgment reversed. Convictions and sentences vacated.

Counsel on Michael J. Pelletier, State Appellate Defender, Karen Munoz, Deputy Appeal Defender, and Ryan R. Wilson, Assistant Appellate Defender, of the

Office of the State Appellate Defender, of Springfield, for appellant.

Lisa Madigan, Attorney General, of Springfield, and Ronald Dozier, State’s Attorney, of Bloomington (Michael A. Scodro, Solicitor General, and Michael M. Glick and Gopi Kashyap, Assistant Attorneys General, of Chicago, of counsel), for the People.

Justices JUSTICE THEIS delivered the judgment of the court, with opinion.

Justices Freeman, Garman, and Burke concurred in the judgment and opinion.

Justice Thomas specially concurred, with opinion, joined by Chief Justice Kilbride and Justice Karmeier.

OPINION

¶1 Following a jury trial in the circuit court of McLean County, defendant, Terry Lloyd, was

convicted of seven counts of criminal sexual assault under section 12-13(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-13(a)(2) (West 2008 .1 Defendant appealed contending that the State failed to present sufficient evidence to support his convictions. A divided appellate court rejected this claim, affirmed six of his convictions, and reversed and remanded the remaining conviction for a new trial on other grounds. 2011 IL App (4th) 100094, ¶¶ 37, 45. For the reasons that follow, we affirm in part, and reverse in part, the judgment of the appellate court and conclude that all seven of defendant’s convictions must be reversed. The evidence of the victim’s age, and defendant’s knowledge of that age, alone, was insufficient to prove that defendant knew the victim was unable to understand the nature of the sex acts or give knowing consent as required to sustain his convictions as charged.

¶2 BACKGROUND ¶3 On January 9, 2009, the State charged defendant with seven counts of criminal sexual

assault pursuant to section 12-13(a)(2) of the Code. The indictments alleged that between September 1, 2008, and January 7, 2009, defendant committed seven acts of vaginal penetration, with his hand or mouth, upon P.V., who was a minor under the age of 17. It was further alleged that at the time of the acts, defendant knew that P.V. was unable to understand

This provision was renumbered as section 11-1.20(a) by Pub. Act 96-1551 (eff. July 1, 2011); see /11-1.20(a) (West 2010).

the nature of the sex acts or give knowing consent to them.

¶4 The following evidence was adduced at defendant’s jury trial. P.V. was 13 years old at

the time of the incidents and lived with her mother, older sister, and her aunt, Brenda, among

other relatives. Defendant had been a family friend whom P.V. had known almost her entire

life. Brenda had previously dated defendant and, at the time of trial, was married to

defendant’s half-brother.

¶5 P.V. testified that when she was younger, she had enjoyed spending time with defendant.

They would listen to music together, make jokes, and do “normal stuff.” Around September

2008, defendant hugged P.V. in a way that made her feel uncomfortable. He lifted her up in

the air and when bringing her back down slid his hand across her buttocks. Defendant then

asked her for another hug and when she complied, he again lifted her up and touched her

buttocks for a few seconds.

¶6 Approximately one or two weeks later, P.V. returned home with her mother following

a basketball game. She noticed defendant’s van parked in the driveway and that defendant

and her aunt, Brenda, were inside the van. She entered the vehicle and sat behind her aunt,

who was in the front passenger seat. P.V. was wearing a basketball jersey tucked into her

shorts and had sweatpants over the shorts. At some point while defendant and Brenda were

talking, defendant reached back from the driver’s seat, which was reclined, and placed his

hand on her knee. He rubbed her knee and then slowly moved his hand up her leg two or

three inches. Defendant later placed his hand in P.V.’s sweatpants and began rubbing her

“private” over her shorts. She testified that she was kind of scared and felt weird. Brenda

subsequently got out of the van. Defendant then told P.V. that she was beautiful and sexy.

She felt awkward and laughed because she thought he was joking. Defendant then rubbed

her thigh and pulled her sweatpants down a little. At defendant’s request, she untucked her

basketball jersey and he rubbed her “private part” on top of her underwear. Defendant then

placed his hand in her underwear, touched the part of her private area that “has the hole,” and

moved his finger up and down in that area. When P.V. saw a light go on in the house, she

told defendant that someone was coming. Defendant stopped touching her, and she put her

pants back on.

¶7 A second incident occurred approximately one or two weeks later when defendant was

again visiting P.V.’s aunt. P.V. got into defendant’s van to listen to music, and he joined her

a few minutes later. He sat in the driver’s seat and asked her whether she had enjoyed herself

the last time. He told her that she was beautiful and that he wanted her to be “his girl.” He

began touching her leg and then her “private” in a circular motion over her clothes.

Defendant told her that she had too much clothing on so she walked into the house and

changed. She returned to the van in sweatpants, an undershirt, and a sweatshirt. P.V. changed

because she thought that defendant wanted to do the same thing that he did the last time.

Defendant did not tell her what to take off. P.V. testified that she “already kinda knew what

[she] was supposed to do.”

¶8 After she returned to the van, defendant told her to sit in the back passenger-side seat.

P.V. complied and she pulled down her sweatpants. Defendant began rubbing her “private

part” on top of her underwear. He then placed his hand inside her underwear and “put his fingers inside of [her] private.” Defendant asked P.V. if he could “taste it.” P.V. initially said

“I don’t know,” but eventually agreed to his request. Defendant then placed his tongue on P.V.’s vagina. Before P.V. got out of the van, defendant told her not to tell anyone and that “he would get like, 45 to life years.” She promised not to tell anyone. When asked what made her decide to go back to the van after changing her clothes, P.V. responded that although she was scared, she thought that was what she was supposed to do. She further testified that her older sister and her sister’s friends had talked about the “stuff that they ha[d] done.” P.V. testified that she thought that she was supposed to do the same thing.

¶9 A third incident occurred about two weeks later when defendant was visiting P.V.’s

mother and Brenda. P.V. got into defendant’s van again to listen to music. Defendant walked out of the house shortly thereafter and got into the van. After some small talk, he asked her if she wanted to do it again. She initially said no, but after defendant asked her a third time, almost begging, she agreed. She told him that it was going to be the last time. P.V. testified that she felt stupid for not “sticking with what [she] was saying.” Defendant began rubbing her leg and she helped defendant pull down her pants. Defendant inserted his fingers into her vagina and performed oral sex for approximately five minutes. She testified that she hoped something would happen or that someone would come out. Defendant then asked her if she had ever “kissed a dick before.” She responded that she had not. Defendant asked her if she wanted to try, and she declined. She pulled her pants up and got out of the van. Defendant again asked her not to tell anyone and told her that she makes him nervous. She agreed not to say anything because she did not want to get anyone in trouble. Later that evening, defendant called her for the first time and asked her why she was acting weird around him. She responded that she did not know and ended the conversation.

¶ 10 A fourth incident occurred less than a week later when Brenda told defendant to take P.V.

to the gas station to purchase potato chips. P.V. got into defendant’s van and thought the two of them were headed to one of the nearby stations. Instead, defendant drove for what “felt like 30 minutes” and parked the van in a secluded location. He then instructed P.V. to get in the back of the van. Once there, he pulled down her pants and began rubbing her “private” over her underwear. He then pulled down her underwear and began rubbing her vagina. He inserted his fingers into her vagina and stated that it seemed like she could take “good dick” or “big dick.” Defendant twice asked her if he could put his “private” inside her, and she told him that he could not. After defendant performed oral sex for about 10 minutes, P.V. told him that her aunt would wonder where they had gone. She told defendant that she wanted to stop, and he complied. During the subsequent drive to the gas station, defendant asked her not to tell anyone. A few days later, P.V. decided to tell her older sister about what defendant had done, and then P.V. told her mother.

¶ 11 On cross-examination, P.V. testified that she had received education on “good touches”

and “bad touches” since sixth grade. P.V. testified that she did not report defendant’s behavior earlier because she wanted him to do what he did the first time and thought it was supposed to happen that way, based upon what her friends had told her. She also did not want to damage her family’s relationship with defendant. She further testified that she “wanted to have the experience, just not with [defendant].”

¶ 12 Brenda testified that she had known defendant since 1992 and had dated him at one time.

Between September 2008 and January 2009, defendant visited her house approximately once

a week. She recalled some occasions when P.V. and defendant were alone together, including

a time when defendant and P.V. went to a store and were gone longer than expected.

¶ 13 Michael Burns, a detective with the Bloomington Police department, testified that he

interviewed defendant after meeting with P.V. Burns learned during the interview that

defendant was born on February 28, 1966. Defendant admitted to Burns that he listened to

music with P.V. in the van, but denied ever being alone with her in the van or anywhere else.

He also denied ever calling P.V. on her cell phone. Telephone records were admitted into

evidence at trial which indicated that someone using defendant’s home phone had called

P.V.’s cell phone on two occasions.

¶ 14 Defendant did not present any evidence at trial.

¶ 15 Consistent with Illinois Pattern Jury Instructions, Criminal, No. 11.56 (4th ed. 2000)

(hereinafter, IPI Criminal 4th), the jury was instructed that to sustain the charge of criminal

sexual assault the State must prove, in pertinent part, the following: “First: That the

defendant committed an act of sexual penetration upon [P.V.]; and Second: That the

defendant knew that [P.V.] was unable to understand the nature of the act or give knowing

consent to the act. ***.”

¶ 16 The jury convicted defendant of all seven counts of criminal sexual assault. The trial

court subsequently sentenced him to an aggregate term of 44 years’ imprisonment.

¶ 17 On appeal, defendant argued that his convictions must be reversed because the State

failed to present sufficient evidence to establish that he knew P.V. was unable to understand

the nature of the charged acts or give knowing consent to those acts, as required to sustain

his convictions under section 12-13(a)(2) of the Code. 2011 IL App (4th) 100094, ¶ 27. The

appellate court, over a dissent, affirmed his convictions on six counts of criminal sexual

assault. Id. ¶ 47. The appellate court reversed his conviction on the one remaining count and

remanded for a new trial after concluding that a jury instruction was incomplete and could

have influenced the jury’s determination on that count alone. 2011 IL App (4th) 100094,

¶ 45. The appellate majority ultimately held that “section 12-13(a)(2) requires the State to

prove the defendant knew the person was unable to consent, not simply the victim’s age.”

Id. ¶ 33. The appellate majority also concluded the legislature did not intend to exclude the

inability to consent based on age as a means of showing defendant committed criminal

sexual assault. Id. ¶ 33. The appellate majority emphasized that “[c]ontrary to any suggestion

by the State, the mere fact P.V. was 13 alone is insufficient to prove ‘the accused knew that

the victim was unable to understand the nature of the act or was unable to give knowing

consent.’ ” Id. ¶ 34 (quoting /12-13(a)(2) (West 2008 .

¶ 18 The appellate majority concluded, however, that the State presented sufficient evidence

to prove defendant knew P.V. was unable to consent because he had known the victim her

entire life, had the same birthdate as hers, and, therefore, would have known that she was in

her early teens, which was “well below the age of consent.” Id. The appellate majority also

relied upon evidence that defendant told P.V. after the second incident that she could not tell

anyone because he would get “45 to life” and told her again after the third and fourth

incidents that she could not tell anyone. Id. ¶ 35. The appellate majority found such actions indicate that defendant had knowledge she could not consent to the activities in which they were engaging. Id. The appellate majority also noted that the jury had the opportunity to

assess P.V.’s personal characteristics, including her maturity level, physical characteristics,

and emotional and mental strength on the stand. Id. ¶ 36.

¶ 19 Justice Steigmann dissented from the majority opinion because he concluded that the

court was obligated to reverse outright all seven of defendant’s convictions. Id. ¶ 50

(Steigmann, J., specially concurring in part and dissenting in part). He wrote that although

defendant engaged in felonious criminal conduct, the crimes charged against him were not

the crimes committed. Id. He noted that no published opinion had done what the appellate

majority did here, which was to affirm a conviction under section 12-13(a)(2) based solely

upon the victim’s legal condition—her age—and not based upon “her acuity” in any way. Id.

¶ 77. He emphasized that the victims in other cases involving section 12-13(a)(2) were

unable to understand the nature of the sexual acts or unable to consent because of their

mental condition. Id. ¶ 57. The victims were typically either severely mentally disabled or

in such a drunken state as to be practically comatose. Id. He found the appellate majority’s

construction of section 12-13(a)(2) inconsistent with how the Illinois legislature has defined

sex offenses in the Criminal Code. Id. ¶ 79. He concluded that “[o]nce the State’s claim is

rejected—that based solely on P.V.’s age, she was unable to understand the nature of the act

or unable to give knowing consent—this record is totally bereft of any evidence to sustain

defendant’s convictions.” Id. ¶ 94.

¶ 20 This court granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,

2010).

¶ 21 ANALYSIS ¶ 22 I ¶ 23 At issue is section 12-13(a) of the Code, which provides:

“(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;

or

(2) commits an act of sexual penetration and the accused knew that the victim

was unable to understand the nature of the act or was unable to give knowing consent; or

(3) commits an act of sexual penetration with a victim who was under 18

years of age when the act was committed and the accused was a family member; or

(4) commits an act of sexual penetration with a victim who was at least 13

years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority or supervision in relation to the victim.” (Emphasis added.) /12-13(a) (West 2008).

Therefore, pursuant to section 12-13(a)(2), under which defendant was charged, the State was required to prove that defendant committed an act of sexual penetration with P.V. and that he knew either: (1) she was unable to understand the nature of the act; or (2) she was

unable to give knowing consent.

¶ 24 Defendant does not dispute that the State met its burden of proof concerning the element

of sexual penetration. Instead, he argues the State failed to show that he knew of some fact,

other than P.V.’s age, which prevented her from understanding the nature of the charged acts,

or from giving knowing consent to them. Defendant contends that in the absence of such

evidence his convictions must be reversed. His challenge requires us to consider the proper

construction of the terms “unable to understand the nature of the act” and “unable to give

knowing consent.”

¶ 25 It is well settled that issues of statutory construction are questions of law subject to de

novo review. People v. Gutman, 2011 IL 110338, ¶ 12. When construing a statute, this

court’s primary objective is to ascertain and give effect to the legislature’s intent, keeping

in mind that the best and most reliable indicator of that intent is the statutory language itself,

given its plain and ordinary meaning. Id. In determining the plain meaning of the statute, we

consider the subject the statute addresses and the legislative purpose in enacting it. People

v. Young, 2011 IL 111886, ¶ 11. This court has repeatedly held that statutes should be read

as a whole and construed so that no part is rendered meaningless or superfluous. E.g., People

v. Edwards, 2012 IL 111711, ¶ 26. In doing so, we may consider the statute’s context,

reading the provision at issue in light of the entire section in which it appears, and the Act

of which that section is a part. People v. Jones, 214 Ill. 2d 187, 193 (2005); In re Marriage

of Mathis, 2012 IL 113496, ¶ 20.

¶ 26 In order to understand the issue before us, it is necessary to consider the statutory

framework defining sex offenses in Illinois.

¶ 27 This state, like every other state in the country, recognizes that a person must reach a

certain age to be able to consent to sexual activity. Michelle Oberman, Turning Girls Into

Women: Re-evaluating Modern Statutory Rape Law, 8 DePaul J. Health Care L. 109, 119

(2004). The age of consent is fixed by the legislature and reflects a judgment about the

maturity of minors in matters of sexual conduct. Beul v. ASSE International, Inc., 233 F.3d

441, 450 (7th Cir. 2000). “Although juveniles may factually consent to intercourse, the law

*** treats them as incapable of giving legal consent.” Russell L. Christopher & Kathryn H.

Christopher, The Paradox of Statutory Rape, 87 Ind. L.J. 505, 515 (2012). Age of consent

laws primarily serve to protect juveniles from the exploitation of older, more experienced

sexual predators, and also serve to protect juveniles from themselves because they lack a

sufficient understanding and appreciation of the risks and harms of intercourse. Id. at 515-16.

¶ 28 Consistent with this reasoning, our legislature has adopted certain age-based sex offenses

which specify the victim’s age, the age of the accused, and the type of sexual contact that

must be proven. The following serve as three examples of such age-based sex offenses found

in our Code. Section 12-14.1(a) provides that the accused commits predatory criminal sexual

assault of a child if he or she commits an act of sexual penetration with a victim who was

under 13 years of age, and the accused was 17 years of age or over. /12-14.1(a)(1)

(West 2008). Section 12-16(d) provides that the accused commits aggravated criminal sexual abuse if he or she commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age, but under 17 years of age, and the accused was at least 5 years

older than the victim. /12-16(d) (West 2008). Section 12-15(c) provides that the

accused commits criminal sexual abuse if he or she commits an act of sexual penetration or

sexual conduct with a victim who was at least 13 years of age, but under 17 years of age, and

the accused was less than 5 years older than the victim. /12-15(c) (West 2008).

¶ 29 The penalties for violating these aged-based statutes fluctuate significantly based upon

the offense. Predatory criminal sexual assault of a child ( /12-14.1(a)(1) (West

2008 is a Class X felony ( /12-14.1(b)(1) (West 2008 , while aggravated

criminal sexual abuse ( /12-16(d) (West 2008 is a Class 2 felony (720 ILCS

5/12-16(g) (West 2008 , and criminal sexual abuse ( /12-15(c) (West 2008 is

a Class A misdemeanor ( /12-15(d) (West 2008 . A violation of the criminal

sexual assault provision under which defendant was convicted ( /12-13(a)(2)

(West 2008 constitutes a Class 1 felony ( /12-13(b)(1) (West 2008 . We note

that under the criminal sexual abuse and aggravated criminal sexual abuse provisions

highlighted above, the State must prove either sexual penetration or sexual conduct with a

minor, which contradicts the State’s argument that under the legislative scheme, sexual

penetration of a minor is punished more severely than sexual conduct.

¶ 30 As illustrated by the above offenses, the prescribed age of consent in Illinois is 17,

although in a few instances where the accused is a family member or a person in a position

of trust or authority, the age of consent is 18 (e.g., /12-13(a)(3), (4), 12-16(b)

(West 2008 . See People v. Hollins, 2012 IL 112754, ¶¶ 17, 25. Although a mistake by the

accused as to the age of the victim may be raised under certain circumstances as a defense,2

the legislature has determined in the age-based statutes that the willingness of the minor

victim to engage in sexual conduct, or even solicit the act, is irrelevant and thus not a

defense.

¶ 31 The State urges us to conclude that the accused’s knowledge of a victim’s status as a

minor alone is sufficient under section 12-13(a)(2) to prove that he or she knew the victim

was “unable to understand the nature of the act” or “unable to give knowing consent”

because a minor, such as the 13-year-old victim in this case, lacks the legal power to consent

to an act of sexual penetration in Illinois.

¶ 32 For several reasons, the State’s suggested construction of section 12-13(a)(2) is flawed,

unworkable, and inconsistent with the legislative structure defining sex offenses in Illinois.

¶ 33 First, the proper inquiry in a prosecution under section 12-13(a)(2) must be on the

defendant’s particular knowledge of a victim’s ability to understand the act or give knowing

consent and must be determined by examining the unique facts of each case. This

determination cannot be a result of the victim’s legal age, alone, because under our statutory

framework all 13-year-olds such as the minor victim here are viewed identically as being

See /12-17(b) (West 2008) (where it shall be a defense under certain subsections of the criminal sexual abuse and aggravated criminal sexual abuse provisions that the accused reasonably believed the person to be 17 years of age or over).

unable to consent to sexual conduct. The State asserts that there is no specific limiting

language in section 12-13(a)(2) that excludes prosecution based solely upon a defendant’s

knowledge of a victim’s young age. Given our statutory framework, however, such limiting

language is completely unnecessary.

¶ 34 The State’s construction would place before the trier of fact the question of whether a

particular defendant knew that a minor victim may not legally give knowing consent to an

act of sexual penetration. In other words, the trier of fact would decide whether a defendant

knew the victim was under 17 and that such a minor could not legally consent to an act of

sexual penetration. Where, as in this case, the defendant knew the victim was a minor, the

only defense under the State’s interpretation would apparently be the accused’s ignorance

of the law. Of course, ignorance of the law is no defense. Hollins, 2012 IL 112754, ¶ 34.

Thus, the State’s interpretation would lead to an absurd result.

¶ 35 The State also fails to recognize that under the manner it prosecuted defendant in this

case, there would be nothing to prevent a jury from acquitting a defendant if it concludes that

he or she did not know the minor victim was unable to understand the nature of the act, or

give knowing consent, because it found the victim to be a willing participant or unusually

knowledgeable or sophisticated about sexual activity, despite the victim’s young age. The

Code instructs us, however, that it is of no concern how advanced, knowledgeable, or willing

a particular minor might be about sexual activity because he or she is incapable of giving

legal consent. The legislature has set the prescribed age of consent in this state to protect

minors under that age because it has determined that they lack the maturity and judgment to

give consent to sexual activity. We refuse to interpret the Code in a manner that would derail

that determination and could harm the very minors that our legislature has intended to

protect.

¶ 36 Second, the State’s construction of the Code has the unacceptable consequence, as

occurred in this case, of requiring a minor victim to answer questions at trial as to his or her

motivation or willingness to engage in sexual activity with the accused, as well as questions

about his or her sex education and knowledge about “good touches” and “bad touches.” A

minor victim such as P.V. should not be subjected to such questioning because, as we just

recognized, it is of no concern how knowledgeable or willing such a minor might be about

sexual activity, because he or she is incapable of giving legal consent.

¶ 37 Third, the State’s construction would render virtually superfluous other sections of the

Code, including two other subsections of the criminal sexual assault provision. As cited

above, section 12-13(a)(3) ( /12-13(a)(3) (West 2008 provides that the accused

commits criminal sexual assault when the accused commits an act of sexual penetration with

a victim who was under 18 years of age when the act was committed and the accused was

a family member. Thereafter, section 12-13(a)(4) ( /12-13(a)(4) (West 2008 provides that the accused commits criminal sexual assault if he or she commits an act of

sexual penetration with a victim who was at least 13 years of age, but under 18 years of age

when the act was committed, and the accused was 17 years of age or over and held a position

of trust, authority or supervision in relation to the victim. Both of these subsections would

be almost entirely unnecessary if we were to follow the State’s construction because evidence

of the accused’s knowledge of a victim’s legal status as a minor, along with proof of sexual penetration, would be enough to convict under section 12-13(a)(2). These two subsections also highlight that when the legislature wants to use the age of the victim as an element of

the offense, it knows exactly how to do so. Of course, the legislature omitted any reference

to the age of the victim in the subsection of the criminal sexual assault provision under which

defendant was convicted.

¶ 38 Fourth, the State’s construction would cause havoc to our statutory scheme by allowing,

for example, the State to prosecute under the criminal sexual assault provision a 17-year-old

girl who has sexual intercourse with her willing 16-year-old boyfriend, assuming that the

State could prove, as it most certainly could, that she knew his age. This offense would

constitute a Class 1 felony ( /12-13(b)(1) (West 2008 even though the legislature

has determined elsewhere in the Code that such conduct would fall within the criminal sexual

abuse provision ( /12-15(c) (West 2008 , a Class A misdemeanor (720 ILCS

5/12-15(d) (West 2008 . Our legislature could not have intended such a result that would

require a court to impose a sentence of years (730 ILCS 5/5-4.5-30 (West 2008 for conduct

it has specifically determined elsewhere in the Code constitutes a misdemeanor.

¶ 39 Finally, the criminal sexual assault provision under which defendant was convicted was

added to the Code in 1984, and the language contained therein has never been amended.

Compare Ill. Rev. Stat. 1985, ch. 38, ¶ 12-13(a)(2), with /12-13(a)(2) (West

2008). Our research reveals that since this provision was enacted there has not been one

reported case, prior to the appellate court decision here, in which the accused was prosecuted

under section 12-13(a)(2) based solely upon evidence of his or her knowledge of the victim’s

legal status as a minor. The victims in previous cases prosecuted under this subsection have

been found to be unable to understand the nature of the act or unable to give knowing

consent because they were typically severely mentally disabled, highly intoxicated,

unconscious, or asleep. See, e.g., People v. Vaughn, 2011 IL App (1st) 092834, ¶¶ 38-39

(holding the evidence was sufficient to support a finding that the victim was unable to

understand the nature of the acts or give knowing consent where on two separate occasions

she was awakened to find her father in the midst of an unbroken series of sexual assaults);

People v. Fisher, 281 Ill. App. 3d 395, 397-403 (1996) (holding the evidence was sufficient

to support a finding that the victim was unable to give knowing consent where she consumed

large quantities of alcohol during the evening of the assault, and evidence showed that she

was unconscious prior to and during part of the sex act); People v. Whitten, 269 Ill. App. 3d

1037, 1039-42 (1995) (holding the evidence was sufficient to support a finding that the

victim was unable to give knowing consent where the defendant was in a position of

authority over the victim who was developmentally disabled with an IQ of 54); People v.

Weiss, 263 Ill. App. 3d 725, 732-33 (1994) (holding the evidence was sufficient to support

a finding that the victim was unable to understand the nature of the sexual acts or consent to

them because he was severely mentally disabled and functioned at the level of a four-year-old

child); People v. Maloney, 201 Ill. App. 3d 599, 611 (1990) (holding the evidence was

sufficient to support a finding that the victim was unable to understand the nature of the

sexual acts or give knowing consent where at the time of the incident the victim had a mental

age of seven, and the defendant had ample opportunity to assess the victim’s mental capacity

prior to the assault); see generally People v. Brown, 2012 IL App (2d) 110303, ¶ 52 (recognizing that cases involving section 12-13(a)(2) of the Code have concerned allegations that the victims were mentally disabled, asleep, unconscious, drugged, or intoxicated). The

cases relied upon by the State in its brief do not inform our determination, as none concern

a prosecution under section 12-13(a)(2) where only evidence of the victim’s age, and the

defendant’s knowledge of that age, was used to support the conviction.

¶ 40 For all these reasons, we hold that in order to meet its burden under section 12-13(a)(2),

the State is required to show that the defendant knew that some fact prevented the victim’s

ability to understand the act, or give knowing consent to it, other than evidence that he knew

of the victim’s young age. As the case law illustrates, the State has successfully met this

burden in the past by showing the accused knew the victim’s state of mind prevented him or

her from understanding the nature of the act, or from giving knowing consent, because the

accused knew the victim was severely mentally disabled, intoxicated, asleep, or unconscious

at the time of the act, and the evidence was not based solely on his or her knowledge of the

victim’s status as a minor. See, e.g., Vaughn, 2011 IL App (1st) 092834, ¶ 39. Having

concluded that in order to sustain defendant’s convictions under section 12-13(a)(2), there

must be evidence other than P.V.’s age, and defendant’s knowledge of that age, we consider

whether the evidence was sufficient to support his convictions under the facts of this case.

¶ 41 II ¶ 42 When considering a challenge to the sufficiency of the evidence in a criminal case, our

function is not to retry the defendant. People v. Sutherland, 223 Ill. 2d 187, 242 (2006).

Rather, our inquiry is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. People v. Davison, 233 Ill. 2d 30, 43 (2009). This means that we

must allow all reasonable inferences from the record in favor of the prosecution. People v.

Cunningham, 212 Ill. 2d 274, 280 (2004). “We will not reverse a conviction unless the

evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt

of defendant’s guilt.” People v. Collins, 214 Ill. 2d 206, 217 (2005).

¶ 43 The State asserts that given the totality of the evidence in this case, even if P.V. was not

“automatically” unable to understand the nature of the acts or give knowing consent based

upon her age, a rational juror could have concluded that defendant knew she could do

neither. The State argues that the evidence demonstrated that defendant knew that whatever

consent P.V. gave was unknowing and invalid because the evidence indicated that she was

immature, confused, and provided ambivalent responses to his advances. The State suggests

that P.V.’s descriptions of her encounters with defendant also highlight her immaturity in that

she felt uncomfortable using terms such as vagina or penis. The State also relies upon

evidence that defendant knew the acts were illegal.

¶ 44 The record before us is completely devoid of any evidence to support a determination that

defendant knew the victim was unable to understand the nature of the acts or give knowing

consent to them to support his convictions under section 12-13(a)(2). The State relies upon

evidence that defendant had known P.V. her entire life and would have known that she was

in her early teens. The testimony relied upon by the State, including P.V.’s choice of words at trial, was simply evidence of her young age, and defendant’s knowledge of that age which, without more, was insufficient to support his convictions for the offenses as charged. As we

have already determined, under our statutory framework, all 13-year-olds such as P.V. are

viewed identically as being unable to consent to sexual conduct. Therefore, it makes no

difference whether she was a mature or immature 13-year-old because she was incapable of

giving legal consent to sexual conduct. The State also cites evidence that defendant told P.V.

that she could not tell anyone about the encounters because, in essence, he could go to prison,

and that she made him nervous because he was afraid that she was going to tell someone.

Although defendant’s statements indicate that he was likely aware that he should not be

engaging in sexual activity with P.V., a minor, and that his conduct was generally against the

law, it does not establish that he knew P.V. was unable to understand the nature of the acts,

or give knowing consent to the sexual activity for any reason other than her age. For these

reasons, we must reverse all seven counts of defendant’s convictions.

¶ 45 The State presented sufficient evidence from which a rational trier of fact could have

concluded that defendant committed aggravated criminal sexual abuse. See /12-

16(d) (West 2008). Unfortunately, the State chose not to charge him with that offense and,

instead, decided to go forward only on the criminal sexual assault charges. In evaluating

defendant’s challenge to the sufficiency of the evidence under the circumstances in this case,

we can only consider the evidence regarding the actual charges the State chose to bring

against him, and not the fact that he may be guilty of the uncharged offense of aggravated

criminal sexual abuse. In contrast to aggravated criminal sexual abuse, defendant’s

convictions for criminal sexual assault did not require, inter alia, a showing that he was at

least five years older than the victim. Id. Therefore, the jury’s verdict in this case did not

include a finding that all of the elements of aggravated criminal sexual abuse had been

proven beyond a reasonable doubt. Of course, we cannot substitute a conviction where the

verdict on an uncharged offense would require a finding of guilt on an additional element

that was not encompassed by any of the elements of the offense considered by the jury “no

matter how inescapable the findings to support the verdict might be.” Sullivan v. Louisiana,

508 U.S. 275, 279-80 (1993) (“to hypothesize a guilty verdict that was never in fact

rendered—no matter how inescapable the findings to support the verdict might be—would

violate the jury-trial guarantee”).

¶ 46 We reiterate that the criminal sexual assault provision under which defendant was

convicted has existed in Illinois for close to 30 years, and there is no prior reported case in

which a defendant was prosecuted under section 12-13(a)(2) based solely on the young age

of the victim. Due to the significant consequences of the State’s charging decision in this

case, we stress the importance of the State carefully considering the offenses that it chooses

to charge and prosecute in the future. We also find it more than unfortunate that the State

chose to prosecute this case in a manner that required the minor victim, who was 14 years

old at the time of trial, to answer questions as to her motivation or willingness to engage in

sexual activity with defendant and about her sexual education. P.V. should not have been

subjected to such questioning because our legislature, in protecting children from adults who

prey upon their vulnerabilities, has determined that such considerations are entirely

irrelevant.

¶ 47 CONCLUSION ¶ 48 For the foregoing reasons, we affirm in part and reverse in part the appellate court

judgment and reverse the judgment of the circuit court. We reverse defendant’s convictions on all seven counts of criminal sexual assault and vacate the sentences.

¶ 49 Appellate court judgment affirmed in part and reversed in part. ¶ 50 Circuit court judgment reversed.

¶ 51 Convictions and sentences vacated.

¶ 52 JUSTICE THOMAS, specially concurring:

¶ 53 I agree with Justice Theis’s conclusion in her lead opinion that proof of the young age

of the victim, standing alone, is not sufficient to prove a violation of section 12-13(a)(2) of

the Code ( /12-13(a)(2) (West 2008 . I also agree that the evidence presented at

trial was not sufficient to prove the crime charged under the specific facts of this case. I

disagree, however, with portions of Justice Theis’s reasoning in reaching those results.

Accordingly, I offer the following observations.

¶ 54 In this case, the State raised alternative arguments. First, the State maintained that even

if the jury heard evidence proving only the victim’s young age and defendant’s knowledge

of that age, then under the plain language of section 12-13(a)(2), these would be sufficient

facts to prove defendant knew the victim was unable to understand the nature of the acts or

give knowing consent. Second, the State argued that regardless of whether a 13-year-old is

“automatically ‘unable to understand the nature of the acts’ or ‘give knowing consent,’ given

the totality of the evidence in this case, a rational jury could have found beyond a reasonable

doubt that [the victim] was unable to do either.” I interpret the State’s argument to mean (1)

that a minor cannot consent to sexual activity as a matter of law and therefore if defendant

is aware of the victim’s young age, defendant is guilty as a matter of law of violating section

12-13(a)(2), and (2) that even if proof of young age alone is not sufficient to prove the crime

as a matter of law, the victim’s age, along with her maturity level, can be considered along

with other facts and circumstances to prove the crime and that under the totality of the

circumstances presented in this case, defendant was proven guilty. I believe that the State is

partially correct on its second point. That is, the victim’s young age should be one factor that

can be considered along with her maturity level and the other facts and circumstances to

prove whether defendant knew that the victim was unable to understand the nature of the act

or to give knowing consent. In this case, however, the victim’s maturity level, along with the

other facts and circumstances, only showed that she understood the nature of the acts and

factually consented to them.

¶ 55 I agree with Justice Theis’s holding that “in order to meet its burden under section 12-

13(a)(2), the State is required to show that the defendant knew that some fact prevented the

victim’s ability to understand the act, or give knowing consent to it, other than evidence that

he knew of the victim’s young age.” Supra ¶ 40. I would find, however, that knowledge of

the victim’s especially young age (here just 13), combined with evidence that shows the defendant’s knowledge that the victim was especially immature or unknowledgeable about sexual matters, might be sufficient in the appropriate case to support a conviction under

section 12-13(a)(2).

¶ 56 Justice Theis, on the other hand, states that it is of “no concern” whether the minor victim

was immature or unknowledgeable about sexual activity because minors cannot consent in

the first place to such sexual activity because, under section 12-16(d) of the Code (720 ILCS

5/12-16(d) (West 2008 , defendant’s conduct was a crime3 and that to allow prosecution

under section 12-13(a)(2) would somehow “derail” the legislative determination that minors

cannot consent. See supra ¶¶ 35-36. Justice Theis also maintains that questioning minor

victims about their sexual knowledge and activity in order to obtain convictions against the

perpetrators of crimes under section 12-13(a)(2) is an “unacceptable consequence.” Supra

¶ 36. In the end, Justice Theis ends up significantly narrowing the language of the statute by

rewriting it so that henceforth it can only apply to victims who are asleep, comatose because

of drugs or alcohol or who are so mentally deficient that they are equivalent to a very small

child. Supra ¶¶ 39-40. There are a number of problems with this judicial gloss placed on the

statute.

¶ 57 First, the statutory language, which is the best indicator of legislative intent, contains no

such restriction. Instead, section 12-13(a)(2) allows the State to proceed on two different

theories: (1) where the defendant knows that the victim is unable to understand the nature

of the act, or (2) where the defendant knows that the victim is unable to give knowing

consent. /12-13(a)(2) (West 2008). Our appellate court has said in regard to the

first theory—“unable to understand the nature of the act”—that “merely demonstrating ‘the

victim understood the physical nature of sexual relations is not sufficient to establish that the

victim comprehended the social and personal costs involved.’ ” People v. Vaughn, 2011 IL

App (1st) 092834, ¶ 38 (quoting People v. Blake, 287 Ill. App. 3d 487, 493 (1997 .

¶ 58 Vaughn upheld the defendant’s conviction based on the theory that the victim was unable

to understand the nature of the act, relying on the victim’s young age of 14 as one factor,

even though there was no indication that she was mentally impaired, stating as follows: “We

recognize that this theory of liability is often raised where the victim had a mental

impairment; however, we are reminded that the trial court assessed the victim during her

testimony and concluded that she was unable to understand the nature of the sexual acts.”

(Emphasis added.) Vaughn, 2011 IL App (1st) 092834, ¶ 38. Vaughn then concluded that the

“[d]efendant has not demonstrated that, when viewed in a light most favorable to the State,

the evidence was so unreasonable, improbable, or unsatisfactory to raise a reasonable doubt

as to his guilt that [the victim] was unable to understand the nature of the sexual acts.” Id.

¶ 59 The lead opinion lumps Vaughn into a category of cases that have applied section 12-

13(a)(2) only where the victim was either mentally disabled, highly intoxicated, unconscious

or asleep. See supra ¶ 39. But it is clear that in addressing the theory of “unable to

Section 12-16(d) provides that “[t]he accused commits aggravated criminal sexual abuse if he or she commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was at least 5 years older than the victim.”

understand the nature of the sex acts,” Vaughn did not rely upon any of the categories

suggested by the lead opinion in the instant case.4 Rather, Vaughn simply noted the victim’s young age of 14, that the trier of fact had an opportunity to assess her testimony, and that her testimony, which the appellate court quoted (and which does not refer to any of the four categories suggested by the lead opinion here), was not so unsatisfactory that it raised a reasonable doubt as to the defendant’s guilt in relation to the victim’s inability to understand the nature of the sex acts.

¶ 60 In Blake, Justice Theis herself wrote the opinion of the appellate court that reached the

same result as Vaughn on similar facts. Blake, 287 Ill. App. 3d at 488. There, Justice Theis specifically noted in her analysis reviewing the evidence presented that the victim was 13 years old and the defendant was 30 years old, thus strongly suggesting that the young age of the victim is one factor that may be taken into account in determining whether the victim understood the nature of the act. Id. at 493. In Blake, there was no evidence whatsoever presented that the victim was severely mentally disabled, highly intoxicated, unconscious or asleep. There was some evidence that the victim had a learning disability and was enrolled in special education classes. But there was no evidence presented as to the victim’s cognitive level; the victim’s mother testified only that the victim’s learning disability “sometimes affected her ability to articulate her feelings.” Id. Nonetheless, Justice Theis in Blake affirmed the trier of fact’s verdict that the victim was unable to understand the nature of the act. Id.

¶ 61 I believe that Vaughn and Blake support my view that the State should be allowed to

prove a crime under section 12-13(a)(2) by showing the victim’s young age and that he or she is so immature or uninformed about sexual matters that he or she could not effectively understand the nature of the act. But the lead opinion in the present case overreaches by ruling that minors per se should not be subject to giving testimony about their maturity levels as to sex even where it appears to be germane to proving the statutory element of “unable to understand the nature of the act.”

¶ 62 Second, while I too sympathize with any minor victim having to endure questioning

about his or her understanding of the nature of the sex act or acts in question, I note that both the victim and the State (not to mention the public and the legislature) might well prefer such questioning over the alternative the lead opinion imposes of automatically limiting the prosecution to only charging a lesser, Class 2 felony under section 12-16(d), a probationable offense. It should not escape notice that as little as one day in the timing of when the act is committed can result in a wide disparity in the crime that can be charged and the corresponding sentencing options available. If defendant’s conduct had been committed on

The victim in Vaughn on two separate occasions awoke to find defendant engaged in an initial sex act that led to two other kinds of sex acts after the victim was awake. The court relied upon the fact that the victim “was awoken to find [the defendant] in the midst of the unbroken series of sexual assaults” as support for the finding that the victim was unable to give “knowing consent” to the sex acts. See Vaughn, 2011 IL App (1st) 092834, ¶ 39. But the court did not rely on the fact that the victim had initially been asleep in discussing the theory of whether the victim was unable to “understand the nature of the sexual acts.” Id. ¶ 38.

a victim who had not yet turned 13 years of age, he would have been guilty of predatory

criminal sexual assault of a child, a Class X felony carrying a mandatory prison term with

a sentencing range of 6 to 60 years. See /12-14.1(a)(1), (b)(1) (West 2008). Given

this reality, it is doubtful that the lead opinion’s interpretation of the statutory scheme is

consistent with the legislative intent where that interpretation essentially prohibits

prosecution under section 12-13(a)(2) of an adult perpetrator who has engaged in a sex act

with a 13-year-old even where it appears that because of the victim’s immaturity she may not

have actually understood the nature of the act. At any rate, testifying at trial as a minor about

a sex crime is undoubtedly a stressful situation. See People v. Rabus, 238 Ill. App. 3d 765,

769 (1992) (noting that trial is “undeniably a stressful situation”). But the legislature has

already chosen the appropriate remedy by providing that a child victim of criminal sexual

assault—which includes the crime charged here under section 12-13(a)(2)—may give their

testimony outside of the courtroom by closed circuit television where the testimony would

otherwise result in serious emotional distress. 725 ILCS 5/106B-5 (West Supp. 2012). The

lead opinion usurps the legislature’s determination and imposes its own remedy of essentially

forbidding the charge from going forward at all where it is based on a particular 13-yearold’s lack of maturity and knowledge about sexual activity. ¶ 63 Finally, the lead opinion’s worry about the age-of-consent protections in section 12-16(d)

being “derail[ed]” by allowing the State to present evidence of the victim’s lack of maturity

and knowledge for purposes of proving a charge under section 12-13(a)(2) makes no sense.

See supra ¶ 35. No matter how this court interprets section 12-13(a)(2), everyone agrees that

what occurred in this case is at the very least a Class 2 felony under section 12-16(d). The

fact that defendant’s actions are a crime under section 12-16(d) because a minor’s consent

under that section is irrelevant does not mean that a crime could not have been committed

and proved under section 12-13(a)(2) where it is shown that the defendant knows “the victim

is unable to understand the nature of the act.”

¶ 64 I do agree, however, that if the State’s argument based on age alone (the legal age of

consent being 17) were accepted to prove a charge under section 12-13(a)(2) as a matter of

law, it would render section 12-16(d) superfluous, as a zealous prosecutor could always

simply bypass section 12-16(d) and charge the greater class felony of section 12-13(a)(2),

even where the minor actually does understand the nature of the act and factually consents.

This would indeed be an unacceptable result. But I advocate for a middle ground of allowing

the State to show under section 12-13(a)(2) that the victim actually was “unable to

understand the nature of the act,” which proof can consist of age as a factor but not in

isolation. Moreover, I note that it is axiomatic that the State was free to charge defendant

under either statutory provision or both in this case. See People v. Perry, 224 Ill. 2d 312, 339

(2007) (the prosecutor has broad discretion to decide what charges to bring where two

different statutes prohibit the criminal conduct in question but prescribe different

punishments). My interpretation of the statutory language in section 12-13(a)(2) does not

endanger the protections contained in the age-related sex offenses contained in the Code,

while it also avoids doing violence to the plain statutory language. Finally, I would submit

that what derailed the protection of the minor victim in this case was the State’s failure to

charge an additional count under section 12-16(d) of the Code, which it could have easily proved, and where the particular evidence presented on the charge that was actually brought pursuant to section 12-13(a)(2) was fatally weak.

¶ 65 CHIEF JUSTICE KILBRIDE and JUSTICE KARMEIER join in this special

concurrence.