People v. Denbo

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 4th District Appellate » 2007 » People v. Denbo

People v. Denbo

State: Illinois

Court: 4th District Appellate

Docket No: 4-05-0516 Rel

Case Date: 04/19/2007

Preview:NO. 4-05-0516 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KELLY J. DENBO, Defendant-Appellant. ) ) ) ) ) ) ) )

Filed 4/19/07

Appeal from Circuit Court of Douglas County No. 04CF99 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 She appeals on the

defendant to imprisonment for seven years.

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 Looking at the

her hand from R.H.'s vagina on the second push.

evidence in a light most favorable to the prosecution, we conclude 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. element of force. 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 exThe State failed to prove the

Therefore we reverse the trial court's judg-

tremely hard of hearing, practically deaf, she testified through an interpreter. R.H. first met defendant in June 2004 at a They developed a romantic

nursing home, where they both worked. 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 Defendant drank beer while grilling the steaks, but After supper, R.H.

in Tuscola.

R.H. abstained from alcohol that evening.

went to defendant's bedroom "and just kept waiting and waiting and waiting" while defendant talked on the telephone. R.H. thought. "[O]kay,"

"[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." of it": words." Defendant appeared to be "out

"she was very slow to respond and *** slurred her 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. rough. Then she shoved me, and she was 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. - 3 I didn't do any-

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 How

indicated you were [lying] on the bed. was Kelly on you?

A. Kelly was kneeling on top of me and had my legs spread apart so she was in between 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. know why she hurt me. her. She said she didn't I continued to ask

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 communicated 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 It

No. 1 on September 27, 2004, shortly after the incident. says: "I will let you know tomorrow night. - 5 -

Is [illegible] us.

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. pened. Okay[?] I am sorry that that hapI can't believe that I could It makes me

do what someone did to 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. careful. I am truly sorry[,] though. I don't want to lose you. I scared you, yes. Be

That's I can

not what I want.

apologize forever for that.

There [is] no Yes, you

amount of apologies I can give you. are to[o] good for me. hurt you. forgiven.

I love you[,] and I

This is something that can't be I'm so sorry. I never meant for

this to happen. apart for awhile. my scary side.

We probably need some time I need to straighten out

Med[ication]s or something. Maybe I need to I know I

I don't want to break up.

get rid of [the] scary side of me. - 6 -

have one.

We need time apart--okay[?]

I'm

sorry it had to end this way.

I will not I am

quit [because] I love my residents. sorry I hurt you last night.

I don't want to

hurt anyone else that way again[,] [including] you. I'm sorry. I swear to you that I I am not the kind I care that I hurt I'm sorry I I knew

did not hear you say no. of person that does this. you.

I'm sorry you're shocked. I'm just sorry.

did this.

Okay[?]

you can't take me back. able.

That's understand-

There [is] no amount of sorrys I can I'm sorry. Please let me know if

give you.

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." original.)

(Emphasis in

R.H. testified that defendant sent her the remaining letters in October 2004 through an intermediary at work. ple's exhibit No. 3 reads as follows: "I do love you and care for you. very worried about you. to. I'll do it anyway. I'm Peo-

I know you said not My feelings about I should die for

what I've done are mixed. - 7 -

what I've done.

I feel like I should not be I want to be with

with you because of this. you.

But after what I've done[,] I feel I don't feel like I deserve I'm going to

horrible, sick. you.

We need time[,] okay[?]

have to feel right about myself before I can go on with you[,] okay[?] I do want you[,] okay[?] fix myself." People's exhibit No. 4 appears to consist of three letters. Here is the first one: "I did read your note. sometimes, when I'm drinking. though. do. I do get mean Not always[,] Please understand. I just need time to

And I'm sorry that I hurt you when I

I do realize that I've done it[,] and It makes me feel like shit when I

I'm sorry.

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. comes out quick[ly]. I do have a temper. It

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. love you. tonight." The second letter in People's exhibit No. 4 reads as follows: "I know it seems like I don't care. I do. But I will always

Let me know if you are coming over

It just so happens that I am under a The kids, my parents,

great deal of stress. brother. My job.

I have blood in my bowels Then I

because I am under too much stress. broke a blood vessel in my eye. a very stressful week.

It[']s been

Also I hurt you.

That[']s just making it all the more stressful. I do care. But I'm at my stress point But I asked [for] I need to

right now.

I do love you.

time away to sort out my life. unstress myself.

I[']m getting to the point

of saying fuck it to life and go[ing] away. But I know I can't. okay[?] Not forever. I just need time[,] 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[?] asked you about it.

I should have

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 I am responsible for this. I

fix you[?]

feel the need to be killed in some horrible way right now. I feel that I don't need to I am very sorry this

be forgiven, ever. happened.

We do need time because I need to Basically, myself. I love you

fix my temper, drinking.

I am truly sorry that I did this. and did not want to hurt you. - 10 -

Please believe

me when I say it wasn't intentional. sorry. I know we need to talk.

I am I

We will.

need time to sort out what you just told me. I am sorry." People's exhibit No. 5 says: you[']r[e] not upset with me. Is that okay[?] "I really do hope

I want you on Sunday and Monday. I

I won't go if you[']r[e] going to be upset. But I promised my

love you and wanna a few days with you. cousins. Don't be angry."

The final letter, People's exhibit No. 6, says: of all[,] I know in my heart I did not rape you. I did[,]

"First

however[,] make you bleed[,] and for that I'm sorry." The prosecutor asked R.H. the following: "Q. Was this touching without your consent? * * * 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? A. Yes. 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. Did you try to stop her from doing that? A. No. Q. I think you said[,] in your direct testimony[,] that then Kelly [']went[']--and your words were[] [']right through my vagina[']? 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 These sexual encounters

three occasions before the incident. were all in defendant's bedroom.

After September 27, 2004, R.H. It was defendant's idea that

visited defendant's house one time.

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 I never ***

to know why she had hurt me[,] and I had no clue. 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. interviewed R.H. on November 9, 2004. He testified he

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 Kremer returned the

upset and she needed an appointment."

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. her off and left." The wall of R.H.'s vagina "was very abraded. a rug burn. It was kind of like There was no Then she was able to fight

There were no obvious lacerations.

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 It was

this if R.H.'s girlfriend had done what R.H. said.

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. questions, Kremer answered yes. To both

The prosecutor asked her to Kremer

describe the "model characteristics" of the syndrome. 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. again on October 22, 2004. Kremer saw her

At that time, she diagnosed R.H. was "having crying spells.

posttraumatic stress disorder.

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, She saw

and found her to be still suffering from the disorder. 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." 13(a)(1) (West 2004). See 720 ILCS 5/12-14(a), 12"All of the

Defense counsel argued:

evidence points to the fact that this was a voluntary interaction. It occurred in Ms. Denbo's home, in her bedroom, on her

bed, where the alleged victim came in and la[y] down and voluntarily *** 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. directed verdict. Defendant called her mother, Nancy Denbo, as her first witness. Denbo testified she lived in a small two-bedroom house In the summer of 2004, R.H. began The trial court denied the motion for a

on Overton Street in Tuscola.

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. the house, and nothing seemed amiss.

R.H. was still in

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. fied she lived in Atwood with her son and R.H. She testi-

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 R.H. did not finish her shift She also missed

an hour early to speak with Goad.

that day; "she *** said that she was bleeding."

work on September 30, 2004, because "she was still having problems and she wasn't going to be able to work." her the nursing home's policy: Goad explained to

"if you miss two days because of Therefore, on

illness, *** you have to go to the doctor."

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 appointment 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 R.H. typically

five times a week, given their schedule at work." 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. cookout. On September 27, 2004, R.H. came over for a

Defendant had two beers that evening but did not become After dinner, she and defendant watched a couple of Defendant then bathed and dressed the

intoxicated.

movies with the children.

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: the lights. lit the candles, put on some music, and turned off 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 (R.H. could understand her if

talked with her for a few minutes. 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. 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 She didn't push

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. Q. Okay. A. She came back and said she was bleeding a little. She said she was hurting[,] I didn't know that I might

and I apologized.

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. But she was okay. I

do admit that.

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 you? A. Yes. 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 defendant'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. the letters predated the incident. According to her, some of

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. 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 Defendant denied

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. - 21 The State also recalled R.H.,

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 on

visited defendant's house once after September 27, 2004: 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 following 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 5/1213(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[.]" 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 12720 ILCS 5/12-

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 limited 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 accused had the ability to execute that threat; or (2) when the accused has overcome the victim by use of superior strength or size, physical restraint[,] or physical confinement." 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. 720 ILCS 5/12-12(d) (West

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, 87071 (1998). In its case in chief, the State has the burden of proving the element of force beyond a reasonable doubt. 118 Ill. 2d at 274, 515 N.E.2d at 50. - 24 Haywood,

By proving force, the

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). provides as follows: "(a) It shall be a defense to any offense 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 Section 12-17(a) of the Code

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." (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." 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 Haywood, 118 Ill. 2d at 274, 720 ILCS 5/12-17(a)

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 1212(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,

Download People v. Denbo.pdf