Chapter 6: Sexual Assault Laws



CHAPTER 3: SEXUAL ASSAULT LAWS

To advocate effectively, it is helpful if you have a general working knowledge of sexual assault laws and the legal rights of victims. The roles of law enforcement and criminal justice professionals will be covered in a subsequent chapter.

This chapter will cover the following topics:

• The Illinois Criminal Sexual Assault Act of 1984

• Statutes of Limitations

• The Rights of Crime Victims and Witnesses Act

• Confidentiality

• Rape Shield Laws

• Victim Impact Statements

As a volunteer, it is not necessary for you to commit all of this information to memory. A general understanding of key legal issues generally enables you to provide support to victims. It will be important, however, for you to know how to obtain and provide additional information as needed. It will also be helpful for you to meet the legal advocate in your center and know how to consult with them or other appropriate staff as necessary. Legal issues related to sexual assault can be complex and ever-changing. As a volunteer, you should always be guided and supported by a trained and experienced staff member.

The Illinois Criminal Sexual Assault Act of 1984

Prior to 1984, rape laws in Illinois did not reflect the reality of sexual assault. Sex crime laws included antiquated provisions that failed to define sexual assault in terms of the defendant’s behavior and instead focused on the victim’s behavior or state of mind. For example, rape was defined as sexual penetration by a male at least 14 years of age, of a female – not his wife – by force and against the victim’s will. The misconceptions deeply imbedded in this law, ignored rapes committed by men under age 14, men against their wives, and same-sex assailants. It also ignored any sex crime where penetration did not occur or where penetration occurred with an object. And finally, the law forced the state to prove the assault was against her will, requiring improper speculation about the victim’s state of mind. The sex crimes statutes were fragmented and did not respond to the reality of these crimes or address these crimes from a victim’s perspective

During the 1970’s, more than 40 states recognized flaws in their sex crime laws and rewrote them. Following this reform trend, the Illinois General Assembly adopted the Criminal Sexual Assault Act of 1984, which repealed many of the outdated rape laws. The Act broadened the definition of sexual violence to more accurately represent the reality of sexual assault.

In 1995, the legislature bolstered protections for children by creating a new crime against children: predatory criminal sexual assault of a child. A defendant charged under this provision, as opposed to being charged with aggravated criminal sexual assault, faces a much stiffer penalty if convicted.

Some of the key terms clarified within the Criminal Sexual Assault Act of 1984 follow.

Force or threat of force – “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 accused threatens to use force or violence on the victim or any other person;

• the victim reasonably believed that the accused had the ability to execute the threat;

• the accused has overcome the victim by use of superior strength or size, physical restraint or physical confinement.

Sexual conduct – Sexual conduct describes the sexual behavior of the accused and includes the following:

• any intentional or knowing touching or fondling by the victim or accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused;

• touching any part of a child under 13 years of age for the purpose of sexual gratification or arousal of the victim or the accused;

• the transfer or transmission of semen by the accused on any part of the clothed or unclothed body of the victim for the purpose of sexual gratification or arousal of the victim or the accused.

Sexual penetration – Sexual penetration describes the sexual behavior of the accused and includes the following:

• any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person;

• any intrusion, however slight, of any part of the body of one person or of any animal or object into the organ or anus of another person, including but not limited to cunnilingus, fellatio, or anal penetration;

• evidence of emission of semen is not required to prove sexual penetration.

These definitions are integral to the sexual assault crimes outlined in the Sexual Assault Act. A brief summary of these key sex crimes follows:

1. Criminal Sexual Abuse – Criminal Sexual Abuse occurs when the accused commits:

• forcible sexual conduct

• sexual conduct and the accused knows the victim is unable to understand the nature of the act or unable to give knowing consent

• sexual penetration or conduct with a victim who was at least 13 years old (but under 17) and the accused was less than 5 years older than the victim. This is commonly referred to as “statutory rape.”

2. Aggravated Criminal Sexual Abuse – Aggravated Criminal Sexual Abuse occurs when the accused commits any act considered Criminal Sexual Abuse, and any one of the following aggravating factors is present.

a. Aggravating factors exist when the accused employs one or more of the following:

• uses or threatens to use a dangerous weapon;

• causes great bodily harm to the victim;

• acts in a way to threaten the life of the victim or another person;

• perpetrates the abuse during the commission or attempted commission of another felony;

• delivers a controlled substance to the victim without her consent.

b. Aggravating factors exist if the victim:

• was age 60 or older when the offense was committed; or

• was a physically handicapped person.

c. Aggravating factors exist if the accused commits an act of sexual conduct with a victim under the age of 18, and the accused is a family member.

d. Aggravating factors exist if the accused was 17 years of age or older and:

• s/he commits an act of sexual conduct with a victim who was under 13 years old, or

• the victim was at least 13 years old, but under the age of 17 when the act of sexual conduct was committed and the accused used force or the threat of force.

e. Aggravating factors exist if the accused is under the age of 17 and:

• commits an act of sexual conduct with a victim younger than 9 years old, or

• the victim was at least 9 years old but under the age of 17 and the accused used force or threat of force to commit an act of sexual conduct.

f. Aggravating factors exist if the accused was at least 5 years older than the victim and committed 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. This is commonly referred to as “statutory rape.”

g. Aggravating factors exist if the accused commits an act of sexual conduct with a victim who was an institutionalized severely or profoundly mentally retarded person at the time the act was committed.

h. Aggravating factors exist if the accused commits an act of sexual conduct 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 older and held a position of trust, authority or supervision in relation to the victim.

3. Criminal Sexual Assault – Criminal Sexual Assault occurs if the accused commits sexual penetration and any of the following conditions exist:

a. force or threat of force;

b. defendant knows the victim does not understand the nature of the act, or victim is incapable of consenting;

c. victim is under 18 and the accused is a family member; or

d. the victim is at least 13 years old but under 18 years old and the accused is 17 years of age; and the accused held a position of trust, authority or supervision with the victim.

4. Aggravated Criminal Sexual Assault – Aggravated Criminal Sexual Assault occurs when the accused commits Criminal Sexual Assault, and any one of the following aggravating factors are present:

a. Aggravating factors exist if the accused:

• uses a dangerous weapon or something that appears to be a dangerous weapon (other than a firearm);

• causes bodily harm to the victim;

• threatens or endangers the life of the victim or another person;

• the offense occurred while the accused was committing another felony or attempted felony;

• delivered to the victim a controlled substance without her consent;

• is armed with a firearm; or

• discharges a firearm during the offense that caused great bodily harm or death to another person.

b. Aggravating factors exist if the accused engages in sexual penetration with a victim who:

• is 60 years old or over; or

• is physically handicapped.

c. Aggravating factors exist if the accused is under age 17 and:

• commits an act of sexual penetration with a victim who is under the age of 9 years old; or

• commits an act of sexual penetration with a victim who is at least 9 years old, but under the age of 13 years old when the act was committed and the accused used force or threat of force to commit the act.

d. Aggravating factors exist if the accused commits an act of sexual penetration or sexual conduct with a victim who was an institutionalized severely or profoundly mentally retarded person at the time the act was committed.

5. Predatory Criminal Sexual Assault of a Child – The Illinois legislature made Predatory Criminal Sexual Assault of a Child an individual crime in 1995. Predatory Criminal Sexual Assault of a Child is a Class X felony. The offense of Predatory Criminal Sexual Assault of a Child occurs if a defendant who is 17 years old or older sexually penetrates a victim who is under the age of 13 years old when the act occurs. If the defendant causes great bodily harm which results in permanent or life-threatening injuries, or the accused delivered a controlled substance to the victim, a more serious sentence will be imposed.

6. Withdrawal of Consent – A recent amendment to the Illinois Criminal Sexual Assault Act clarifies the role of consent in cases of sexual assault. The original sexual assault statute defined consent as a freely given agreement to an act of sexual conduct or penetration. The recent amendment clarifies that a person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any conduct or penetration that occurs after he or she withdraws consent during the course of sexual activity.

7. Additional Sex Crimes – In addition to the crimes listed above, Illinois law prohibits a wide range of related crimes, including pornography, solicitation, criminal transmission of HIV, stalking, female genital mutilation, sexual exploitation and others. For a more complete listing of other sex crimes, see Illinois Criminal Sexual Assault Acts and Related Statutes, published by ICASA.

The most important thing to remember about the sexual assault laws is that they create broad definitions of sexual assault that attempt to accurately reflect the reality of victims’ experiences. The reality of sexual assault, as reflected in the laws, is that it occurs as a continuum of behaviors in many varying circumstances.

Statutes of Limitations

Statutes of limitations set forth the period of time in which criminal charges must be brought after a crime is committed. If a prosecutor does not file charges before the time limit expires, the offender can never be charged. In Illinois, several limitations apply to sex crimes.

1. Standard Criminal Statutes of Limitations – The standard statute of limitations for all felony crimes is three years. The standard statute of limitations for all misdemeanor crimes is 18 months.

2. Sex Crimes Limitations Periods – Recognizing that victims of sex crimes may need more time to report a crime and to participate in the criminal justice process than victims of other crimes do, the Illinois legislature has enacted longer statutes of limitations for some sex crimes.

• Adult Victims – If an adult is the victim of criminal sexual assault, aggravated criminal sexual assault or aggravated criminal sexual abuse, and she reports the crime to law enforcement within two years of it happening, the statute of limitations is ten years.

• Minor Victims – A recent revision in the law extends the criminal statute of limitations in cases involving a child victim until the victim turns 38.

The laws involving statutes of limitations change frequently, and the law that generally applies relates to when the rape occurred. It is ultimately up to the prosecutor to determine the appropriate statute of limitations for specific offenses. A sexual assault worker should never tell a victim whether the statute of limitations applies to her case without consulting the prosecutor.

The Rights of Crime Victims and Witnesses Act

Victims of crime and witnesses to crime have certain legal rights in the state of Illinois. A statement regarding these rights is given to the victim at her initial contact with the criminal justice system and posted in all courthouses. The rights of crime victims and witnesses are highlighted below.

Crime victims have the right to:

• Be treated with fairness and respect for their dignity and privacy

• Notification of court proceedings

• Communicate with the prosecution

• Make a statement to the court at sentencing (Victim Impact Statement)

• Information about the conviction, sentence imprisonment and release of the accused

• Timely disposition of the case following the arrest of the accused

• Be protected from the accused through the criminal justice process

• Be present at trial unless the victim is to testify and the court finds that her testimony would be affected by hearing other testimony at trial

• Have an advocate or other support person present

• Restitution

Confidentiality

In a few specific circumstances, the relationship between two people is considered so private that communications between them are considered privileged and, therefore, protected and excluded from being repeated during a trial. Husband/wife, attorney/client, doctor/patient, clergy/parishioner and journalist/source are some examples of these privileged relationships.

In Illinois, the statute regarding Confidentiality of Statements Made to Rape Crisis Personnel establishes an absolute privilege that allows for protected communication between a victim and a rape crisis worker, thus giving victims more control over information about their lives. Victims can confide in their counselor or advocate knowing that they run little risk of having those communications disclosed unless they consent to such disclosure. In fact, a worker who divulges information without consent can be charged with a misdemeanor criminal offense.

The following requirements apply to insure the right to absolute confidentiality:

• The worker must be a psychologist, social worker, employee or volunteer in a rape crisis organization, and

• The worker must be 40-hour trained and under control of a direct services supervisor at the rape crisis organization.

Confidential communications include any communication between a victim and a rape crisis counselor in the course of seeking services. This also includes all documentation in client records. Confidentiality is not waived by:

• The presence of a third person who further expresses interests of the victim at the time of the communication;

• Group counseling;

• Disclosures to a third person when necessary to accomplish the purpose for which the rape crisis counselor is consulted.

Exceptions to Absolute Privilege

Exceptions to the right to absolute privilege include the following:

1. Duty to Warn – If a rape crisis center believes that failing to disclose confidential communications will result in serious bodily harm to someone, then the counselor should disclose the communication with immunity from any liability.

2. Reporting Child Sexual Abuse – When the victim is a minor, child protective statutes override the protection of confidentiality. Rape crisis workers are required to report suspected child abuse and neglect to the Illinois Department of Children and Family Services (IDCFS) under the Abused and Neglected Child Reporting Act (ANCRA). For more information on mandated reporting, see Page 5-15.

3. Reporting Elder Abuse – Rape crisis center employees and volunteers are also required to report elder abuse under the Elder Abuse and Neglect Act. A volunteer should talk with a trained, experienced staff member in making such a report.

Waiver of the Right to Confidentiality

Despite having an absolute privilege to keep information confidential, occasionally a victim will choose to release her records or ask her counselor to testify at a hearing or trial. Ultimately, the victim makes the decision whether to waive this privilege. But counselors (and advocates, educators and, sometimes, center directors) play an important role in ensuring the victim is fully informed and understands the consequences involved in waiving her privilege to confidentiality.

Circumstances in Which a Victim Might Waive Her Privilege

A victim may choose to waive her privilege in any kind of legal case – a criminal case, a civil case against her perpetrator, or a civil matter such as a divorce or a custody lawsuit. But once she waives this privilege, she has waived it forever. A victim generally considers waiving confidentiality in a legal case when she, in conjunction with a lawyer, believes that the testimony of the rape crisis counselor (either verbal or through records) will reinforce the victim’s position in the case.

A victim also may consider waiving her privilege to allow a rape crisis counselor or advocate to talk to another professional with whom the victim is working, such as a medical doctor. In this situation, a victim usually considers waiving confidentiality to allow her service providers to communicate with each other. Advocates should stress to a victim that, once she chooses to waive her privilege of confidentiality, she has waived the privilege.

Rape Shield Laws

There was a time when the past history of a sexual assault victim and/or her reputation could be and was used to blame the victim for her own assault. That changed with the passage of the rape shield statute. Under this statute, evidence of the victim’s reputation and past sexual history with anyone other than the defendant is not to be introduced at trial. Evidence relating to previous sexual relations between the defendant and the victim must include a special presentation to the judge outside of the jury’s presence about what the evidence would be and its relevance to the case. The defendant must offer reasonable specific information as to the time, date, and place of the past sexual conduct. Evidence will not be admitted if the court finds the value of the information is outweighed by unfair prejudice to either the victim or the defendant.

Victim Impact Statements

As stated previously, victims of sexual assault have the right to make a statement to the court at sentencing. The victim or her representative and a family member of the victim may make a statement to the court about the impact of the defendant’s conduct on the victim and/or the victim’s family. She may have no other opportunity to express to the court how this crime has affected her. For many victims, it is important to exercise this right to speak in court about something that has had a major impact on their lives.

The purpose of the victim impact statement is to advise the judge of the impact of the crime on the victim and those close to her. If the defendant is convicted after trial, this statement may be taken into account when the offender is sentenced. Victim impact statements are not allowed after a plea bargain.

A victim impact statement is voluntary. However, it may be helpful to the judge when he or she decides what sentence the defendant should receive and/or any money the defendant may have to pay for expenses associated with the crime. When the judge makes the defendant pay the victim, it is called “restitution.” If the judge orders the defendant to pay restitution, there is no guarantee that the defendant will be able to pay the entire amount.

The victim impact statement will become an official court document after it is given to the court, and will become part of the defendant’s permanent file. The judge, prosecutor and probation officer will read the statement. In addition, prison and parole officials may read the statement if the defendant is sentenced to a prison term. The defendant and the defendant’s attorney will also be able to read what was written. They may even be able to ask the victim questions about the statement in court. However, the defendant will not have access to any personal information (address, phone number, etc.), as this information is not required in the writing of the statement.

Other specific suggestions for items to include in the statement are: emotional, physical and financial impact; effects on social and family relationships; effects on the victim’s personal belief system; and what the victim wants to happen to the offender (prison time, fines, counseling). While any person can assist the victim in writing her statement, it is important that the statement is in her own words. The statement must be prepared in conjunction with the State’s Attorney’s Office.

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