Rape is a highly controversial topic because it is a crime involving a very personal and intimate act that evokes strong emotions when associated with force. It is a very serious crime, and one that has undergone major changes in the law to assist alleged victims endure reporting and prosecution. There are rarely any witnesses, so the criminality of a sexual encounter comes down to a “he said, she said” scenario.
So how does one defend against an accusation of rape? Not only is it horrific for someone to be terrorized and violated by being raped, it is equally damaging to be accused of this awful crime.
Illinois used to define rape as it was defined at common law, the crime being sexual penetration without the victim’s consent by force or threat of force. Under this type of law, consent is an obvious defense to rape. Illinois has since replaced this statute in favor of a new offense, titled criminal sexual assault.
Under 720 ILCS 5/11, a person commits criminal sexual assault if:
“that person commits an act of sexual penetration and:
- uses force or threat of force;
- knows that the victim is unable the understand the nature of the act or is unable to give knowing consent;
- is a family member of the victim; an the victim is under 18 years of age; or
- is 17 years of age and holds a position of trust, authority, or supervision in relations to the victim, and the victim is at least 13 years of age but under 18 years of age.”
This definition of rape eliminates “without consent” as an enumerated element of the offense. That does not mean an alleged victims consent to sex is not a defense. The amendment to the rape law was basically an effort to expand the notion of consent and force and take the focus off the victim in a criminal prosecution and place it rightfully on the defendant.
Under the current sexual assault statute, the issue of consent is an explicit defense and is shown by evidence that consent was freely given. Under this notion of consent, there need not be verbal or physical resistance to demonstrate a lack of consent. See People v Beasley.
Rape Shield Laws
Since the onus is on the prosecution to prove the elements of the offense as well as disprove the defense to the crime, the existence of consent is essentially rebuttal evidence against the State’s evidence that force was used to overcome the alleged victim’s will.
Rape Shield Laws are in place to ensure that an alleged victim is not persecuted for coming forward. So the defendant is entitled to assert the defense of consent, but it must conform to these protective laws.
Evidence of the alleged victims reputation and past sexual behavior unrelated to the case will not be allowed. However, evidence of past sexual conduct between the defendant and the alleged victim may be allowed. So will evidence that the alleged victim had sex with someone else at the time the alleged rape occurred to prove defendant was not the perpetrator.
A rape defense requires a great deal of investigation and careful consideration. To ensure you protect your freedom and rights, contact a qualified Illinois Criminal Defense Attorney immediately if you or someone you know is accused of this crime.