New rape law knocks down barriers to prosecution
By Joseph R. Tybor
Chicago Tribune - October 9, 1983
A man meets a woman at the beach. They have a good time together and make a date later that same day for dinner. After an enjoyable evening out, she invites him to her apartment for a glass of wine. They have a good conversation, but he wants more.
She resists his overtures. He becomes forceful and threatening. He pins her against the wall and throws her down. He holds her down, tears her clothes off and sexually penetrates her.
Under Illinois law, it is unlikely that the woman's acquaintance could be successfully prosecuted for rape. But that may change under a new law, highly touted by women's rights groups. The legislation met little visible opposition in the General Assembly and was conditionally approved recently by Gov. James Thompson.
PROSECUTORS ARE reluctant to bring a charge of rape when a woman has consented to a man's company and when there is no evidence of physical harm. But representatives of women's groups say "date rape" or "acquaintance rape" occurs frequently and should be punished.
One reason for the reluctance to prosecute is that rape in Illinois carries only one penalty, according to representative of women's groups who advocated the new law. Rape is a Class X felony punishable by 6 to 30 years of mandatory time in prison without the possibility of parole, and only the most severe cases generally are brought to trial.
The new measure, which is to take effect July 1, 1984, was described by Thompson as an "awesome"revision of criminal sex laws in Illinois. it would change the classifications and penalties for sex crimes, permit prosecution for "spousal rape" in severe cases, possibly ease the way to prosecute "date rape" and make it easier for victims to testify against assailants.
It is also gender-neutral, allowing for a woman to be criminally prosecuted for rape, a charge that is prohibited under current law.
"ONE OF THE major reasons for change the law was to create a broader classification of crimes, hoping to bring into the system those cases that previously eluded prosecution, said Polly Poskin, executive director of the Illinois Coalition Against Rape, one of the groups that helped draft the bill.
Specifically, the new law drops the use of the term "rape," repeals eight other sex offenses and incorporates them into four new categories of sexual crime with penalties ranging from a Class A misdemeanor to a Class X felony.
The new law punishes not only "sexual penetration" achieved through the use of force or the threat of force but als "sexual conduct" that involves sexual touching of another through the use of force of the threat of force.
The new classification are criminal sexual assault, aggravated criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse and aggravated criminal sexual abuse.
Julie Hemos, who strongly supported the bill as a legislative liaison for the office of Cook County State's Atty. Richard Daley, said she believes that as many as 75 percent of all rapes are not prosecuted.
The goal of the new law is not only to increase the number of prosecutions but also to put the focus of the crime on the defendant's behavior and not the victim's conduct.
CURRENT LAW punishes only a male "who has sexual intercourse with a female, not his wife, by force and against her will."
The new law drops the requirement that the conduct be "against her will," words that many felt subjected the victim to possibly degrading cross-examination on the witness stand.
Not everyone is happy with the bill, though it passed last spring by a 110-4 vote in the House and 56-0 vote in the Senate.
"I thought I would be excoriated by the proponents –– the women's rights groups," said one legislator in explaining why he did not vote against the bill though he opposed parts of it.
Though the bill as touted in some circles as a tough law-and-order measure, the Illinois State's Attorneys Association also couldn't agree on its merits.
At a midsummer meeting, as many prosecutors voted to oppose it as voted to favor it, said Will county State's Atty. Ed. Petka, president of the group.
"The biggest fear of those prosecutors opposed to it was that parts of it would be declared unconstitutional, and we would be placed in a state of present sex crime statutes.:
The group also is trouble by "policy issues" raised in the bill and believes that it may place an unconstitutional burden of proof on the accused.
Under the new law, a defendant may be found innocent if he can show that the alleged victim consented to the act, but the law states that "lack of verbal or physical resistance or submission by the victim. . . shall not constitute consent."
Mel Lewis, former chairman of the state bar association's Criminal Justice Section, said this part of the legislation and new and broader definitions for sexual assault and sexual conduct leave open or possible criminal prosecution "healthy sexual conduct if one of the partners becomes vindictive and vengeful after a falling out."
Under Thompson's recent amendatory veto, which needs the concurrence of the legislature, spousal rape may be charged only under the ost serious, Class X classification: aggravated criminal sexual assault. That involves "sexual penetration" under circumstances that include display or use of a dangerous weapon or which cased bodily harm.
It is considered likely that the legislature will go along with Thompson's changes in the bill.