People v. Denbo

NO. 4-05-0516 Filed 4/19/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Douglas County
KELLY J. DENBO, ) No. 04CF99
Defendant-Appellant. )
) 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

defendant to imprisonment for seven years. She appeals on the

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

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

evidence in a light most favorable to the prosecution, we con-

clude 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. The State failed to prove the

element of force. Therefore we reverse the trial court's judg-

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 ex-

tremely hard of hearing, practically deaf, she testified through

an interpreter. R.H. first met defendant in June 2004 at a

nursing home, where they both worked. They developed a romantic

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

in Tuscola. Defendant drank beer while grilling the steaks, but

R.H. abstained from alcohol that evening. After supper, R.H.

went to defendant's bedroom "and just kept waiting and waiting

and waiting" while defendant talked on the telephone. "[O]kay,"

R.H. thought. "[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." Defendant appeared to be "out

of it": "she was very slow to respond and *** slurred her

words." 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. Then she shoved me, and she was

rough. 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. I didn't do any-

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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

indicated you were [lying] on the bed. How

was Kelly on you?

A. Kelly was kneeling on top of me and

had my legs spread apart so she was in be-

tween 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

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 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. She said she didn't

know why she hurt me. I continued to ask

her. 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 communi-

cated 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

No. 1 on September 27, 2004, shortly after the incident. It

says: "I will let you know tomorrow night. Is [illegible] us.

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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. I am sorry that that hap-

pened. Okay[?] I can't believe that I could

do what someone did to me. It makes 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. I am truly sorry[,] though. Be

careful. I don't want to lose you. That's

not what I want. I scared you, yes. I can

apologize forever for that. There [is] no

amount of apologies I can give you. Yes, you

are to[o] good for me. I love you[,] and I

hurt you. This is something that can't be

forgiven. I'm so sorry. I never meant for

this to happen. We probably need some time

apart for awhile. I need to straighten out

my scary side. Med[ication]s or something.

I don't want to break up. Maybe I need to

get rid of [the] scary side of me. I know I

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 have one. We need time apart--okay[?] I'm

sorry it had to end this way. I will not

quit [because] I love my residents. I am

sorry I hurt you last night. I don't want to

hurt anyone else that way again[,] [includ-

ing] you. I'm sorry. I swear to you that I

did not hear you say no. I am not the kind

of person that does this. I care that I hurt

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

did this. I'm just sorry. Okay[?] I knew

you can't take me back. That's understand-

able. There [is] no amount of sorrys I can

give you. I'm sorry. Please let me know if

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." (Emphasis in

original.)

R.H. testified that defendant sent her the remaining

letters in October 2004 through an intermediary at work. Peo-

ple's exhibit No. 3 reads as follows:

"I do love you and care for you. I'm

very worried about you. I know you said not

to. I'll do it anyway. My feelings about

what I've done are mixed. I should die for

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 what I've done. I feel like I should not be

with you because of this. I want to be with

you. But after what I've done[,] I feel

horrible, sick. I don't feel like I deserve

you. We need time[,] okay[?] I'm going to

have to feel right about myself before I can

go on with you[,] okay[?] Please understand.

I do want you[,] okay[?] I just need time to

fix myself."

People's exhibit No. 4 appears to consist of three

letters. Here is the first one:

"I did read your note. I do get mean

sometimes, when I'm drinking. Not always[,]

though. And I'm sorry that I hurt you when I

do. I do realize that I've done it[,] and

I'm sorry. It makes me feel like shit when I

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. I do have a temper. It

comes out quick[ly]. I'll learn to deal with

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 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. I will always

love you. Let me know if you are coming over

tonight."

The second letter in People's exhibit No. 4 reads as follows:

"I know it seems like I don't care. But

I do. It just so happens that I am under a

great deal of stress. The kids, my parents,

brother. My job. I have blood in my bowels

because I am under too much stress. Then I

broke a blood vessel in my eye. It[']s been

a very stressful week. Also I hurt you.

That[']s just making it all the more stress-

ful. I do care. But I'm at my stress point

right now. I do love you. But I asked [for]

time away to sort out my life. I need to

unstress myself. I[']m getting to the point

of saying fuck it to life and go[ing] away.

But I know I can't. I just need time[,]

okay[?] Not forever. I'm sorry I haven't

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 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[?] I should have

asked you about it. 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

fix you[?] I am responsible for this. I

feel the need to be killed in some horrible

way right now. I feel that I don't need to

be forgiven, ever. I am very sorry this

happened. We do need time because I need to

fix my temper, drinking. Basically, myself.

I am truly sorry that I did this. I love you

and did not want to hurt you. Please believe

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 me when I say it wasn't intentional. I am

sorry. I know we need to talk. We will. I

need time to sort out what you just told me.

I am sorry."

People's exhibit No. 5 says: "I really do hope

you[']r[e] not upset with me. I want you on Sunday and Monday.

Is that okay[?] I won't go if you[']r[e] going to be upset. I

love you and wanna a few days with you. But I promised my

cousins. Don't be angry."

The final letter, People's exhibit No. 6, says: "First

of all[,] I know in my heart I did not rape you. I did[,]

however[,] make you bleed[,] and for that I'm sorry."

The prosecutor asked R.H. the following:

"Q. Was this touching without your con-

sent?

* * *

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.

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 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 va-

gina[']?

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

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 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

three occasions before the incident. These sexual encounters

were all in defendant's bedroom. After September 27, 2004, R.H.

visited defendant's house one time. It was defendant's idea that

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

to know why she had hurt me[,] and I had no clue. I never ***

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. He testified he

interviewed R.H. on November 9, 2004. 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

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her office requesting that she telephone R.H.'s roommate, Donna

Goad. "The message said that [R.H.] had been raped and was very

upset and she needed an appointment." Kremer returned the

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. Then she was able to fight

her off and left."

The wall of R.H.'s vagina "was very abraded. It was kind of like

a rug burn. There were no obvious lacerations. There was no

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

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

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

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[could] result from sexual assault" and whether she had "dealt

with" this condition in the course of her profession. To both

questions, Kremer answered yes. The prosecutor asked her to

describe the "model characteristics" of the syndrome. Kremer

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. Kremer saw her

again on October 22, 2004. At that time, she diagnosed

posttraumatic stress disorder. R.H. was "having crying spells.

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,

and found her to be still suffering from the disorder. She saw

no symptoms of the disorder before September 30, 2004.

The State rested, and defendant moved for a directed

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verdict on the ground that the State had failed to prove "the use

of force or threat of force." See 720 ILCS 5/12-14(a), 12-

13(a)(1) (West 2004). Defense counsel argued: "All of the

evidence points to the fact that this was a voluntary interac-

tion. It occurred in Ms. Denbo's home, in her bedroom, on her

bed, where the alleged victim came in and la[y] down and volun-

tarily *** 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. The trial court denied the motion for a

directed verdict.

Defendant called her mother, Nancy Denbo, as her first

witness. Denbo testified she lived in a small two-bedroom house

on Overton Street in Tuscola. In the summer of 2004, R.H. began

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

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between 7 and 7:30 a.m. on September 28, 2004. R.H. was still in

the house, and nothing seemed amiss. 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. She testi-

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

an hour early to speak with Goad. R.H. did not finish her shift

that day; "she *** said that she was bleeding." She also missed

work on September 30, 2004, because "she was still having prob-

lems and she wasn't going to be able to work." Goad explained to

her the nursing home's policy: "if you miss two days because of

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

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 appoint-

ment for her with a counselor.

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 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

five times a week, given their schedule at work." R.H. typically

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. On September 27, 2004, R.H. came over for a

cookout. Defendant had two beers that evening but did not become

intoxicated. After dinner, she and defendant watched a couple of

movies with the children. Defendant then bathed and dressed the

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: lit the candles, put on some music, and turned off

the lights. 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

talked with her for a few minutes. (R.H. could understand her if

she raised her voice.) Then they "started getting intimate,"

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"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. She didn't push

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

time, because music was on and my head was in

an uncompromising [sic] position.

Q. Okay.

A. But she nudged my shoulder[,] and I

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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 bleed-

ing a little. She said she was hurting[,]

and I apologized. I didn't know that I might

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. I

do admit that. But she was okay. 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."

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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 defen-

dant'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. According to her, some of

the letters predated the incident. 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. Defendant denied

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

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. The State also recalled R.H.,

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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

visited defendant's house once after September 27, 2004: on

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 fol-

lowing aggravating circumstances existed

during *** the commission of the offense:

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 ***

(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 5/12-

13(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[.]" 720 ILCS 5/12-

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 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 lim-

ited to the following situations:

(1) when the accused threatens

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 to use force or violence on the

victim or on any other person, and

the victim under the circumstances

reasonably believed that the ac-

cused had the ability to execute

that threat; or

(2) when the accused has over-

come the victim by use of superior

strength or size, physical

restraint[,] or physical confine-

ment." 720 ILCS 5/12-12(d) (West

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.

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, 870-

71 (1998).

In its case in chief, the State has the burden of

proving the element of force beyond a reasonable doubt. Haywood,

118 Ill. 2d at 274, 515 N.E.2d at 50. By proving force, the

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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). Section 12-17(a) of the Code

provides as follows:

"(a) It shall be a defense to any of-

fense 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

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

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 the victim at the time of the offense shall

not constitute consent." 720 ILCS 5/12-17(a)

(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." Haywood, 118 Ill. 2d at 274,

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

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 12-

12(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, §5,

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eff. July 25, 2003 (2003 Ill. Laws 2872, 2872-73)), adding

subsection (c) to section 12-17 of the Code (720 ILCS 5/12-17

(West 2004)). Section 12-17 is entitled "Defenses," and (as we

have discussed) subsection (a) provides that consent is a defense

to criminal sexual assault and to other sex crimes in which force

or the threat of force is an element. 720 ILCS 5/12-17(a) (West

2004). Subsection (c) limits or clarifies the defense in subsec-

tion (a) by making the consent effective only up to the with-

drawal of consent: "A person who initially consents to sexual

penetration or sexual conduct is not deemed to have consented to

any sexual penetration or sexual conduct that occurs after he or

she withdraws consent during the course of that sexual penetra-

tion or sexual conduct." 720 ILCS 5/12-17(c) (West 2004).

In the minds of some commentators, the concept of

withdrawal of consent makes the element of force problematic. In

re John Z., 29 Cal. 4th 756, 764, 60 P.3d 183, 188, 128 Cal.

Rptr. 2d 783, 789-90 (2003) (Brown, J., dissenting); N. Walsh,

The Collusion of Consent, Force, & Mens Rea in Withdrawal of

Consent Rape Cases: The Failure of In re John Z., 26 Whittier L.

Rev. 225, 252 (2004); J. Emlen, A Critical Exercise in Effectuat-

ing "No Means No" Rape Law, 29 Vt. L. Rev. 215, 248 (2004);

Note, Acquaintance Rape & Degrees of Consent: "No" Means "No,"

But What Does "Yes" Mean?, 117 Harv. L. Rev. 2341, 2363 (2004).

If, initially, A sexually penetrates B with B's consent (and,

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therefore, without force) but merely remains inside of B after B

says, "Stop, I don't want to do this any longer," where is the

force? "To prove the element of force is implicitly to show

nonconsent" (Haywood, 118 Ill. 2d at 274, 515 N.E.2d at 50); but,

in a case of postpenetration criminal sexual assault, it is

unclear that proving the withdrawal of consent implicitly proves

force. One writer has drawn a distinction between

"[p]ostpenetration rape [as] a doctrine of unwanted sex" and

"prepenetration rape [as] a doctrine of forced sex." 117 Harv.

L. Rev. at 2363. Another writer argues: "[O]nce the victim

unequivocally revokes consent, the force required to accomplish

continued penetration is sufficient to complete the crime." A.

Davis, Clarifying the Issue of Consent: The Evolution of

Post-Penetration Rape Law, 34 Stetson L. Rev. 729, 757 (2005).

The question is whether mere persistence in sexual penetration,

after the withdrawal of consent, can serve as a "proxy" for force

(117 Harv. L. Rev. at 2363), considering that "force" must be

something more than the force inherent to sexual penetration

(Haywood, 118 Ill. 2d at 274-75, 515 N.E.2d at 50-51; Kinney, 294

Ill. App. 3d at 908, 691 N.E.2d at 870-71). See State v. Robin-

son, 496 A.2d 1067, 1070 (Me. 1985) ("We emphasize that the

ongoing intercourse, initiated[,] we here assume[,] with the

prosecutrix's consent, did not become rape merely because she

revoked her consent. It became rape if and when the prosecutrix

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thereafter submitted to [the] defendant's sexual assault only

because '[force or the threat of force made her] unable to

physically repel the [defendant] or [too frightened to do so]'").

Perhaps, as a practical matter, this question will

seldom arise because if B wishes to have sex no longer, B will

surely disengage if he or she is able to do so, and if, by his or

her physical posture, A prevents B from disengaging--for example,

by continuing to lie on top of B (John Z., 29 Cal. 4th at 760, 60

P.3d at 185, 128 Cal. Rptr. 2d at 786)--A thereby forces B to

continue with the sexual penetration. In John Z., 29 Cal. 4th at

759, 60 P. 3d at 185, 128 Cal. Rptr. 2d at 786, for example, the

California decision that inspired section 12-17(c) (720 ILCS

5/12-17(c) (West 2004)) (T. Bohn, Yes, Then No, Means No:

Current Issues, Trends, & Problems in Post-Penetration Rape, 25

N. Ill. U. L. Rev. 151, 164-65 (2004)), the defendant constrained

the victim to continue with sexual penetration, when she was on

top of him, by grabbing her hips and pulling her back down when

she tried to pull away. Then he rolled her over so he was on top

of her. John Z., 29 Cal. 4th at 759, 60 P.3d at 185, 128 Cal.

Rptr. 2d at 786. "'No,'" she said, "'I need to go home,'" but he

persisted in sexual intercourse for another minute or minute and

a half, all the while asking for more time. John Z., 29 Cal. 4th

at 760, 60 P.3d at 185, 128 Cal. Rptr. 2d at 786. The victim

testified: "'[H]e just stayed inside of me and kept like basi-

- 29 -
cally forcing it on me.'" John Z., 29 Cal. 4th at 760, 60 P.3d

at 185, 128 Cal. Rptr. 2d at 786. In affirming the conviction,

the Supreme Court of California held: "[T]he offense of forcible

rape occurs when, during apparently consensual intercourse, the

victim expresses an objection and attempts to stop the act and

the defendant forcibly continues despite the objection." (Empha-

sis added.) John Z., 29 Cal. 4th at 760, 60 P.3d at 185, 128

Cal. Rptr. 2d at 786. She no doubt felt "forced" in both

positions--not only when the defendant grabbed her hips and

pulled her down but also when he was on top of her. One can, in

a manner of speaking, passively force someone to continue with

the sex act by using one's own bodily inertia to prevent the

partner from disengaging. This would be force beyond that

inherent to the sex act itself.

One may reasonably infer that R.H. pushed defendant

because disengagement was, for her, physically impossible until

defendant withdrew. Defendant withdrew when R.H. pushed her a

second time. If an aggravated criminal sexual assault happened

at all, it happened during the very short duration between the

first and second push, when defendant, by not moving, prevented

R.H. from immediately disengaging. Even though, subjectively,

R.H. no longer consented, her withdrawal of consent was ineffec-

tive until she communicated it to defendant in some objective

manner (see People v. Carlson, 278 Ill. App. 3d 515, 520, 663

- 30 -
N.E.2d 32, 36 (1996)) so that a reasonable person in defendant's

circumstances would have understood that R.H. no longer consented

(see Kinney, 294 Ill. App. 3d at 908, 691 N.E.2d at 871).

Defendant used force on R.H. only if the first push operated as

an objective withdrawal of consent.

Looking at the evidence in a light most favorable to

the State, we conclude that no rational trier of fact could find,

beyond a reasonable doubt, that a reasonable person, in defen-

dant's circumstances, would have understood that initial push as

a withdrawal of consent. See People v. Schott, 145 Ill. 2d 188,

203, 582 N.E.2d 690, 697 (1991). According to a letter from

defendant that the State presented at trial, R.H. was capable of

talking ("I swear to you that I did not hear you say no").

R.H.'s excuse was that she did not want to wake the children by

screaming. Even if one credited that excuse, it would not solve

the problem of an uncommunicated withdrawal of consent. R.H.

could have said no--and, evidently, defendant expected her to say

no, or at least say something, if she wanted defendant to stop

the sexual penetration. This expectation seems reasonable. R.H.

did not say no or stop. Instead, she pushed defendant. The

problem is, people push one another during sexual congress. We

do not mean to suggest that a push can never signify nonconsent

or a withdrawal of consent. In fact, the second push here was

clearly made with enough force to both be distinguished from a

- 31 -
caress and to effectively communicate the withdrawal of consent.

"'Force' and 'consent' simply do not have static meanings. The

significance of various factors--a cry for help, level of resis-

tance, attempt to escape--depend[s] on the circumstances of each

case." Kinney, 294 Ill. App. 3d at 909-10, 691 N.E.2d at 871

(Knecht, J., specially concurring). Under the circumstances of

this case, a single push to the shoulders, without more, cannot

serve as an objective communication of R.H.'s withdrawal of

consent.

III. CONCLUSION

For the foregoing reasons, we reverse the trial court's

judgment.

Reversed.

McCULLOUGH, J., concurs.

TURNER, J., dissents.

- 32 -
 JUSTICE TURNER, dissenting:

I respectfully dissent.

When a defendant challenges the sufficiency of the

evidence, the reviewing court does not retry the defendant.

People v. Janik, 127 Ill. 2d 390, 401-02, 537 N.E.2d 756, 761

(1989). The jury possessed the responsibility to choose between

competing versions of fact, assess the witnesses' credibility,

draw inferences from the evidence, and decide whether the evi-

dence as a whole ultimately proved defendant to be guilty of the

charged offense beyond a reasonable doubt. See Janik, 127 Ill.

2d at 401, 537 N.E.2d at 761; People v. Anderson, 325 Ill. App.

3d 624, 634, 759 N.E.2d 83, 92 (2001). To avoid intruding upon

the jury's prerogative as the finder of fact, we are to use a

- 33 -
deferential standard of review. See Janik, 127 Ill. 2d at 401,

537 N.E.2d at 761. Thus, looking at all the evidence in a light

most favorable to the prosecution, we address whether any ratio-

nal trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Anderson, 325 Ill. App. 3d at

634, 759 N.E.2d at 92.

A rational trier of fact could have found (1) the first

push sufficiently informed defendant of R.H.'s withdrawal of

consent and (2) defendant did not immediately disengage. It is a

reasonable conclusion defendant wrote all of the letters follow-

ing the September 27, 2004, incident. In these letters, she

confesses wrongdoing, deplores the "scary side" of herself,

admits that she "get[s] mean sometimes," and asks R.H. if she is

going to "send [her] to jail." The jury could have reasonably

inferred defendant knew, from the start, at the very moment of

penetration, she was being "way to[o] rough" and that when R.H.

first pushed her (signifying her withdrawal of consent), defen-

dant already knew she did not consent to this violent manner of

penetration. Because someone had once done the same thing to

defendant (as she revealed in People's exhibit No. 2), defendant

knew she was inflicting excruciating pain upon R.H. and that the

first push meant "Stop!" Nevertheless, she continued ramming her

hand into R.H.'s vagina until R.H. succeeded in pushing her away.

Looking at the evidence in a light most favorable to the prosecu-

- 34 -
tion, I conclude a rational trier of fact could have found the

elements of aggravated criminal sexual assault beyond a reason-

able doubt.

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