dissenting:
I respectfully dissent from the opinion of my colleagues. While I agree with the majority regarding the instruction’s issue, I cannot agree that the State proved the defendant guilty beyond a reasonable doubt. I believe the judgment of conviction should be reversed.
While the majority states that the standards to be applied are similar to those in rape cases, I believe the standards are not just similar, but are the same. By relying on People v. Secret (1978), 72 Ill. 2d 371, 381 N.E.2d 285, a case involving rape, the majority impliedly agrees. According to the applicable standards set forth in Secret, testimony of the complainant must either be corroborated or be clear and convincing. I believe neither was true here.
Although the majority relies on People v. Secret (1978), 72 Ill. 2d 371, 381 N.E.2d 285, I believe examination of the language and reasoning adopted in Secret supports my position. Initially, I would note that Secret is a “corroborating” case as opposed to a “clear and convincing” case and as will appear, the present case falls within the latter category.
In Secret, the complainant’s testimony was corroborated by the condition of the complainant’s clothing, by the defendant’s admissions to police, and by reporting the incident immediately after leaving the defendant’s apartment, the scene of the rape. Furthermore, there was medical evidence that intercourse had taken place and the defendant did not testify and explain his version of the facts. The court considered that the complaint was made as soon as was practicable. In this regard, the court noted that the question was not whether the complaint would qualify as a spontaneous declaration, as to which some immediacy may be required, but whether it qualified as a corroborating statement.
“The significance of the latter rests upon the assumption that a victim of a rape would naturally speak out concerning it, and the purpose of its admission into evidence is to negate the presumption that would otherwise arise that no rape had in fact occurred.” 72 Ill. 2d 371, 378, 381 N.E.2d 285, 288-89.
Turning to the first part of the applicable standard, under the present facts there is a total absence of corroborating evidence. No medical testimony was available to confirm that defendant ejaculated on the complainant’s back. There was no evidence of bruises or similar corroborating factors indicating a struggle had occurred, even though at one point the complainant testified the pressure on his throat was so great he was having trouble breathing. According to the complainant’s testimony, he was able to turn onto his stomach. At such a time no physical restraint existed to prevent the complainant from yelling for help and since no dangerous weapon or weapons of any sort were used, the threat of serious injury was nonexistent. Yet, despite this and the nearby presence of other dormitory residents at an hour when many were certainly awake either studying for finals or preparing to take an exam, the complainant did not cry out.
After the defendant left the complainant’s room, the complainant could have walked down the hall and informed the RA (resident advisor) of the attack. There was no direct impediment to prevent the complainant from doing so, for the crowded morning hours at a dormitory during finals and the nearness of university authority in the form of a floor resident advisor eliminated any question of defendant’s preventing complainant from immediately complaining about the incident. Even under Hawkes’ version, after the episode was over defendant allegedly said, “You better not tell anyone about this because it will look bad for me,” meaning defendant. Hence, even according to Hawkes’ testimony, defendant did not threaten complainant with reprisal for telling anyone.
Instead of reporting the incident immediately, the complainant chose to take a shower, go to breakfast, take an exam, and only then report the incident to the RA on his floor, if in fact he did make such a report. According to the complainant, after talking to the RA on his floor, he eventually talked to a number of people including the head RA at Hursh Hall, the advisor of another men’s dormitory, and finally, someone at “Public Safety.” Yet, there is no evidence to corroborate that any of these reports were actually made. While I cannot agree with the majority that a report made as indicated by the complainant is made as soon as practicable, more importantly, there is no evidence corroborating the complainant made the various reports as he testified to. Hence, not only do I question the soundness of the majority’s conclusion that a report made as testified to by Hawkes was sufficiently prompt, I question the very premise that such a report was ever made on the day of the alleged assault. In summary then, apart from the defendant admitting to being present in the complainant’s room, there is absolutely no evidence corroborating any aspect of the complainant’s testimony and certainly no evidence corroborating the existence of the commission of a crime. Hence, defendant’s conviction is sustainable, if at all, only if the complainant’s testimony is clear and convincing. I do not believe the complainant’s testimony achieves that standard, as an examination of his testimony will reveal. While the foregoing discussion was directed toward the lack of corroborating evidence, much of what was said also undermines the credibility of the complainant.
The clear and convincing standard is not a quantitative measure of the proof required to sustain the conviction, which remains proof beyond a reasonable doubt. Rather, when clear and convincing is applied to the uncorroborated testimony of a complainant, such testimony having been controverted by the defendant, it refers to a certain qualitative value of that testimony. The testimony must have some internal strength or quality which supports its credibility or truthfulness in the face of an uncorroborated equally positive denial of the same facts.
Mere assertion alone in the face of an equally positive denial furnishes no basis for concluding the assertion should be believed and its contradiction disbelieved. There must be something more in the quality of the assertion to justify its believability. This is particularly true in a case of this kind where the defendant not only denies his commission of any offense, but is unable to prove affirmatively the nonoccurrence of the offense.
After testifying to studying all night and having been awake for 23 hours, the complainant stated he lay down at 6 a.m. intending to wake himself in time for an 8 o’clock final without the aid of an alarm clock. At 6:45 he claims defendant awoke him with an offer to perform fellatio on him. After the complainant indicated to defendant he thought he was joking, the defendant is alleged to have said he was quite serious and then knelt on the bed and placed his forearm on the complainant’s throat. While holding the complainant down with a forearm on his neck, the defendant with his free hand unbuckled the complainant’s belt buckle, unzipped his blue jeans, pulled down the jeans to his knees, and pulled his underwear down, all without the complainant’s assistance. During the incident, complainant managed to roll over onto his stomach. According to Hawkes, the only thing holding complainant down at this point was. defendant’s weight. While the defendant’s size or weight does not appear from the record, the complainant was six-feet one-inch tall and weighed 165 pounds and a man of such stature was far from being helpless. When complainant was on his stomach with defendant on top of him, the complainant was free to shout or yell for assistance, a tactic which surely would have yielded prompt results in the close quarters of a men’s dormitory at 6:45 a.m. Even while complainant was being restrained with a forearm on his throat and the defendant was allegedly unbuckling the complainant’s belt and pulling down his pants with his free hand, complainant’s hands were free to exercise a variety of defensive tactics. Yet, the complainant admitted that at no time did he kick, hit, bite or scratch his alleged assailant. The complainant did not cry out despite the immediate proximity of others in their dormitory rooms.
In my opinion it strains the bounds of incredulity that an attack on a six-foot one-inch, 165-pound college-age male could occur in the manner testified to by the complainant. I cannot agree with the majority’s position that such a state of facts constitutes clear and convincing evidence.
The record reveals a possible motive for fabrication of the incident. According to the record, the complainant was not doing well in the course in which the final examination was to be given that morning. Claiming that an incident took place at the time referred to by the complainant might well have been the basis for seeking and receiving a new examination in the event of a poor showing. Indeed, some of the events are more consistent with fabrication than otherwise. The lackadaisical and leisurely reporting of the claimed incident, as well as the other circumstances, are inconsistent with the conduct of an outraged victim.
Matters of credibility and the weight of the evidence are indeed primarily the domain of the trier of fact, but they are not its exclusive domain. When, as here, the evidence incriminating the defendant is totally uncorroborated and the testimony of the complainant falls far short of being clear and convincing, questions of fact no longer exist for the jury to consider and it becomes the duty of the court to remove the case from the jury by entering a directed verdict of acquittal. I believe the trial court erred in failing to do so, and defendant’s conviction should be reversed.