dissenting:
I disagree with the majority’s holding that there was no reasonable doubt the intercourse was performed forcibly and against the will of the prosecutrix. Assuming for the moment the validity of the rule of law enunciated by the majority, I will first set forth my reasons for believing the evidence is insufficient in light of this rule. The rule says the uncorroborated testimony of a prosecutrix is sufficient to sustain a conviction for rape if her testimony is clear and convincing (People v. White, 26 Ill.2d 199, 186 N.E.2d 351 (1962)) and, if her testimony is not of such character, it must be corroborated by other evidence (People v. Faulisi, 25 Ill.2d 457, 185 N.E.2d 211 (1962)).
It is not necessary here to reiterate all of the evidence but certain facts must be emphasized. The prosecutrix had numerous opportunities to escape and cry out for help but failed to take advantage of any of them. She claims the two men in the car were strangers and yet instead of walking away she talked to them. Although she had a dime and was in the phone booth, allegedly to call the police, she did not call the police and even, according to her own testimony, went back outside the booth. There was a woman across the street and yet the prosecutrix made no attempt to cry out. She testified the car was a four-door car and the two men were in the front and although she was in the back alone, she apparently made no attempt to get out. When the car stopped in front of the house she made no attempt to run away or cry out. She testified she heard voices in the house and yet again she made no attempt to cry out or run. She undressed herself and for a couple of hours engaged in intercourse. Although she complained of a neck injury, an x-ray of her neck showed no bone damage, although this does not necessarily rule out soft tissue damage. A physicians testimony that her vagina showed signs of recent sexual activity and the existence of a small tear in the vagina wall and some blood is meaningless since defendant admits intercourse and asserts a consent defense.
The majority characterizes the prosecutrix’ testimony as clear and convincing. Their attempt to diminish the significance of the acquittal of defendant’s codefendant is based on the grounds that the prosecutrix was positive in her identification of defendant but readily admitted her difficulty in identifying the codefendant. The fact is in her testimony she did identify the codefendant as her attacker and the jury did not believe her. This is particularly significant here where defendant admitted intercourse with her and asserted a consent defense, whereas the codefendant denied having ever seen the prosecutrix and successfully asserted an alibi defense. Consequently, I am unable to understand how her testimony can be characterized as clear and convincing.
The majority also concludes there is corroborating evidence. They first cite the testimony of Scott Pamliam to show he corroborated the prosecutrix’ claim she had a date with him the evening of the alleged rape. I fail to see how such testimony corroborates the occurrence of the alleged rape. The majority then states the police were notified within- a relatively short time and cites this as corroboration. They attempt to oqplain away the prosecutrix’ lack of promptness in notifying Pamham by arguing that since he was a relatively new acquaintance of hers it was understandable she didn’t complain to him until it was apparent she couldn’t locate her sister. This relatively short time referred to by the majority consists of approximately a half hour and no cases are cited by them in which a complaint a half hour after complainant was with her friend constitutes prompt complaint. The usual reason for admitting recent complaints as corroborating evidence is to repel any inference that because the victim did not complain, no rape had in fact transpired. Failure to complain immediately would not necessarily destroy the admissibility of such evidence but the further removed the complaint is from the opportunity to complain, the more likely it is the contrary inference that the activities were consensual rather than forceful is warranted.
Early in the majority opinion they state the prosecutrix informed her mother of the rape when she arrived home. Later in the opinion when they discuss the existence of corroborating evidence no mention is made of such evidence. They do mention she told Pamham of the rape. The fact is the mother never testified in the case and it seems to be conceded by the majority in the latter part of their opinion by their omission of any reference to a complaint to the mother, that no such complaint was ever made. The testimony of the police officer that the prosecutrix was crying and upset when he arrived at her house is also cited by the majority as corroborating evidence. This can be characterized as tenuous at best. I believe the evidence is insufficient to meet the test applied by the majority but feel it necessary to call attention to the validity of the rule.
In the instant case I consider the evidence as neither clear and convincing nor corroborating. People v. White, 26 Ill.2d 199, 186 N.E.2d 351 (1962), is cited for the rule that tire testimony of a prosecutrix is sufficient to sustain a conviction for rape if her testimony is clear and convincing. White in turn cites People v. Sciales, 345 Ill. 118, 177 N.E. 689 (1931), People v. Freeman, 244 Ill. 590, 91 N.E. 708 (1910), and People v. Andreanos, 323 Ill. 34, 153 N.E. 707 (1926). Each of these cases recites the rule but seems to consider it as an abstract principle. It is worth noting that only in Scidles was the conviction affirmed. Scidles involved the statutory rape of a 15 year old where defendant denied the intercourse. Just prior to citing the rule, the court in Scidles states there was sufficient corroborating evidence to warrant the jury believing the prosecutrix rather than the defendant. In each of the other cases the conviction was reversed and in each opinion the court recited the rule.
In People v. White, 26 Ill.2d 199, 202, 186 N.E.2d 351 (1962), after reciting the rule the court in the same paragraph cited another case, People v. Schiro, 361 Ill. 117, 197 N.E. 535 (1935), for the rule "We have repeatedly held that where a conviction of rape, statutory or otherwise, depends upon the testimony of the prosecuting witness and the defendant denies the charge, the evidence of the prosecutrix should be •corroborated by some other evidence, fact or circumstance in the case.’ ” The two rules cited in White are not compatible. IE the Schiro rule is followed it would make no difference if the prosecutrix’ testimony was clear and convincing. In cases where the defendant denies the charge and the case depends upon the testimony of the prosecutrix, the Schiro rule would require corroboration. After citing these two inconsistent rules the White court reversed the conviction on the grounds of insufficiency of evidence. The recitation of the rule in White, as in the other cases, seems to be merely an abstract exercise with no applicability to the case at hand.
In People v. Andreanos, 323 Ill. 34, 153 N.E. 707 (1926), defendant was indicted for statutory rape and the court in reversing the conviction held it was reversible error to instruct the jury defendant could be convicted of the crime of rape on the uncorroborated testimony of the complaining witness provided the jury believes such evidence is clear and convincing and convinces them of defendant’s guilt beyond all reasonable doubt. The court stated, “While conviction may be sustained on the testimony, alone, of the prosecuting witness if, when considered with all other facts and circumstances on the trial, it is shown to be convincing, it is reversible error in a case where the evidence is conflicting and more than one witness testifies for tire People, to single out the testimony of one of such witnesses as the basis of a verdict of guilty.” (323 Ill. 34, 36-37.) Although it is not mentioned by the court, it’s obvious the instruction suggests two standards of proof, and the mention of a clear and convincing standard in a criminal case would seem to be contrary to the reasonable doubt standard.
In People v. Freeman, 244 Ill. 590, 91 N.E. 708 (1910), which seems to be one of the first Illinois cases to recite the rule, the court reversed a conviction for rape on the purported grounds the testimony of the prosecutrix was not clear and convincing and yet the court discussed the lack of evidence of immediate complaint to her mother. What the court was discussing, without calling it such, was the lack of corroborating evidence.
The rule that the testimony of the prosecutrix alone, if clear and convincing, is sufficient to support a conviction for rape has been cited numerous times as can readily be seen by even a cursory look at cases regarding rape. The problem is the rale cited has not actually been followed. The rule should be, and perhaps is, that the evidence, must be clear and convincing and corroborated in order to satisfy the reasonable doubt standard, particularly in cases where the act of intercourse is admitted and the sole dispute is whether such act was by force or consent.
I submit the present cause should be reversed for insufficiency of the evidence.