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People v. Mcmullen

OPINION FILED DECEMBER 3, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MARK MCMULLEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Champaign County; the Hon. HAROLD L. JENSEN, Judge, presiding.

MR. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rape.

Jury found him guilty.

Sentence of 8 years.

We affirm.

On November 20, 1978, the defendant and two other teenage boys had sexual intercourse with the 16-year-old prosecutrix in a small room in Urbana High School. The three boys pulled down her pants, and while defendant McMullen was having intercourse with her, one of the other boys held her hands at approximately the level of her head. She testified that she did not want the boys to have intercourse with her, that she was crying during the incident, and that she told them she wanted to go home. Afterwards, the victim walked several blocks to her home and did not report the incident to her parents or to school officials.

The prosecutrix lived with her father, stepmother, and two younger sisters. She had been enrolled in a special education program for the educable mentally handicapped since beginning school. The stepmother testified that the victim performed such duties at home as vacuuming, dusting, and washing dishes. She could not, however, cook or run a washing machine or use a stove. The stepmother also indicated that the prosecutrix was never allowed to travel by herself or to go to school events alone, had never ridden a bus by herself, and could not find her own way around town. She could not shop alone because she did not understand the value of money and was never allowed to baby-sit because she could not handle a crisis.

The stepmother further testified that the victim's younger sisters (ages 11 and 6) were able to manipulate the victim and get her to do their jobs for them, following even the six-year-old's orders without objection.

The stepmother had spoken with the prosecutrix as many as one or two dozen times in the past year and a half or two years concerning sexual matters. The girl understood the physical part of sexual intercourse and knew where babies come from, but she did not, according to the stepmother, understand the emotional consequences of sexual intercourse or the consequences of having a baby and the effect it has on the mother's life. The stepmother had assisted the victim in obtaining birth control prior to November 20, 1978, but had no knowledge of any sexual activity on her part prior to that date.

Dr. Eva Maurer, a psychologist in the Urbana school system since 1964, testified as an expert witness. In April 1979, she had tested the prosecutrix to determine whether she still qualified for the educable mentally handicapped program. Her IQ scores ranged from 45 to 54, whereas the average range is 90 to 109. That score represented the mental ability of a child beginning the second grade. Her score for social judgment and social reasoning was 2, while the mean score is 10. Dr. Maurer characterized the victim as shy, gentle, and passive, and testified that she was of the opinion that the victim would not comprehend the meaning, circumstances, responsibility, consequences, and nature of sexual activity. Dr. Maurer conceded, however, that the tests she administered do not measure sexual knowledge and awareness.

Section 11-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 11-1(a)) provides in relevant part as follows:

"A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape. Intercourse by force and against her will includes, but is not limited to, any intercourse which occurs in the following situations:

(2) Where the female is so mentally deranged or deficient that she cannot give effective ...


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