APPEAL from the Circuit Court of De Kalb County; the Hon. CARL
SWANSON, JR., Judge, presiding.
MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
After a bench trial, the defendant, Medhi Farrokhi, was convicted of the rape (Ill. Rev. Stat. 1977, ch. 38, par. 11-1(a)(2)) of 19-year-old Angela Waters and was sentenced to a term of six years imprisonment.
The defendant maintains on appeal that the rape statute subsection under which he was charged, proscribing sexual relations with a female who is so mentally deranged or so deficient that she cannot give effective consent to intercourse (Ill. Rev. Stat. 1977, ch. 38, par. 11-1(a)(2)), requires the State to prove a mental state as an essential element of the crime. Thus, he posits that he cannot be convicted of the instant offense unless the State proves beyond a reasonable doubt that he had knowledge of the complainant's mental inability to give effective consent to sexual intercourse and asserts that the State has not met its burden on this issue given the facts of this case. In response, the State argues first that the statutory provision at issue involves an absolute liability offense and hence does not require, as an essential element of the crime, proof of the defendant's mental state at the time of the offense. In the alternative, the State maintains that if the statute requires proof of a mental state, then the State satisfies the general intent requirement where it proves beyond a reasonable doubt that the defendant was merely reckless with regard to ascertaining the mental condition of the victim.
The State's argument that rape is an absolute liability offense is without merit. In pertinent part, section 11-1(a)(2) of the Criminal Code of 1961 provides:
"(a) 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 defective that she cannot give effective consent to intercourse." (Ill. Rev. Stat. 1977, ch. 38, par. 11-1(a)(2).)
Section 4-9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 4-9) provides that absolute liability obtains only if the crime is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or where the statute defining the offense clearly evinces a legislative intent to impose liability for the proscribed conduct.
No such legislative intent is expressed in the statutory definition of rape (Ill. Rev. Stat. 1977, ch. 38, par. 11-1). Furthermore, as our supreme court stated in People v. Gold (1967), 38 Ill.2d 510, 516, cert. denied (1968), 392 U.S. 940, 20 L.Ed.2d 1400, 88 S.Ct. 2317, "[t]he crime of rape is a general-intent crime and does not require the allegation of a specific mental state, as the defendant urges." (See People v. Utinans (1977), 55 Ill. App.3d 306, 315.) Thus, any mental state defined in sections 4-4 (intent), 4-5 (knowledge), or 4-6 (recklessness) of the Criminal Code would satisfy the general intent mental state requirement of the rape statute. People v. Utinans (1977), 55 Ill. App.3d 306, 315, citing People v. Marchese (1975), 32 Ill. App.3d 872, 882; see Ill. Rev. Stat. 1977, ch. 38, pars. 4-3(b), 4-4 through 4-6.
We need not address the State's contention that in the present case it satisfies the general intent requirement where it proves beyond a reasonable doubt that the defendant was reckless with regard to ascertaining the mentally defective condition of the victim, because the record discloses that the particular form of general intent considered by the trial court in reaching its verdict was knowledge (Ill. Rev. Stat. 1977, ch. 38, par. 4-5) and not recklessness (Ill. Rev. Stat. 1977, ch. 38, par. 4-6). Compare People v. McMullen (1980), 91 Ill. App.3d 184.
We turn to the contention of the defendant that the State has failed to prove beyond a reasonable doubt that he had knowledge that the complainant lacked the mental capacity to give effective consent to the act of sexual intercourse. We note here that the question whether the complainant lacked the mental capacity to give effective consent to the act of sexual intercourse is not an issue on appeal.
The defendant is an Iranian national who had lived in this country for approximately two years prior to the incident in question. He testified that he had studied the English language for six years while living in Iran. After arriving in the United States, he studied at Texas Southwest College for two or three semesters. The textbooks used in his course work were written in English, and the courses were taught in English; he received two grades of "A" in basic English and a grade of "C" in an English composition course.
During the late afternoon hours of June 27, 1979, the defendant was delivering newspapers in Malta, Illinois, when he observed the complainant, Angela Waters, sitting in front of her house. When he stopped his car, Angela approached the vehicle, and he handed her a newspaper. She smiled at him, and he believed that this behavior indicated a desire on her part to speak with him. He asked Angela if she wished to speak with him, and she replied in the affirmative. The defendant had never spoken with Angela before. He told her he would return after he completed his work. After completing the delivery of his papers, the defendant returned to the Waters' residence; Angela entered his car, and he again noted that she was smiling. She asked him where he lived, and he responded that he lived in DeKalb. He asked Angela her age, and she informed him she was 19 years old. For 10 minutes the two sat in the defendant's car listening to music, and Angela asked him several times if he was familiar with several of the artists whose records were being played on the radio. Each time he responded that he was not. The defendant then testified that Angela suggested that they go to his residence in DeKalb.
The defendant further testified that after arriving at his apartment Angela did not say much but smiled all the time. The complainant listened to her radio and again asked him if he was familiar with the groups playing on the radio. The defendant put his arm around Angela and kissed her; she returned his kiss. Eventually Angela proceeded to his bedroom and lay down on his bed. He followed Angela there and kissed her; she again returned his kiss and opened a button of his shirt. The defendant stated that he believed Angela was indicating that she wanted to have sex with him. He then helped her take off her shirt, and she removed the rest of her clothes. The defendant related that he removed his own clothing and that Angela told him he didn't have to tell her what to do since she knew what she should do. The defendant and Angela then began to engage in an act of intercourse which the defendant terminated when he noticed that the complainant was bleeding from her genital area. At this time he realized she was a virgin. He stated that she asked him to "do it again" and he refused. At the defendant's request Angela took a shower, and he drove her back to Malta leaving her nearby her house. During the return journey, the defendant asked if he should speak with her parents regarding what had occurred, and she said no. The defendant stated that he conversed with the complainant very little throughout the entirety of the incident in question due to his fear of embarrassing himself with his poor speech of English. He also related that he did not notice anything unusual about Angela's speech during the time he spent with her. Additional evidence in the record indicates that the above events transpired between the hours of approximately 5:30 p.m. and 7 p.m. The defendant was observed leaving the street in front of the Waters' house with Angela around 5:45 p.m. and was seen again in Malta at 7 p.m. when he dropped off Angela.
The defendant also testified that he did not speak very often with people other than his Iranian friends but admitted he had spent a short time one day with an American woman in DeKalb. When he went to lunch with fellow Iranians, they ordered for him at restaurants. He rarely went anywhere without his friends and took the job delivering newspapers so that he would not have to talk to anyone. He further related that when he applied for the newspaper job, ...