Appeal from the Circuit Court of Lake County; the Hon. William
D. Block, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
On March 8, 1983, the circuit court of Lake County found defendant, Connie Downey, had violated the terms of his probation by committing the offense of intimidation (Ill. Rev. Stat. 1981, ch. 38, par. 12-6(a)(5)). He was subsequently sentenced to three years with the Department of Corrections on each count concurrently.
The defendant appeals contending that his conduct did not legally amount to intimidation. Alternately, defendant contends that the State's proofs were insufficient to establish his guilt of intimidation by a preponderance of the evidence.
Defendant was originally placed on 30 months' probation on July 20, 1982, having pleaded guilty to certain possession of narcotics charges. The State's amended petition for revocation charged defendant with rape, intimidation and harassment by telephone. As to the harassment charge the court directed a finding for the defendant; found him not guilty of the rape charge; but found that defendant had violated his probation by committing the crime of intimidation.
During mid-1982 defendant and victim, Marianne Jacobson, a married woman, carried on a sexual liaison. After September they remained just friends. In early December the victim in a telephone conversation advised defendant that her husband and daughter would be away on vacation at the end of the month. At 1:30 a.m. on December 29, 1982, defendant appeared at her home desirous of resuming the sexual aspect of their relationship. Jacobson declined, advising defendant that she was desirous of making her marriage work. Defendant told her he would force her to continue; that if she did not, he would tell her husband of the activities with him; and, that he would bring over friends and family in support of his revelations. Jacobson feared he might hit her. She accompanied defendant to her bedroom.
In the bedroom she again told him that she had ended the affair because of her desire to preserve her marriage as opposed to "some fault" on his part. Defendant said he understood, but in response to her inquiry, "Then you won't force me through this?" replied, "Well, I'm already here."
Upon completion of the act she asked if he was going to come back and tell her husband. He replied in the negative. The next day after working a full shift, she reported the incident to the police. On cross-examination Jacobson admitted that she lay next to him for about five minutes and conversed, and that she did this voluntarily.
Defendant, on his own behalf, testified that he came over on the invitation of Mrs. Jacobson; that the act was mutually anticipated, consummated, and appreciated. Defendant claimed that they thereafter argued over money he had borrowed from her. She threatened to harass him, and he responded that if she did her husband would likely find out about their affair.
The court expressly found that it considered most of the victim's testimony to be credible, and that defendant's testimony was "not credible."
The court revoked defendant's probation and sentenced him to a term of three years' incarceration with credit given for time served while on probation.
Defendant contends that the threat allegedly made to expose their affair to the victim's husband is not the type of "threat" proscribed under section 12-6(a)(5) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12-6(a)(5)). Section 12-6(a)(5) provides:
"Sec. 12-6. Intimidation. (a) A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority of the following acts:
(5) Expose any person to hatred, contempt or ridicule; * * *."
Defendant adopts a position that a threat to reveal the truth regarding another person, which threat does not amount to a civil tort in the nature of libel, slander, or invasion of privacy is not actionable under section 12-6(a)(5) of the Criminal Code of 1961. He supports this by relying on Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, rev'd on other grounds sub nom. Boyle v. Landry (1971), 401 U.S. 77, 27 L.Ed.2d 696, 91 S.Ct. 758. That court reviewed section ...