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05/30/95 J.S. v. J.S.

May 30, 1995


Appeal from the Circuit Court of Cook County. Honorable Charles S. May, Judge, Presiding.

Presiding Justice Scariano delivered the opinion of the court: Hartman and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Scariano

PRESIDING JUSTICE SCARIANO delivered the opinion of the court:

Following an adjudicatory hearing, respondent J.S. was adjudged a delinquent, based on aggravated criminal sexual assault and was committed to the custody of the Illinois Department of Corrections. On appeal, he contends that the trial court erred in denying his motion to introduce evidence of his prior sexual activity with the complainant under section 115-7 of the Code of Criminal Procedure. 725 ILCS 5/115-7 (West 1992).

The State's evidence consisted of testimony by complainant, S.L., that on June 18, 1991, she was walking to school with a girl friend when respondent and his friend, R.W., approached them. Complainant tried to run away, but respondent grabbed her arm and she told him to release her. Instead, he twisted her arm over her head and R.W. pulled her "across the street by [her] legs." When she tried to kick in order to break loose from J.S. and R.W., respondent warned her that he could break her arm. As respondent continued to twist and hold her arm above her head, she was dragged into a house while respondent's brother opened the door to the house to let them in. Inside the house there was a fourth boy, B., but when they saw respondent's uncle, S.L. was pulled to another room by her arm and wrist. When they encountered respondent's brother who was sleeping in the room, respondent dragged the complainant to the attic, again by her wrist and arm, and he pushed her down on a mattress which was on the floor. When the complainant stood up, she was pushed down. While respondent's three friends were standing by the door, respondent, who was naked from the waist down, pulled the complainant's pants and underpants off while she kept repeating, "No." She tried to pull her clothes back, but he pushed her down on a mattress and kept repeating to her, "It's going to take two minutes, and you can go to school."

After respondent had sexual intercourse with the complainant, he got up and called to one of his companions, "Come on, Jermaine. It's your turn." Jermaine then entered the room, naked below the waist, and told the victim, "You ain't fitting to go nowhere." He then pushed her down on the mattress and raped her.

After Jermaine left the room, R.W. entered and undressed and had sexual intercourse with her while respondent and his two other friends stood by the door laughing.

After having intercourse, respondent told the complainant to dress and return to school. When the she left, her pants were ripped, her hair was in disarray, her blouse was not completely tucked in, and her shoes were not completely on her feet.

Respondent testified that after he and R.W. joined the victim and her friend as the latter were walking towards respondent's house, complainant agreed to stay at his house until school started. Respondent had known the victim for two years and they attended the same school. He also testified that the complainant had been to his house on two or three previous occasions and that he had been alone with her at her house and his house more than ten times. Respondent further testified that he and the complainant entered through the front door of his house because his uncle was standing at the back door; that he urged her to go with him "somewhere private"; and he described how they had to go to several rooms before they were settled.

Respondent continued: He and the victim began talking when they reached the attic, and he asked whether she would have sexual intercourse with him, and her response was, "OK." He further stated that he took his own clothes off and then removed the complainant's pants and underpants, which she had pulled down to her knees. He admitted that he had sexual intercourse with her for two or three minutes, and stated that neither struck the other physically.

Respondent further stated that while he was having sexual intercourse with the complainant she asked the whereabouts of Jermaine. Accordingly, he testified, he went downstairs and told Jermaine that the complainant had asked about him, after which respondent sat on the couch with R.W. and B. until the complainant came downstairs. He then let the complainant out through the front door and she went to school. Respondent and R.W. left the house approximately five minutes later.

In finding respondent and R.W. delinquent, the court stated that the case was a serious one because it was not one of two young people experimenting with sex and getting caught at it, but that it was a case where force was used. The court further remarked, "Two other people also had sex with this young lady, and he is going to suggest to me that a 12-year-old, one was an adult, that the 12-year-old came in and allowed all of that, looked for it?" Respondent alone appeals.

Prior to the adjudicatory hearing, respondent filed a motion to introduce evidence of prior sexual conduct between complainant and himself. At the hearing on the motion, respondent testified that he "had sex" with the victim three times, including the incident involved in the instant case. He claimed that the first sexual encounter was in the middle of April 1991 in his basement at 1330 West 72nd Street in Chicago between 10 and 11 p.m. The second occasion was two to three weeks before the charged offense took place when the two had sex in a friend's back yard garage at 72nd and Bishop in Chicago after school at about 3 p.m. On both prior occasions, respondent testified that both agreed to the sexual activity.

In response to respondent's offer of proof, the State argued that consent was not relevant to the charge before the court; that complainant would deny the prior sexual conduct; that the testimony was not specific as to the dates so as to satisfy the requirement that they be "reasonably specific"; and that there were no facts presented showing that the ...

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