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J.M v. Mark Briseno

June 3, 2011


Appeal from the Circuit Court of Cook County, Illinois, County Department, Domestic Relations Division No. 08 OP 1642 Honorable Maureen Ward Kirby, Judge Presiding.

The opinion of the court was delivered by: Justice Cahill

JUSTICE CAHILL delivered the judgment of the court, with opinion. Justices McBride and R.E. Gordon concurred in the judgment and opinion.


Petitioner-appellant J.M. appeals the trial court's denial of her petition for an order of protection under the Civil No Contact Order Act (Act) (740 ILCS 22/101 et seq. (West 2008)) after she was allegedly sexually assaulted by respondent. She contends that: (1) the trial court erred by disproportionally allocating the burden of proof to petitioner, and (2) the court erred in interpreting the Act to require corroborating evidence of sexual penetration, petitioner to testify to her own opinion that she was unable to consent to sexual penetration, and the court to presume petitioner's consent. We reverse.

Petitioner filed for and was granted an emergency petition for a no-contact order under section 214 of the Act (740 ILCS 22/214 (West 2008)) on March 28, 2008. Petitioner then sought a plenary no-contact order under section 215 of the Act (740 ILCS 22/215 (West 2008)).

At the hearing on the plenary order Julian Portillo testified that he was a student at University of Chicago Law School and a friend of petitioner. At 4 p.m. on Friday, February 15, 2008, Portillo and petitioner went to a social event hosted at the law school called "Wine Mess." Portillo had challenged petitioner to a drinking contest. Portillo, petitioner, respondent Mark Briseno, Ben Burry, Derrick Doller and David Cheng drank and played foosball until the Wine Mess finished at 6 p.m. Portillo estimated that he and petitioner each drank about eight bottles of beer during the event. The group left and went to the graduate student pub around 6:20 p.m. Respondent walked with the group to the pub but left and went to the "graduate students' speed drinking." Portillo, petitioner, Burry, Doller and Cheng stayed at the pub and continued drinking until about 10 p.m. Portillo estimated he consumed about 18 drinks throughout the night. When Burry, Cheng, petitioner and Portillo left the pub, petitioner "seemed very drunk" and was acting "erratically." Portillo told Burry he did not think petitioner should be drinking anymore. Petitioner, Cheng and Portillo left the pub and began to walk toward the law school. Burry did not go with the group toward the law school.

On the walk back petitioner fell on the ground twice and cut her hands. Portillo, Cheng and petitioner stopped at the law school to get coffee. Petitioner went into the women's bathroom and was screaming "that she wanted to go home." Portillo and Cheng said they would take her home, but then petitioner said she did not want to leave. Petitioner was crying and screaming and "looked very frazzled compared to the way she normally looked." Portillo answered a phone call and, when he finished, saw petitioner leaving with respondent. When Portillo left the law school he saw petitioner get into respondent's car.

Portillo testified that he spoke to respondent on the phone the next day and told him not to call petitioner anymore because "he had been calling and bothering her."

David Cheng testified consistently with Portillo. He explained that the drinking game he played with petitioner and Portillo involved drinking three beers in the first hour and two beers each subsequent hour. Cheng told petitioner he would try to "stop her at 10 beers" to make sure she got home safe. He had at least seven 12-ounce beers. He said that Portillo and petitioner "always had the same amount of beers."

After the Wine Mess Cheng said petitioner was "fairly inebriated." A group of people went to the graduate student pub. Cheng had about 9 or 10 more drinks at the pub but stopped because he did not "want to lose complete control." Petitioner and Portillo continued to drink beyond that amount. He thought petitioner had about 12 drinks. Cheng said his memory of the events that happened at the pub was intact and he "could definitely remember everything."

Around 10 p.m. Cheng and Portillo decided to walk petitioner home. Petitioner was acting angry because she did not want to be taken home and "was cursing a lot and just completely like a different person." On the walk home they decided to stop at the law school so petitioner could use the bathroom. Petitioner fell down at least once in the street and there was blood on her palms. At the law school petitioner went into the bathroom and refused to leave. Cheng felt frustrated with petitioner's behavior. She was crying and "just saying stuff that really didn't make sense at all; and she was still drunk." Respondent came in and asked where petitioner was and then went into the bathroom to get her. Petitioner left voluntarily with respondent.

Cheng spoke with petitioner on an online instant messenger system ("G-chat") the next day at 4 p.m. He was frustrated with how she acted the night before, so he initially ignored her. She then called about eight times within an hour, and he finally picked up. Petitioner sounded very distraught and was excessively crying. She said she "couldn't remember anything" and asked Cheng what happened. At the end of the conversation, petitioner said "I think I got raped. No, I know I got raped." Cheng told petitioner she needed to go to the hospital to get tested for sexually transmitted diseases and possibly report the case.

Cheng testified that later that evening, he and their mutual friend Alexandra Levy picked up petitioner and went to the hospital. Petitioner looked confused and distraught. They went to the University of Chicago Hospital and were there "all night."

Levy testified that she called petitioner at 6 p.m. on Saturday, February 16, 2008. Something sounded "off" about petitioner's voice and petitioner told her she was going to the "Rape Crisis Center." Levy called the "Dean on Call" at the University of Chicago and the dean called petitioner and told her to go to the hospital. Levy picked up Cheng, then picked up petitioner and took her to the hospital where the dean met them. The dean then "took over" and petitioner was examined by doctors while Levy was questioned by the police. After petitioner's exam, Levy went in to see how she was doing and saw bruises on her legs. On petitioner's right calf there was a bruise that looked like a handprint.

Petitioner testified that she met respondent in a law school class and they were seated next to each other in two classes. They did not socialize outside of class.

Portillo invited her to go "beer-for-beer" at the February 15, 2008, Wine Mess. Cheng was also invited too, and petitioner trusted him and Portillo. Petitioner said she weighed about 100 pounds during the time in question and had not eaten that day. She met Portillo and Cheng at the Wine Mess around 4:15 p.m. and they started drinking beer and playing foosball. Respondent was "lurking around the table area" but petitioner did not speak to him. Petitioner said she drank continuously from the time she arrived at the Wine Mess until 7 p.m and had about seven beers.

Petitioner left the Wine Mess with Portillo and Cheng and went to the graduate student pub, where they continued the drinking game. She still had not eaten and continued to drink from the time she entered the pub until she left two or three hours ...

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