See People v. Roland, 2015 IL App (1st) 131962 (September). Episode 093 (Duration 5:51).

Proving knowing consent in a sexual assault case requires proof that the victim was unable to give consent during the time of the sexual act.

Evidence that the victim experienced a “blackout” may or may not do the job.

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Two convictions for criminal sexual assault were reversed and vacated.

The Facts

Defendant was convicted of two counts of criminal sexual assault, 720 ILCS 5/11-2.0, against a 16 year old victim.

Specifically, the state charged defendant with having sex with a victim who was …

“unable to understand the nature of the act or [was] unable to give knowing consent.” 720 ILCS 5/11-1.20(a)(2). To see a comprehensive list of other Illinois charges go here.

Some of the facts in the case revealed that:

• Defendant was 21 year old
•  Victim was 16 years old
• Victim and 2 other female friends were drinking with Defendant and a codefendant
• 2 bottles of vodka were consumed
• Defendant, victim, and 2 others walked to a store
• On the walk back defendant and victim had sex in a car
• Victim blacked out at some point
• Victim remembers walking to store then remembers waking up in the hospital
• State’s witnesses testified victim was fine on the walk to the store
• State’s witnesses testified victim was fine upon her return from the store

Trial Court Said “Guilty”

The trial court found that the defendant was guilty. The trial court was relying on the blackout testimony from the victim.

Additionally, there was evidence that when the victim’s parents tracked her down in the apartment she was unresponsive and couldn’t walk.

Appellate Court Said “Not Guilty”

The reviewing court took note of the evidence that the victim had no trouble walking and communicating during the walk to the store.

When, the victim reentered the home after the walk, the State’s witnesses again testified that the victim was walking, talking and communicating just fine.

The reviewing court held that the

“[T]he record is devoid of any credible evidence to support the determination that at the time of defendant’s sexual encounter with [the victim], defendant knew [the victim] was unable to give knowing consent.” ¶ 20.

Rationale

The reviewing court noted that the trial court’s conclusion was based on an inference that the the victim was blacked out at the time of the sexual encounter. This inference was based on the victim’s condition sometime after the sexual act.

Given the fact that the victim was walking and talking fine in the moments immediately

• before and
• after the sex act

the trial court had no basis with which to assume that that the victim was unable to give knowing consent of the sex act.

Holding

Yes, Defendant knew she had consumed alcohol. At best the State proved that he knew the victim had relaxed inhibitions.

Without more, this is insufficient to meet the State’s burden of showing beyond a reasonable doubt that defendant knew that the victim was incapable of giving knowing consent.

The trial court accepted the victim’s testimony that she did not remember large portions of the night, including having sex with defendant. The trial court drew from this that she must have been too intoxicated to knowingly consent.

However, regardless of what the victim remembers, the burden remains upon the State to produce credible evidence, beyond a reasonable doubt, that defendant knew or should have known of the victim’s inability to give knowing consent to sexual intercourse at the point in time that the act took place.

The record is devoid of credible evidence to show that the State met its burden.

Defendant’s convictions for criminal sexual assault were reversed.