The crimes of criminal sexual abuse and sexual assault were once part of the same general crime of “rape” in Illinois. Many jurisdictions still have statutes that officially name the offense ‘rape’, but thanks to a re-write to our criminal code, for a great many years these crimes have been separate and distinct offenses with specific elements which define their differences. Although the penalties differ for each, depending in large part upon the unique and individual circumstances surrounding the offense, each still constitutes some form of rape and a conviction for any such offense could require registration as a sex offender under the law. It is therefore important to understand the differences between the two basic crimes of sexual assault and sexual abuse, as well as their more serious aggravated versions. Mitchell S. Sexner & Associates LLC's Chicago sexual assault and sexual abuse defense lawyers explain.
Sexual Assault in Illinois
Under Illinois law, sexual assault happens when sexual penetration occurs, and either:
- The aggressor uses force or threatens the use of force, OR
- The violator knows that the victim doesn’t understand the nature of the sexual act, or Is not able to give a “knowing” consent, OR
- The victim is related to the perpetrator while the victim is under the age of 18, OR
- The person accused of sexual assault is over the age of 17 while the victim is over 13 but under 18 and the accused is in a position of authority, trust or supervision over the victim
Clearly, the first circumstance of committing sexual penetration through the use, or threat of the use, of force, is what we all traditionally think of as “rape” in the well-known sense, because the victim’s will was overcome by the aggressor through violence. The other situations refer to what was commonly referred to as “statutory rape” in that the victim’s status, as protected by statute, rendered the act of sexual penetration to be unlawful, due to their age, their relationship to the offender, or their mental disability.
The penalty for committing the acts of rape defined as being criminal sexual assault is a Class 1 Felony, which carries a prison term of not less than 4 nor more than 15 years in prison, plus among other things, a lifetime registration requirement on the Sex Offender Registry. However, if one has previously been convicted of a similar crime before the commission of latest one, it is a Class X felony with a minimum 30 years in prison up to 60 years; if one has previously been convicted of an aggravated criminal sexual assault, predatory criminal sexual assault of a child, etc., then it is a mandatory Natural Life in Prison sentence.
Aggravated Criminal Sexual Assault
Although a sexual assault is already a felony in Chicago and across Illinois, it can also be upgraded to a higher, more serious felony class which is called an Aggravated Criminal Sexual Assault under some circumstances including those in which:
- A dangerous weapon was used in the commission of the offense
- The victim suffered bodily harm
- Any person’s life was endangered or threatened
- Sexually assaulted a victim while committing or attempting to commit another felony
- The victim was 60 years or older or had a physical disability
- The perpetrator drugged or administered any controlled substance without the consent of the victim
- A firearm was used during the offense
- A firearm was discharged during the offense
- A firearm was discharged during the offense and someone was harmed or killed as a result.
Again, Aggravated Criminal Sexual Assault is akin to what we used to call “Forcible Rape” or “Aggravated Rape” and as above, it is defined by distinct aggravating factors, but in any set of circumstances, sexual penetration is a necessary element for it to be considered sexual assault.
It is considered an aggravated offense where any dangerous or deadly weapon is involved, as stated above. This means that the weapon must have been brandished or used in an aggressive manner, whether or not the victim was injured by said weapon. It is not enough that the offender merely possessed a weapon during the commission of the forcible penetration. Likewise, it is also an aggravated offense if the victim suffered bodily harm (apart from the act of penetration), such as bruises, cuts, broken bones, etc. during the act. The same goes for administering any controlled substance (commonly referred to as “rape drugs”) without the knowledge and consent of the victim.
Whatever way the crime is committed, this form of rape (Aggravated Criminal Sexual Assault) is a Class X felony, with mandatory prison time of 6-30 years. Using a deadly weapon (other than a firearm) is an additional mandatory 10 years to whatever term would have been imposed by the Judge; to use a firearm adds 15 years, to discharge the firearm adds 20 years, and if you injure the victim, add 25 years. If you kill the victim during the crime, you have felony murder, life in prison, no parole. Lastly of course, the offender must register for the rest of his/her life (once leaving prison) as a sexual predator.
Sexual Abuse in Illinois
Illinois law states that criminal sexual abuse happens when a person commits an act of sexual conduct, as defined by Illinois Law as any knowing touching or fondling of the sex organs, anus, or breast of a victim, whether over or under the clothing, or any part of a child under the age of 13, or transferring semen onto another, for the purpose of sexual gratification of one’s self, or another, and the act of sexual conduct:
- occurs by threat of force or use of force, OR
- the defendant knows that the victim doesn’t understand or isn’t able to give consent for this conduct, OR
- Sexual conduct or penetration occurs with a defendant who is under the age of 17 years and a victim who is also under 17, but over 9 years of age, OR
- Sexual conduct or penetration occurs with a victim is at least 13 but less than 17 years old, and the accused is less than 5 years older.
Sexual intercourse is not necessary for the crime of sexual abuse to be charged, as many other forms of sexual penetration or fondling can also result in sexual abuse charges. Sexual abuse often happens when one party maintains an authority position in the victim’s life. A commonality between many sexual abusers is that they are often in such a position of power, such as teachers, coaches, leaders, clergy, or relatives. In other circumstances, sexual abuse may be what is sometimes considered as “consensual” between two young people (although their ages do not actually allow for the concept of consent). This is sometimes referred to as “statutory rape”. Sexual abuse is a felony where the use or threat of force is involved or where it is a second or subsequent offense. Otherwise, it is a Class A misdemeanor with a 10 year registration requirement as a Sex offender.
Aggravated Criminal Sexual Abuse
When a criminal sexual abuse is charged, but there are other aggravating factors as provided in the Illinois statute, the charge may be upgraded to a higher felony-level offense that is called Aggravated Criminal Sexual Abuse. Some of the aggravating factors which may lead to this enhancement include:
- Using, threatening to use, or displaying a weapon
- Causing bodily harm to the victim
- Victim being 60 years old or older
- Victim having a physical disability
- Threatening or endangering the life of another
- Committing sexual abuse during the course of another felony
- Administering a controlled substance to the victim without consent
- Sexual conduct when the victim is under the age of 18 and a family member
- Sexual conduct when offender 17 or over and victim under 13 years old
- Sexual conduct with a victim at least 13 but under 17 years old and the threat of force or force is used
- Sexual conduct when offender under 17 and victim under 9 years of age
- Sexual conduct when offender under 17 and victim is at least 9 but under 17 years of age and force or threat of force is used
- Sexual conduct or penetration when the offender is at least 5 years older and the victim is at least 13, but under 17 years of age
- Victim having a profound or severe intellectual disability
- Sexual conduct when offender 17 years old or older and holds a position of supervision, authority or trust over the victim who is at least 13, but under 18 years old.
Again, the penalties for aggravated criminal sexual abuse are higher due to the severity of the offense. It is a Class 2 felony, only eligible for probation upon the court’s satisfactory findings based upon a sex offender evaluation. Otherwise, it is 3-7 years in prison and lifetime of registration as a sexual predator.
How a Criminal Attorney Can Help
Facing charges of what used to be called “rape” (but we now call sexual abuse or sexual assault) can be intimidating and confusing. Your first step should always be to contact an experienced criminal attorney to discuss your options. You should make sure to keep records of any forms of communication that you had between you and the alleged victim. A knowledgeable lawyer will be able to formulate a legal strategy to increase your chances for success both in and out of the courtroom.
Contact an Experienced Illinois Criminal Defense Attorney Today
If you are accused or charged with either sexual assault or sexual abuse, you should contact the Chicago sex crime defense attorneys at Mitchell S. Sexner & Associates LLC for more information immediately. Our experienced attorneys are ready to fight for your rights during every step of the complex legal process. Call our attorneys at (312) 644-0444 for a free initial consultation.