"A MALE person of the age 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape."

This definition from the Illinois Criminal Code of 1961 is an updated version of the English rape statute of 1576. On July 1, when the Illinois Criminal Sexual Assault Act takes effect, every phrase will be obsolete. There will be no gender stipulation, no age limitation for crimes against adults, no separate crime for heterosexual intercourse, no marital exemption for the Class X offense and no "rape."

The first major sex crime revision since Illinois became a state, the new law follows a nationwide trend toward rape law reform. According to a 1980 study conducted for Rutgers Law School, over 40 states have passed rape reform legislation since the early 1970s, with 32 states instituting comprehensive penal code reform similar to the Illinois Criminal Sexual Assault Act.

One explanation for the trend is that laws have been updated to incorporate information on the nature of sexual assault which has emerged during the past decade. Most revised sexual assault laws replace traditional rape statutes with gender neutral laws carrying varying degrees of penalties according to the violence of the act and the vulnerability of the victim.

The major objective behind rape law reform is to increase the number of convictions. Drafters of the Illinois bill believe that, with the current rape laws, too few sexual assault cases are successfully prosecuted in the criminal justice system. Their remedy for this failure is statutory uniformity for sex crimes and more flexible sentences.

The originators of the new Illinois legislation also believe that sex offense statutes are unfair to victims and do not reflect the reality of the crime. According to reformers, the traditional sex offense laws are based on outdated notions about rape and other forms of sexual violence and abuse. According to Rep. Aaron Jaffe (D-56, Skokie) the sexual assault bill's principal sponsor, courts can achieve a greater number of convictions if the laws address the actualities of crimes. "If we're going to pass laws we need to pass realistic laws, not for public relations or as a knee-jerk reaction to our constituents. We need to reflect the world as it is."

The new Illinois Criminal Sexual Assault Act removes seven crimes from the "Sex Offenses" section of the criminal code and adds four to the "Bodily Harm" section (see chart).

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It is a sweeping change in the state's criminal code, a code known for its strength and effectiveness. These changes also required 27 relevant statutes to be amended to conform with the terminology of the new law. Extensive criminal code revision is a difficult and cumbersome process, one that Peoria County assistant state's attorney described as "opening a Pandora's box" because of the potential problems involved. Removing the old sex crime definitions from the criminal code also means destroying a long history of case law. Resistance to the new sexual assault act came from legislators and criminal justice professionals in part because of the difficulties involved extensive statutory change. Some believe that the current statutes should have been amended rather than wiped out completely.

The originators of the revised legislation, however, found fault with the basic structure of the sex offense statutes as they now stand. One of the bill's drafters, Julie Hamos of the Cook County State's Attorney's Office, described them as "fragmented, inconsistent, illogical, outdated and incomplete." A major inconsistency cited by Hamos is in the elements required for a Class X felony. The three current Class X sex crimes — rape, deviate sexual assault and aggravated indecent liberties with a child — carry three different requirements for proof of force, and the greatest amount of force is required when the victim is between the ages of 9 and 12.

The act repeals eight laws described by Senate sponsor Dawn Clark Netsch (D-4, Chicago) as a "hodgepodge." Two of these laws define crimes against adults (rape and deviate sexual assault) and are Class X felonies; one simply defines deviate sexual conduct; and five define crimes against juveniles (indecent liberties with a child, aggravated indecent liberties with a child, contributing to the sexual delinquency of a child, aggravated incest and sexual abuse by a family member) with penalties ranging from a Class A misdemeanor to a Class X felony.

The new law divides sex crimes into two basic types of offenses: criminal sexual assault and criminal sexual abuse. Sexual assault is forcible sexual penetration, including both heterosexual and homosexual assaults. It also includes penetration with an object, which is not covered under current laws. Sexual abuse is forcible sexual contact, including attacks that fall short of intercourse.

If specified aggravating factors are present, the assault or abuse becomes a more serious offense. For example, a defendant may be charged with aggravated criminal sexual assault or aggravated criminal sexual abuse if he or she used a weapon or caused great bodily harm to the victim. The four crimes under the sexual assault act range from a Class X felony (aggravated criminal sexual assault) to a Class A misdemeanor (criminal sexual abuse).

Each of the four penalty classifications contains criteria for both crimes against juveniles and crimes against adults. Sex offenses committed by adults against children are included in the aggravated crimes whether or not force was used. Incest is a Class 1 felony (criminal sexual assault) or a Class 2 felony (aggravated criminal sexual abuse). The crime commonly described as "statutory rape" is a Class A misdemeanor.

The word "rape" appears nowhere in the new law. Although commonly used for all forcible sex acts, the term's stricter meaning applies only to heterosexual intercourse. Drafters of the bill thought it illogical and outdated to separate intercourse from other acts involving the sex organs, and used instead the broader term "sexual penetration.

'If we're going to pass laws we need to pass realistic laws, not for public relations or as a knee- jerk reaction to our constituents. We need to reflect the world as it is' — Rep. Aaron Jaffe

" Striking the word "rape" from the criminal code, however, has caused apprehension since it means that no reference to "rape" can be used in the Illinois statutes or in Illinois courts.

The new law allows for prosecution in instances not currently covered, such as cases involving a defendant under age 14 and an adult victim and cases involving object/genital penetration. Whether or not the new law can achieve its major goals — clearing up statutory inconsistencies, increasing convictions and aiding victims — is still being debated. Since the law has yet to be tested in the courts, its effectiveness can only be speculated.

Hamos cites another purpose behind the reform: education. Drafters of the bill intended to increase awareness of sexual assault issues among the legal profession and the general public. "If everyone up and down the criminal justice system has to read the new laws and rethink the theories, attitudes will change."

House Bill 606

When Illinois legislators received the 80-page criminal sexual assault act, House Bill 606, in the spring 1983 session, they were not strangers to rape reform. Most legislators readily understood the complexities of the document, and the majority supported the bill. "We've been educating legislators for 10 years," said Francine Stein, executive director of the House Rape Study Committee since its inception in 1973.

Although the Rape Study Committee started out, according to Stein, as "the dirty joke of the General Assembly," its measures are now respected and well-received. The committee initiated the rape shield law, the Rape Victim's Emergency Treatment Act and other legislation benefiting victims of rape, incest and child sexual assault. Proposals to alter the content and structure of the sex crime laws, however, were always voted down or vetoed, but none of these past attempts were as thorough as H.B. 606.

H.B. 606 was originated by members of the National Organization for Women (NOW) and the Illinois Coalition of Women Against Rape (ICWAR). They solicited the help of Julie Hamos and formed an ad hoc group to discuss possible changes in the sex crime statutes. After studying the Illinois sex offenses and revised laws from other states, they gathered in Springfield in the spring of 1982.

"When we sat down last June," Hamos said, "our goal was not to overhaul, it was to cement. We couldn't do it." After "raging debates" over what they felt the elements of a sexual assault crime should be, the group wrote the first draft. That fall, they took their seventh draft to the Rape Study Committee to begin writing the bill.

Members of the original group joined with members of the committee to draft the bill. The core group of about 10 people brought in approximately 20 criminal law experts. "We thrashed the whole thing out with ICWAR, NOW and adversaries," said Stein. "It was like running it through a many layered sieve."

The bill was introduced into the House last March, and after two months and six amendments, it passed by an overwhelming majority. In the Senate, there were philosophical disagreements over the issues and technical concerns over possible loopholes in the lengthy and complex document. Representatives of the Illinois State Bar Association (ISBA) pointed out some potential problems in the bill, and worked with the Senate Judiciary Committee on amendments to clarify definitions and redefine some of the terms of the crimes.

The process, according to Sen. Netsch, "ended up taking more time than any of us realized. It went through tons and tons of subcommittee hearings." After nine hours ia Judiciary Committee, the bill reached its third reading in the Senate, and ISBA members and legislators stated that most of their original concerns had been cleared up.

Sen. Prescott Bloom (R-47, Peoria), a member of the Judiciary Committee, sent a copy of the amended bill to his local prosecutors, who pointed out loopholes due to the elaborate amending and the process of creating what Sen. Bloom termed a "wholesale shake-up of sex crimes." Bloom described ambiguities and gaps created during the amending process, commenting that "this thing is like a giant marshmallow; you push here and it kind of comes out there."

At 9:30 in the evening of June 27, after an hour's debate, the bill was voted into conference committee. The expectation was that it would be studied throughout the summer and amended during the next session. Four days later, H.B. 606 was back in the Senate chambers. Sen. Bloom's specific concerns were corrected, but the most significant change was in the effective date, changed to July 1, 1984 — exactly one year from the date H.B. 606 passed the Senate 50-1.

It appeared that the strategy for passage was to send the bill to the governor with a delayed effective date. The governor could sign the bill knowing there was time for further study and amendments. Instead, after conferring with the Department of Law Enforcement and others concerned with the bill, Gov. James R. Thompson drew up a seven-page veto message containing both technical and substantive amendments.

Most of governor's changes dealt with language and structure, and did not alter the substance of the bill. For example, when the bill reached the governor's desk the aggravated crimes were listed before the basic crimes, a contradiction to standard form. According to Sen. Netsch, this placement was retained in the General Assembly so that the Class X crimes would be more prominent to those who opposed assigning the lesser sentences. The governor arranged the crimes according to standard form.

More substantive changes included deleting the word "coercion" from the definition of force and the section on defenses, and altering the provision on sexual assault charges between spouses. These changes disturbed women's groups who intended the word "coercion" to apply to certain forms of psychological force, and who found the marital rape clause narrowed by the amendments. There was, however, little controversy during the fall 1983 veto session when the governor's amendments were approved, and H.B. 606 passed into law.

A little rape

The new law goes into effect July 1 and will remove Illinois from the small minority of states with a single penalty classification for rape. Most states have "staircased" their sexual assault laws, creating gradated offenses so that more cases can end in sexual assault convictions. As Leigh Beinen, a New Jersey lawyer, wrote in an article published by Rutgers Law School, "Juries are reluctant to convict when the penalty is as severe as the penalty for murder."

With the new Illinois Criminal Sexual Assault Act, forcible sexual pentration of an adult may be tried as either a Class 1 or Class X felony. If the aggravating factors cannot be proven, the penalty for rape would be lower than

'Rape is like pregnancy. There's no such thing as a little rape or a little pregnancy. It's a serious crime' — Sen. Adeline Geo-Karis

under current laws. Prosecutors in Peoria County protested the possibility of reduced penalties for sex crimes. In a letter sent to legislators before H.B. 606 was voted on in the Senate, the Peoria County State's Attorney's Office listed a number of objections to the bill, including the fact that it would make some rapes "only as serious as residential burglary" in terms of sentencing.

Proponents of the new legislation argued that many rape cases either are not accepted for prosecution or are plea bargained to a lesser charge, such as assault or battery. Polly Poskin of ICWAR, an umbrella agency for Illinois' 18 rape crisis centers, believes that the Class 1 offense could be used for "acquaintance rapes." Said to be the majority of rapes, cases in which the assailant and victim knew each other seldom make it into the criminal justice system, according to Poskin. Other borderline cases may be accepted for prosecution, then lowered to a nonsexual offense in exchange for a guilty plea.

If a rapist is convicted of an assault or battery charge, not only is the sentence lower, but that person cannot be identified as a sex offender. It is sometimes necessary to identify and trace convicted rapists through a central registry, which is not possible if their criminal charge is identical to that of persons involved in barroom brawls. Under the new law, supporters claim, the accused could be convicted of the crime he or she actually committed.

Downstate prosecutors, however, have stated that while the practice may be common in Cook County, their cases are seldom plea bargained down to assault or battery. Peoria prosecutor Straub believes the law may have been unfairly changed to benefit a small portion of the state. Sangamon County State's Atty. G. William Roberts said, "This may be a trade-off. Cook County has a shot at more convictions, and we get a few reduced sentences."

General Assembly debate over the staircase structure of the new law centered primarily on the theoretical aspect of the issue: Is it realistic and fair to classify sexual assaults by varying degrees of seriousness? Many believed as Sen. Netsch expressed, that "there really are different gradiations of rape." Others believed that there is no such thing as a lesser rape. "As far as I'm concerned," stated Sen. Adeline Geo-Karis (R-31, Zion) during the bill's second reading, "rape is like pregnancy. There's no such thing as little rape or a little pregnancy. It's a serious crime."

Against her will

Another significant change affects the victim. Deleting the words "against her will" from the Illinois rape statute "takes the onus of the crime off the victim," according to Rep. Jaffe. Suporters of rape law reform claim that having to prove the victim's lack of willingness creates undue trauma to a victim on the witness stand. An example is a case in New Bedford, Mass., during the summer of 1983, in which 21-year-old woman was gang-raped in a tavern. According to newspaper reports of that trial, much of the testimony focused on the victim's behavior before the rape took place, rather than on the amount of force used and whether she consented to the specific act in question.

Rep. Jaffe pointed out that concern for the victim in a rape trial is both humanitarian and practical. Appearing as a complaining witness, Jaffe explained, is difficult, particularly for a rape victim. If the complaining witness (victim) is under additional stress due

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to the line of questioning, neither the prosecution nor the defense is likely to receive good testimony. "We can't convict properly unless we worry about the witness," Jaffe said. Reformers believe that prosecutors should have to prove that the defendant used force rather than prove that the victim resisted. However, since lack of consent is an element of the crime, the burden of proving the consent question then shifts from the prosecution to the defense. The American Civil Liberties Union (ACLU) and the ISBA contested this change in the consent defense, arguing that it violates due process. "Against her will" implies , lack of consent. Without that phrase, the defendant would have to prove that the victim consented to the sexual encounter instead of the prosecutor having to prove that the victim did not consent. ACLU legislative representative

Nancy Bothne stated that since the ISBA worked with legislators to improve the bill's section on defenses, she no longer disagrees with the constitutionality of the law. Even though a clause in the new law provides specifically for a consent defense, there is still a question of where the burden of proof will lie. Roberts, who is the current president of the Illinois State's Attorneys Association, said that lawyers are still puzzling over what will happen to the consent defense under the new Criminal Sexual Assault Act.

Not his wife

Under the original draft of H.B. 606, charges involving married couples would have been treated no differently than charges involving strangers. If it had passed as originally written, Illinois would have joined the 18 states that have removed the marital rape exclusion from their sex offense statstatutes. Supporters claim that laws in states allowing for spousal rape charges have primarily been used to protect battered women.

Whether or not the reform bill should inclusion a provision allowing a spouse to be charged with rape was an emotional issue during the General Assembly debates. Some felt as Rep. Kathleen Wojcik (R-45, Schaumberg) did: "I not believe that, once you take the marriage bond, a wife can claim ape."

There was also fear that the law would be abused with vindictive accusations made by husbands and wives. The House Judiciary Committee added an amendment to prevent sexual assault charges from becoming factors in divorce property settlements, and requiring that charges against spouses be reported within 30 days. Further restrictions were added in the Senate. Even with a reduced number of

'I do not believe that, once you take the marriage bond, a wife can claim rape' — Rep. Kathleen Wojcik

instances for which it could apply, the provision was protested. Senators feared it would be used for blackmail between estranged spouses.

Under the scrutiny of Gov. Thompson and his advisers, the spousal clause underwent further changes. The governor proposed in his veto message that "the confusion and potential abuse of the provision be eliminated by simplifying and streamlining the language." It was streamlined by eliminating the restrictions proposed by the Senate, and by limiting sexual assault charges to the most serious offense, aggravated criminal sexual assault.

Although feminist groups were disturbed by the restrictions, Sen. Netsch said that compromises with this aspect of the bill may have been necessary. "We didn't want to stand so firmly behind it that we blow the whole package."

The age factor

Using the victim's assumed vulnerability as a factor in the crime, the new laws have added more severe penalties if the victim is under 13 or over 60. The over-60 factor is additional to the factor of force in determining the severity of the crime; with young victims, force is not necessary to classify the assault as carrying a severe penalty. The reasoning behind assigning greater penalties in these cases is that less force need be used to carry out an assault. Similarly, if the victim is unable to understand the nature of the act, force is not a mandatory element of the crime.

Both the age of the victim and the age difference between victim and accused were considered in determining the severity of the crimes. Adjustments made with these considerations in mind left a gap at one point during the legislative procedures in which there was no crime for sexual intercourse with a 12-year-old if the perpetrator was a juvenile. The gap was closed in Senate Conference Committee.

The new law also changes the treatment of both offenders and victims who are juveniles. Juveniles can be tried for a Class X sexual assault felony, with convictions remaining on their records after they become adults. Other changes permit hospitals to treat and collect evidence for sexually assaulted minors without parental consent and make it easier to allow minors to testify in court.

After July 1

Everyone involved with passage of the criminal sexual assault bill agrees that it represents a tremendous amount of work and compromises. The work and compromises have not, however, come to an end. The Illinois Criminal Sexual Assault Act, as it reads now, may not be the same set of laws entering the courtrooms after July 1. It is possible that the upcoming legislative session will debate additional amendments to the new law since copies of the bill as passed last spring were sent to each state's attorney and circuit court judge in Illinois.

Ultimately the Illinois Criminal Sexual Assault Act will be tested and defined and its effectiveness measured. "The best law in the land is only as good as the people prosecuting," said Polly Poskin, one of the drafters of the bill. "What we hope to provide is a good foundation."

Katherine Lawson is a Springfield-based free-lance writer. She has degrees in literature and communication from Sangamon State University, and in 1980, was public information officer for the Rape Information and Counseling Service in Springfield.

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