good morning welcome everyone the first case on the call the doc today wednesday november fourth two thousand and twelve scuse me as a general number six case number one one three five one zero people versus terry lloyd chief justice may it please the court counsel to mourn your honors my name is ryan wilson i'm the tourney with the office of state a public defender and i represent the defendant opponent terry lloyd in this cause the state charged mr lloyd with criminal will assault pursuant to subsection twelve dash thirteen eighty two of the only criminal code as a result the state bore the burden of establishing that mr lloyd committed an act of sexual penetration upon p v and at that time knew that she did successfully met the knowledge element of the statute by status showing that mr lloyd allegedly knew that peavy was a minor at the time of the the sexual penetration however that position is inconsistent with the way the statute has always been interpreted by the courts is inconsistent with the statutory structure of legislature has put together for the criminalization of sex offenses and for that reason the state's position must be rejected the cases that have examined the knowing element of the statute have really looked at one central issue and that is whether there is a condition of which the victim suffers that causes the victim the victim's ability to give effective consent to throttled traditionally those conditions have been things like the victim was intoxicated the victim had a mental impairment something of that nature and even when the victim suffers from a condition such as those the analysis isn't complete the state can or the court continues to examine what result the or what effect that condition had on the victim's ability to understand the nature of the act and give knowing consent for example in cases like people vs molone y or people vs blake the court examined a case where the victim victims were minors the victim suffered from mental impairment or a mental handicap the court didn't stop its analysis of the knowing element though when it noted that the victims were minors it didn't stop as analysis when it noted that the victims merely suffer from some sort of impairment instead it looked at what result by the fact that impairment would have had on the victim's ability to understand the nature of the act or give knowing consent operative question regardless of age is whether the victim is able to understand the nature of the act and give knowing consent and as the dissent pointed out billowing as mr lloyd is arguing here there may certainly be circumstances like the record before us where legislature put the scheme together as a offense such as someone younger than p v in this case let's say a nine year old and the act of sexual penetration is performed upon her by someone who is thirty that's predatory criminal sexual assault registered to set up a specific statute for that offense now as to whether age can be considered i don't believe it can because that's not the operative question the operative question is whether the victim is able to g consent or able to understand the nature of the act much like if there were a case where the state came in and said well of course the victim could have consented she had had third beers or she had had six peers but maybe some cases where that would be true however it's impossible for the jury to determine whether the elements of the structure mad and listening view the surrounding circumstances the conduct of the the victim in that case what the defendant knew about the victim at that time and the jury would have to determine based on those argument in this case fails because the record as it is set forth demonstrates that the victim in this case seems to know exactly what was going on she had had sexual education classes at school she talked about sex with her mom she talked with about sex with her sister and her friends she testified that some of these things that occurred she wanted to happen she testified that there were instances where she wouldn't dress and destroy its presence without him asking her to do so and on one occasion when he said you got too many clothes on she got out of the band walked into the house where moose and clothing went back in the van got in the van and i believe poker pants down and one of the encounters began again these are the actions of someone who understands the nature of the acts are being performed and certainly there was no indication she gave there's no fact that can be pointed to that where you can say mr  would have known not that he may have known or that a reasonable person should have known but that mr willing knew that the victim was unable to understand the nature of the act or give knowing consent and absent some factor that meets that statutory element the reflects much deliberation on the part of the legislature and i say that because it seems like the legislature is criminalized almost every conceivable sex act that can be performed on adults and again some of the state's most vulnerable of citizens including children the handicapped and the elderly this statutory scheme not only sets forth what offenses should be criminalized but also sets what the penalty should be for those offenses and it spans a wide spectrum such a case where two sixteen year olds a boyfriend or girlfriend have a consensual have consensual sexual intercourse that pursuant to the statutory scheme is a class a misdemeanor it was all the way toward something like a predatory criminal sexual assault a class acts and then there's enhanced ones on top of that if a weapons use for drugs or use things of that nature under the state's interpretation no any time the anyone would have sex with someone who was a minor in if you take a case like two sixty year olds having a consensual performing act of consensual intercourse the legislature said that's a class a misdemeanor under the state's theory the prosecutor would for all intensive purposes be able to almost usurp the will of the legislature and say now you know what i don't think this is a crossing this to me or like the legislature said this is one felony that's strictly not what the legislature has intended and there are multiple examples of situations where the statute  state could do that and pursue a greater offense of what the legislature intended and in the case of two sixteen year olds they could both be prosecuted as a class one felons pursuit to subsection twelve thirteen eight to if the state's argument is accepted so i don't think the prosecutorial discretion can be relied upon in a case like this i would also note that it's a much more minor point but oftentimes in every case in criminal cases it would be  included you know you have zealous prosecutors and sometimes they can be overly zealous and so you do have a an issue of making sure the prosecutors don't look at necessarily win loss record as much as caring forth what the legislature would like them to do and this case i think that the legislature is pretty clearly set forth what this offense should be and i should know there is a statute for this offense but this isn't one of these offenses where there's no statute covering it so the state has to get seventeen when the accused is more than five years older than the victim given the facts are set forth in the charging instrument it seems like the state probably could have gotten a conviction had it prosecuted mr wood under that subsection for whatever reason it chose this based on its determinations of policy and in order for there to be a comprehensive set of laws in the state and in that context in this context in any context where there are you know extenuating circumstances that were what would warrant a sentence different than maybe what the statute proscribes that's something that the legislature needs to look at but it's a situation you know much like the the sixteen year old son eighteen and sixteen year old the legislature set forth what the proper sudden should be for that offense based on its policy determinations and so i don't think that the court would be first to go down that road i think the quote would be required to follow exactly what the the individual the sunshine year old who commits burglary according to the statute in place at the time for that offense you agree counsel that there's the appellate court that there's two ways either unable to effective consent unable to understand the nature of the actor unable to give affective consent and the legislature amended that statute now even i would agree that i think the states argument would be far more viable had the effect of consent language still been in the statute arguably situation of where the person cannot give legal consent might equate to a situation where they are unable to care effective consent the legislature though amended the statute not to require effective consent but to require knowing consent and i believe that there's a  big difference there and i believe that the statutory scheme the legislature has put in place highlights that they've made these determinations a you're right a somebody younger than seventeen years old legally cannot consent to sex and illinois however there are statutes for those predatory criminal sexual assault for the youngest of people there's a statute that mr lloyd should have been charged with in this circumstance but were prohibited his sexual penetration of a victim between the ages of thirteen and seventeen there is a scheme in place and there's nothing wrong with that scheme i'm just asking the court to stay with the status quo of how that scheme has historically been interpreted and used by the courts so yes in answering a question there are two ways i didn't mean to interrupt and hijack your question on it but there are two ways for the absence of knowing understand the nature of the act and the absence of knowing consent and again i think if you look at the factual scenario in this case there's no evidence that either of those were present mr lloyd had no way of knowing in this case there was no indication he should doubt that the victim was unable to understand the nature of the actor unable to give knowing consent there's simply wasn't and well i think that lloyd asking the asking p v not to tell anyone what happened the appellate court looked at that and suddenly that evidences his knowledge that she was unable to understand the nature of the actor and he will give no one concern that's not that's not accurate but that statement evidence was the fact that he knew something was pretty he knew he was doing something he should not have been mr lloyd is not an attorney he doesn't understand criminal statutes you know he doesn't know you know what the standard is for someone understanding the nature of the actor you know much of what we're discussing here today he doesn't know right from wrong and he knows what he did was wrong there's absolutely no showing the his statement to the team peavy that she shouldn't tell what was indicative of his knowledge that she did not understand the nature of the actor was unable to give you know we consent the state can't use that statement to justify the charge brought in this case whether it was correctly charged in the states you know arguing for a extension of the statute or it was incorrectly charge and they're trying to construe the statue in a way that saves the conviction the state also relies on the word an able and argues that the word unable means that the victim is not able to give legal consent i don't believe that that could be the correct interpretation of the statute either when the structure was initially passed with as i said previously the statute read an evil to understand the nature of the act unable to give effective consent that to me as i said is much closer to covering the sort of situation the sort of argument that the states making in this case affect of consent encompassing the victim's ability to give legal consent to such a change that however and by changing that i don't believe that they were trying to say well an able now means legally unable it would be the victim was unable to understand the nature of the act and legally incapable of giving consent but using legally incapable of giving if both of those terms mean the same thing but didn't the legislature didn't mean for the statute to be construed this way and did not mean the word unable to mean legally an able because p v was a minor at the time terms of sufficient evidence for a reasonable person juror we on this is this a question of fact or is it a question of law i think it's a little bit of both in this case merely because the question of whether the evidence was sufficient to meet the omens of the offense would be a question of fact however if the stat that the interpretation of the statute and whether that whether the statute includes someone who is a minor or legally as the state believes legally unable to consent that would be a legal question i guess my response to that would be the chart the state can charge what it wants and i think the interesting thing in this case is the state decided not to charge the offense that it should have either with war as the sole charge it didn't even charge an alternative twelve deaths sixteen which would have been the appropriate charge in this case so you know the stakes for the charge whatever it wants argument today is that the state failed to meet the knowledge element of the offense and in no way demonstrated that peavy was unable to understand the nature of the actor give knowing consent and in fact as i said i think the evidence shows otherwise her actions is that part of your argument then that because there is another charge  legislature didn't contemplate that this section would be used in the manner that it was here yes yes and again that goes back to the whole statutory structure type of argument where were the legislature lays out specific offenses with specific age requirements you know age is not mentioned in this statute at all it's mentioned in many forms throughout the statute criminalizing sex offenses had the legislature intended for something like this to the state's theory to apply to subsection twelve thirteen a two it clearly could have said unable to understand the nature of the act or give knowing or legal consent or something along those lines but it left that completely out of the whole equation and i believe that's right that because  could consider and the jury legitimately did consider in this case and determining whether defendant knew that peavy was unable to understand the nature of the acts or give knowing consent there is no limiting language in the plain language of section fifteen does excuse me in section eight two of the statute there is no limiting language it says unable to understand the nature of the acts or unable to give knowing consent defendant this court to insert language or limited and not give the word unable its plain meaning age was at least one relevant factor for the jury to consider and this case there were a number of circumstances  that peavy was unable to understand the nature of the acts or give no set even under the plain language of the statute i'm sorry the plain language of the statute actually states that minor victims because they are minors and automatically unable to give knowing consent they baseball within the statute automatically might have victims characteristically like the capacity to exercise mature judgment they possess an incomplete ability to understand the sexual activity and court has recognized that for over one hundred years back and not assume the people in one thousand one this court recognize that a fourteen year old girl is like a mentally incapacitated individual or like someone who is unconscious that would fall under this one is where there's an act of sexual penetration by force is the one section that we're discussing here where the accused knew that the victim was unable to understand the nature of the act or unable to give knowing sent the third deals of sexual penetration a victim was under eighteen and the accused was a family member and then the fourth and final one is a commit the allegations that there was a act of sexual penetration with the victim was at least thirteen under eighteen and the act was committed by someone who is in a position of trust or authority if your reading of that section to includes minors generally why would the legislature include two and three their very specific crimes based on the minor and the relationship to the accuser it would seem as though those are within the same context of the same statute twelve as thirteen which the legislature it was very careful to carve out specific crimes involving minors but only in relationship to a family member or person  victim the defendant whether he knows does not know the age of the victim would be could be prosecuted under those sections so under section eight two there's a knowledge requirement they've elevated there's something factor that elevates the incapable of consenting however sections a three and a four apply all to minors under eighteen so there's a class of victims that could be charged under a three and a four but in four it's thirteen  a four specifically would encompass our case i mean the fact that she's thirteen so all i'm suggesting is that there does seem to be in the statute some specifics about age in the very same statute that we're talking about the legislature was doing with specifically issues about age that why why would they need to put that why would they need to include that if two includes the same kind of conduct because there may be circumstances like this one where proving position of trust authority or supervision may be a little bit more difficult this was a defendant who's mother did did not like him did not really trust him  however she trusted him and he was around the house all the time and whether they could have proved that he was in a position of trust authority as a provision is is not entirely clear and those  in the sense that we need to understand what they meant by well section two as i said it elevates the crime i mean there's a there's a knowledge element so they're what they're saying is that  under age to age is a condition of fact that the jury should consider it's something that the victim comes in with it's no different than a victim coming in with an i q of you know a low i q it's no different than a victim coming in with having had four beers and certainly the age of the victim in the intoxication defense that the defendant raised would be relevant to a seventeen year old who had consumed four beverages and was one hundred twenty pounds maybe relevant to whether the victim was able to give knowing consent  similarly the age of the victim parents a thirteen year old she came in as a thirteen year old and she acted like a thirteen year old and defendant had known her her entire life and so a jury at least at the very least  relevant factor under section eight two and especially in this case where the state was required to prove knowledge and in this case we have all of these facts we have a minor we have peavy who demonstrated her her clothes but actually her response to that was was as a child it he said to go move her closer she went into the house and she removed her gym shorts she left on her spencer locked on her jersey she leapt on her sweatshirts looked at her underwear up on our sports bra this girl didn't know what he meant and she thought she thought well he wanted to do the same thing as last time so i guess i'll do that and she shouldn't go change into law as you're right she didn't exhibit any sort of adult understanding of the sexual acts similarly she used incipit unsophisticated language and she was describing the acts she talks about them you talk about her vagina as her private parts her breasts as her chest the top part of the vagina the her private the bottom part the part that has the whole i mean this is a girl who doesn't know what's going on all of her responses were unsophisticated and my independent saw those responses and she multiple times when he would a things he she would respond i don't know and then complained and that happened over and over again and so and again given dependence relationship long term longstanding relationship with p v the jury discretion is always in play in these cases in sexual assault cases a prosecutor or a prosecutor must decide based on the facts and circumstances of what charges to bring and especially in sexual offense cases so for example a twenty year old employee who has sexually penetrates i'm sorry a twenty year old manager or nineteen year old manager who has sexual relations with his sixteen year old employee i mean the age difference is three or four years it's it would been a class a misdemeanor but some fact elevates that crime up to a class one a class one felony because the now these age while the age difference is three to four years the position of trust authority or supervision is in place and so therefore that factor elevates it and similarly here the knowledge element elevates it and in these circumstances where he's forty two when she's thirteen that that goes to her ability and it goes to his knowledge of her seventeen and so the sixteen year old and the ten year old would be a misdemeanor however perhaps we can agree that a ten year old is unable to give knowing consent how do you address the defendant's argument as well as is and in this case the facts are i agree just there is a forty two man with a thirteen year old girl where there's a trust relationship and there's a number of facts that show that she was unable to get consent so now you know there's absolutely no case where this there aren't like the fifteen argument to that and below in our braves and in that argument we talked about all of the factors just as i've described here we've talked about her emotional state ever everything we talked about all the  this and the fact that she acts like a thirteen year old and somewhere in this school acted like a thirteen year old she didn't she comes with a mental every victim comes in with a mental state and the school came in with the mental state of an unsophisticated thirteen year old she altho it's a mental to mentally deficient person would comply with some x and not comply with others and sort of say ok i can do that or i can do that but the important fact is that the person was mentally deficient and they were unable to do knowing consent under defendant's definition is a person's agreement with full knowledge of the risks and alternatives to the acts and so in this case the minor victim the thirteen year old who demonstrated that she didn't understand the risks and alternatives and develop draws a distinction between the effect of consent and the knowing consent but first of all this is a plain language argument so you don't need to turn to history but even if you even if you do he's not identified any situation in which there would actually be a distinction except for this one and on top of that his definition of a fact as defined in his brief is someone who is caring way or exerting authority but the question is why the why is the victim unable it doesn't change that effective consent is the same thing as knowing consent because the question is whether persons on able to give effective consent are on able to give  established in fact it doesn't include the party illegal anywhere so under the prior statute it would have been unable by reason legally or mentally to give effective consent similarly under this statute on able legally or mentally for whatever reason unable to give knowing since there's no actual difference between them especially when defendant to find himself is saying that knowing concert means full awareness of the risks and alternatives and it's well  that minors don't are not aware of sexual and the purpose behind the age of consent is that and the rationale supporting it is that is that they are incapable of understanding the social and personal consequences of their actions but even going back to his position he defended agrees that back before the change from effective to knowing a minor would have fallen within the statute so the question is well did the legislature truly intend to give less protection to minors as time has gone on because that's what the result of his position is and that seems contrary to the legislative purpose to protect minors and finally in his brief as he there's a there's a knowledge on that there's a men's right element that elevates this statute just like with any other on behalf of the defendant the defendant must know in those other circumstances for example defendant had pointed to the severely or profoundly mentally retarded person so severely or profoundly mentally retarded is you know quote is mean something and under under this scheme that's aggravated criminal sexual assaults a class x  but if the person is not severely or mentally i mean there are factors that will always elevate a crime and in this case it's the knowledge element that elevates the crime and all the factual circumstances so it's no different than any other statute if what counsel says is true that what came out in the evidence in that case separate and apart were in addition to the victim being thirteen years of age that  if we find that the evidence is there that indicates that there was not knowing concern that we we could afford him on that basis i would agree with that statement i would clarify and say it would you would have to make a finding that based on the evidence in the record but defendant would have known that p d was an ear to understand the nature of the acting of knowing consent and i don't believe that evidence is there p v and one thing that the council mentioned was that the defendant had said go in and change your clothes and that she was merely following his direction during her trial testimony he said then he told me i had too much clothes on and so i went in the house and i changed he never said go into the house and change she made the statement she made this decision that ok i'm going to go in the house and change that's that's what i'm going to do it was a conscious decision she wasn't following it a directive of the defendant she was doing something in response to something else the defendant said to facilitate and i don't want to sound like i'm blaming the victim that's not what i'm doing at all but certainly the record shows that the victim understood the nature of the act and gave no one consent to those acts and i don't believe that there's a showing in the record to demonstrate that mr lloyd knew but the victim was unable to understand the nature unable to give knowing consent your position is to get there we would have to agree with the argument that thirteen is a correct with the state's argument and to that point justice tice when you were asking the state regarding the reasons for subsections three and four and twelve dash thirteen she mentioned that there was an additional element in this case the knowledge element and i just want to point out that subsection three talks about a family member committing the act in subsection for talks about a person of trust authority or supervision in relation to the victim arguably somebody who holds those positions would know the age of the victim it would be something that would just they they would know as as a result of their position being that close to a to a victim so knowledge is kind of inherent in those subsections i don't think that the the difference between the inclusion of knowledge and subsection two and the language and three and four there's an inconsistency there and i don't think the state adequately explains that away again the reason why prosecutorial discretion should not be used to ok what occurred in this case is due to the rampant effect that that may have on this legislative scheme that the general someplace created  scheme is fairly unique it sets out specific age requirements for specific victims and specific acts and allowing prosecutorial discretion to play into the equation to determine instead of what the legislature thinks is appropriate i'm going to prosecute this as a class one rather than a misdemeanor i think that's significant and that was that would result in as i said outcomes that the legislature never intended and had they intended those they could change the statute and they haven't done in those cases as well i think that is true in some cases i think what the issue is in this case is the severity of the distinction that would take place where the prosecutor could charge two sixteen year olds but the legislature has clearly said should be charged as across misdemeanor and with a class one on probation a felony the penalty for that offense goes from a two year in jail to up to fifteen years in prison with the senses being mandatorily consecutive with the multiple lax and i conceive that the legislature would think that that was an appropriate outcome in the legislature they are the ones that make the laws based on their policy decisions and they constructed this wasn't so i don't believe the prosecutorial discretion can be used in this case given the disparity that would take  place i just want clarify for the state head during its argument said that i would agree that a minor would have fallen within the effective consent language of the previous version of the statute i don't know whether it would have or wouldn't have what i said during my argument was that would be a much closer question the what we're presented with here the state's argument would be much more plausible because i could see it making a good argument that effective consent includes legal consent but that's not the case that where we have in front of us today the statute specifically was changed to include a showing of knowing consent not legal consent the legislature could have done that not that no one concern or prohibiting someone to have sex with someone who wasn't able to give no one consent or someone who was a minor we don't have that there are statutes for those other provisions and again the legislature's use of that statute shows that the state's position is not what the legislature intended and the state talks about prosecutorial discretion and the fact that  applying the statute has been traditionally applied to this class of individual to mr lloyd the state is asking essential for there to be a change in the way that the statute has always been interpreted to include someone who is a minor so that's why we haven't seen a lot of cases about about this topic or on this topic it's because the rod doesn't hold the way that the state says it does the statute has never been interpreted the way the state says it has and that's why we don't see a large amount of cases where this offense ha charged they simply don't exist because the prosecutor has gone out on a limb to charge someone instead of the act that they should have charged him or her with with the subsection and then argue that the law should be changed to accommodate that again arguing today is that the law should be viewed as it has always been consistent with the structure that the legislature has set forth to cleanly give courts guidance on how individual should be charged to commit sex offenses there is a statute directly on point in this case instead of using that statute the state is asking for a change in the law a change in the way the statute is bringing traditionally interpreted and a change  that can't be workable given the consequences that will follow and in fact the state argues that you know you can rely on the age of the age is a factor you can look at again no matter what the condition is that someone walks into you with which someone walks