or next case on the called the docket is agenda number seven case number one one three one one six people versus ernesto girard the counsel for the felon please morning your honour's may please the court counsel my name is carol gaines and i represent the people of the state of illinois the victim in this case your honour's was the defendant's biological daughter who came to live with the defendant at age thirteen when defendant regain custody of her after she had lived with the return of grandmother since the age of five in the fall of two thousand and seven when the victim was fourteen years old the defendant can't begin to touch her inappropriately and a few days before thanksgiving of that year the defendant came into the victim's bedroom order to take off her clothes and grabbed her by the wrists as she tried to run from the room defendant or on the bed held her down while he removed her pants and sexually assaulted her by forcing his  the defendant continued to sexually assault his daughter through january of two thousand and eight when she attempted to take her life by swallowing a bottle of pills while the while it is unclear whether the defendant wore condom on each of those subsequent sexual assaults of his daughter he was not wearing a condom on that first occurrence there was no dispute in this case the defendant was a child be positive and that both the defendant and his daughter were aware of his medical condition based on that first sexual assault were that found it did not wear a condom if it was charged with aggravated criminal sexual assault under section eighty three of the aggravated criminal sexual assault statute which requires the state to prove that during the commission of the offense the defendant acted in a manner which threatened or endangered the life of his daughter the jury convicted the defendant of aggravated criminal sexual saw and the appellate court overturned that conviction finding as a matter of law that no rational trier of fact could have found could  concluded that the defendant's act of exposing his daughter to hiv through an unprotected forced sexual assault threatened or endangered her life within the meaning of the a three the section eighty three of the aggravated criminal sexual assault  was sufficient to sustain the defendant's conviction for aggravated criminal sexual assault under that statute furthermore the appellate court despite recognizing that the exposure to hiv can in fact result in transmitting a life threatening virus was and contrary to the plain meaning of the language used in the aggravated criminal sexual sot statute the best indication of blood slater's intent is the statutory language used given its plain ordinary meaning plane nor near it were near the meaning of the term in danger by definition is too exposed to danger and peril to bring into danger or peril or to create a dangerous situation the plane an ordinary meaning of that statutory term in danger does include this defense act of exposing his daughter to hiv by engaging in unprotected an unprotected sexual assault when he knew he was a child be positive he exposed her danger and created a dangerous situation by his conduct is construction of the term in danger is not affected in any way shape or form or impacted at all by the existence of the criminal transmission of hiv statute it's a separate statute it addresses different contact and it does not involve what we have here forcible rape by a father of in this case by a father of his daughter the facts of this case amounted to an aggravated criminal sexual assault regardless of the criminal transmission to hiv statute if they are contact if conduct meets the criteria of different statutes the defendant can be charged and convicted of all of all or any of them just nice existence it does not affect whether or not the determination by this court interpret in the plain meaning of the income and comprising whether or not that threatens or endangers the victim's life during the commission the offense i would argue that those cases do not again affect when you look at the plain meaning of the statutory term in the statute there is no under the statute there is no immediacy required for placing the defendant in in a dangerous or perilous situation the danger does not have to occur or he has a place or in that danger but in this case in terms of the h i b exposure that does the trier of fact or the evidence shows that those in fact war offenses that did in fact threaten or in danger the victim's life then then yes that would be a question for the tri fact they're going to be all kinds of illnesses there may be some more dangerous some less but it is understood here in defendant you have to look at the defendant's act you have to look at what he's doing he knowingly knowingly is he is infected with the hiv virus he commits a forcible sexual sought without using a condom he is threatening or continually well if you used a condom your honor then it's a defense it is a defense in the i don't believe that he would have been he would have been charged with the it's the fact that he doesn't use a condom it's exposure there because the other the court in saying as a matter of law that this could never ever the defendant's conduct here could never ever amount to an aggravated criminal sexual assault is one of one of the main hurdles here is that it is a question of rather to a potential or possibility of injury or harm same thing in people versus joran you follow people versus collins and made that determination again applying this court's prior interpretations of the term in danger situation and act and by acting in a manner that could or might possibly result in harm to her clearly having the potential or possibility of injury or harm again they have greater criminal sexual sought statute does not russell and based on the plain meaning of the statutory language it was not necessary for the victim to have contracted the virus at the time of the exposure or even afterwards the statute does not require that and the statute does not say that it is the exposure to that you find this defendant would like to point out to this defendant is a class x offender by raping his daughter without a condom knowing he was a positive he endangered her life within the plain meaning of the term endangered used in the aggravated criminal dispute that your road had hiv and that he exposed her to hiv but whether these facts are sufficient to meet the statutory requirements is a question of law that only the court can decide the stay argues in favor of an expansive definition of the word in danger to the exclusion of the rest of the statue however the plain language of the statue read as a whole does not support such an interpretation the statute has a clear temporal limit in order to be elevated to an aggravated criminal sexual assault under this section the victim must be at risk of losing her life during the commission of the offense t g was not at risk of losing her life during the course of the offense by being exposed to hiv hiv does not threaten or in danger someone's life at the moment of exposure the risk and exposure to hiv is that the complainant will actually contract the virus that the virus will eventually develop into aids and that the treatment for aids will eventually lose effect amiss in the complainant die this is a process that can take decades the legislature intended for the aggravating factor to be something that was actively used to effectuate the assault while the assault was occurring otherwise there would have been no reason to include the language during the commission of the offense in the statute it is the immediacy of the threat that aggravates the assault into something even worse there was no showing here that you road used to hiv positive status as a means to effect the assault the state's argument for an expansive reading of the term endangered is that odds with the rest of the statute even under the expansive understanding proposed by the state the statute still limits it to the time in which the offense is actually occurring the potential risk to the victim's life must be while the offense is occurring and not afterwards even under collins in jordan neither of those statutes had the temporal and limitations that are present in this statute furthermore in each statute at issue in collins in jordan the immediacy of the of the harm was inherent in the offense and one the reckless discharge of a firearm statute the harm is ongoing while the ball is in motion and once that bullet comes to rest the harm is over and so is the offense in the child endangerment and statue in that case a young a young child is left in a car in on a cold day well of course that child's life is endangered while she's in the car but once she's removed from that car the offense is over and so is the risk to her life so collins and jordan do not change the analysis that the appellate court applied here were are you life be in danger during the course of the offense the during the course of the offense language doesn't only modify the defendant's actions but it also modifies the result both the defendant's actions and the the risk to the victim's life have to take place during the course of the assault and virtually all of the case the published decisions dealing with this particular section of the statute recognize that the immediacy of the harm has to happen while during the parameters of the offense not before not afterwards furthermore the fact that the legislature separately criminalized exposure to hiv suggests that the legislature did not intend for hiv exposure to be used as an aggravating element to road has already been convicted of and punished for the for exposing t g to hiv through the criminal transmission of hiv statute criminal transmission as a class two felony offense and drove with sentenced to seven with the precise circumstances of this case have already been addressed and a separate statute and a specific statute it suggests that the legislature did not intend for exposure to hiv to be used as an aggravating element of a sexual assault case the practical application of the criminal transmission statute alongside the criminal sexual assault statutes makes sense a criminal sexual assault with exposure but not transmission hiv virus is punished more harshly than an assault without such exposure but less harshly than where there is actual transmission of the virus there is no windfall there is no loophole rather the punishment for each scenario is in accordance with the severity of the circumstances by convicting and punishing duro for exposing hiv the state's expans reading of this statute would have him punished again for the same conduct the separate criminalization of exposure to hiv strongly suggests that the legislature intended to treat it as a separate independent offense and not as an aggravating element of a criminal sexual assault finally a policy of lenity also requires that the statute be strictly construed the state suggest in its brief that the rule is only applicable in cases where a statute is enhancement provision which it does because it operates because it is a highly penal statute it must be strictly construed and strictly construing this statute is in accordance with both the plain language of the statute and also the legislative intent is there any significance in the fact that in some three the legislature used the word the accused acted in such a manner whereas all of the other so seem to indicate something the during the commission of the offense language refers to not only defend the defendant's actions that he acted in a manner whatever that manner was but also under this section of the statute that the victim's life be threatened or endangered during the commission of the offense and i would like to to point out also that had actually acquired the virus then she then could have been charged under the bodily harm section of the statute which bodily harm obviously  a lesser burden than i threat to the life so again there's there's no windfall or early poll here this is this is simply a strict construction of the statute as it is written if there are no further questions i will conclude by saying that there is no need for an expansive reading of this statue where such a reading is not supported by the plain language and where the legislature did not intend for saturating therefore this court  prior cases and the facts of those other cases have nothing to do with whether or not the term in an op itself in danger what that means within the context of the aggravated criminal sexual assault statute if the construction what the defense is asking for an appellate court did was a very narrow construction of the statutory term and if the construction of that statute that's being urged by the defense world by this court in this case as well the appellate court results in or leads to an absurd or an unjust result then you cannot adopt that construction that's exactly what you tell a court has done and in in favoring a very narrow and instructive construction of the charter in danger which in and of itself is a broad term  regarding the danger and the immediacy of the danger the statute does not require it you are looking at the defense would would like you again to have an artificially narrow construction based on how the crimes occurred in the cases in and how those offenses in the crimes were defined in the other cases that that that she's referring to the term is not narrow it doesn't require immediacy and it is contrary to the stitched language and doesn't count result in an on just interpretation with respect to the criminal chip transmission of h i d being the only statute under which this conduct can be criminalized it is not as long as meaning of the aggravated criminal sexual assault statute we have to ask you to reverse their judgment and from the defendant's conviction thank you mr gaines and missing groom for your arguments this morning case number one one three one one six people versus