twelve dash sixteen he because only one pretty easily gotten a conviction that subsection requires the victim to be between the ages of thirteen and some three the perpetrator the accused to be five or more years older than the victim the scheme of was that we have in illinois the teen age who doesn't apply where you have a thirteen year old who is incapable legal way of giving consent the defendant knew her age the way i understand the evidence in the case and he's in his forty's a thirteen year old in the state of all my is not able to give consent to sexual activity in other words whether she laid down in the middle of the road and said take me sure he's not appreciate the nature of the actor and let's leave appreciate the nature of the act because i think based on the evidence as i see it in the briefs it seems to me i don't want to say she was a willing participant right but that's one of the reasons that this case  that a normal person probably wouldn't do and there's nothing indicating in this record that he knew that a thirteen year old could legally consent to sex in the morning now she gave you know think this is where the two subsections kind of interact a little bit globally speaking in this case you not only have the fact that she is thirteen but you were also out actions on the part of the the minor aside from a raid that show testimony at trial that this was something she wanted to experience something that she won't happen with that cause that the part of understand the nature of the activity which to me is a separate element and it's i don't know necessarily that it that it does so it's that there was nothing in the natural under reasonable wrong or unbelievable about the victim's desire to experience sexual acts or the state can see that in their closing argument i don't know now they can come back and say well i did say that there was nothing i believe or a showing that she is unable to consent cannot consent knowing when therefore the defendant has knowledge that she's unable to consign then twelve as fifteen he turns into a pos one felony because the group even the legislature said we want to punish this offense as a class a misdemeanor if the girl's under age pursuant to the state's theory they can charge under subsection twelve dash thirteen two and say well girls under age so the defendant should have another if the defendant knew that the victim was unable to consent t sex and therefore that's a pos one felony and there are multiple statutes dropping on a criminal to dealing with age based sex offenses that would be completely eviscerated in record meaningless if the state's argument that which is true but when you come to the specific question of was there evidence presented that the defendant the defendant knew that the victim was unable to give knowing consent it was given about this but there was a statement by the girl's aren't that she told the defendant that she wanted him out of her house never want to see him again or something like that but i don't recall anything specific as to the actual act i believe so because it isn't a lesser included offense he wasn't charged in the all true though with what i believe was the with the appropriate charge you know certainly if there is a lesser is no age head off i think with the more operative question is have what point does the have the knowledge or the carried herself so that the defendant would have a reason to question the when the state is charging him with twelve thirteen eight to the defendant formulates of the facts to that specific charge it may very well be that in formulating that defense the defendant ends up  don't believe they have in this case the state can later come back and say well there's a different charge and we do need elements of that charge and therefore he's rightly convicted of of this charge that there are sorry from you know the fundamental and be accused who is over five years older to me that that sounds like the legislature with point to her testimony on this whole record she talked like she was a young girl gave answers that were were making someone a young age the evidence of his inability because of his vocal status was so clear that even though that was an incorrect construction the evidence was still sufficient proof w everything has to be kept in context my point is in the press he knew what he was doing was wrong he told the girl not to tell me one because he could have been prosecuted under subsection twelve sixteen like he probably should have  exact same sentence could have been she here one class two three but this is just kind of off the top my head i think i'm right about the so there's the statute that talks about running a consecutive sentences