NOTE: The following information was updated to account for various amendments to sex crimes under the Illinois Criminal Code in 2019. More specifically, Public Act 101-0130 eliminated the statute of limitations for prosecuting major sex crimes in Illinois, including the regular and aggravated versions of criminal sexual assault and criminal sexual abuse.
The accusation of sexual misconduct can be devastating for a defendant. First, the person is tried in the court of public opinion and almost always found guilty when their mug shot appears in the news. Second, regardless of any sentence imposed in a criminal case, the defendant will be required to register as a sex offender. In many respects, the requirement of registration as a sex offender is a more punitive sanction than any sentence a court can fashion.
That being said, the defendant is still protected by the presumption of innocence. The prosecution has to prove their case beyond a reasonable doubt and sway a jury of 12 people who do not always side with the police.
Competent defense attorneys will typically have a strong opinion in most sex cases. Precisely, the defendant should almost always plead not guilty and demand trial. These cases are harder for the State to win than most expect.
But before any decision is made, it is important to know the law. The statutes against sexual assault and sexual abuse are found under Section 11 of the Illinois Criminal Code. This article is a summary of Illinois sex crime laws. But under no circumstances should this article be considered as a substitute for legal advice.
Illinois Criminal Sexual Assault
Illinois law does not use the term “rape” in sex crimes. What other people may consider rape, state lawmakers have termed “criminal sexual assault.” The intent of the legislature in discarding the term rape was to lessen the stigma attached to the crime and, therefore, encourage more victims to come forward and pursue the offender in court.
Criminal sexual assault is found in the criminal code at 720 ILCS 5/11-1.20. The offense is categorized as a Class 1 felony offense, with a potential penalty of 4 to 15 years in prison. This charge is a non-probationable felony. That means that the judge is not permitted under the law to sentence the offender to probation. A prison sentence is mandatory. Consequently, the minimum penalty for criminal sexual assault is 4 years in prison.
If the defendant has a prior conviction for sexual assault, then a second or subsequent offense is a Class X felony. The possible sentence on a second offense is either 6 to 30 years in prison, 30 to 60 years as an extended sentence, or the natural life of the offender.
Criminal sexual assault consists of sexual penetration combined with one or more of the following elements:
- Force or threat of force.
- The victim was unable to understand the nature of the act or to give knowing consent.
- The victim was under 18 years of age, and the defendant is a family member.
- The victim was at least 13 years old but under 18 years of age, and the defendant was 17 years of age or older and held a position of trust, authority, or supervision in relation to the victim.
Illinois Aggravated Criminal Sexual Assault
Illinois law says that a person who commits aggravated criminal sexual assault is guilty of a Class X felony. The crime is codified at 720 ILCS 5/11-1.30.
A Class X felony is non-probationable. Consequently, the court is not authorized to sentence the defendant to probation. Under no circumstances can a person who is found guilty of aggravated criminal sexual assault receive a probationary sentence as opposed to imprisonment. The offense is punishable by 6 to 30 years in prison, with possible extended terms of 10, 15, 20, or 25 years (for the use of a firearm during the commission of the offense), or natural life.
A second or subsequent offense of aggravated criminal sexual assault is a Class X felony. However, the offender would be sentenced to natural life in prison without the possibility of parole.
The defendant is guilty if they commit criminal sexual assault plus any one of the following aggravating factors:
- Commission of the crime with a dangerous weapon.
- Infliction of bodily harm.
- Threatening the life of the victim or another person.
- Commission of another felony.
- The victim was 60 years old or older.
- The victim was physically handicapped.
- The defendant drugged the victim by delivering a controlled substance.
- The defendant discharged a firearm during the commission of the offense.
- The defendant discharged a firearm during the offense and caused great bodily harm or death to another person.
A person may be guilty of aggravated criminal sexual assault under a different factual scenario as well. Under the following circumstances, a defendant is guilty of aggravated criminal sexual assault due to the difference in age between the victim and the offender:
- Sexual penetration where the victim was 8 years old or younger, and the accused was 16 years old or younger.
- Sexual penetration where the victim was between 9 and 12 years old, if force or threat of force was used.
- The victim was severely or profoundly mentally disabled, regardless of the age of the accused.
Illinois Predatory Criminal Sexual Assault
Illinois law provides that a person who commits predatory criminal sexual assault is guilty of a Class X felony with no possibility of probation. The charge of predatory criminal sexual assault is located in the criminal code at 720 ILCS 5/11-1.40. The statute provides that an offender must be sentenced to a prison sentence of 6 to 30 years. If the offender uses a firearm in the commission of the offense, an extended term of 15, 20, or 50 years may be added. The offender may also be sentenced to natural life. A second offense of predatory criminal sexual assault has a mandatory life sentence.
Predatory criminal sexual assault consists of the following elements:
- Sexual penetration where the accused was 17 years of age or older, and the victim was 12 years of age or younger.
- Sexual penetration where the victim was 12 years of age or younger, and the accused was 17 years of age or older and carried a firearm, discharged a firearm, or caused great bodily harm to the victim that resulted in permanent disability or life-threatening injury.
- Sexual penetration where the victim was 12 years of age or younger, and the accused was 17 years of age or older and delivered a controlled substance to the victim.
The crime of predatory criminal sexual assault also occurs where there was sexual penetration and the accused was 17 years of age or older, and the victim was 12 years of age or younger and, in addition, the defendant carried a firearm, discharged a firearm, or caused great bodily harm to the victim that resulted in permanent disability or life threatening injury, or delivered a controlled substance to the victim.
Illinois Criminal Sexual Abuse
Criminal sexual abuse is the only sex crime on the books in Illinois for which the offense can be a Class A misdemeanor. The way it is written, the crime of criminal sexual abuse can be either a felony or a misdemeanor, depending on the circumstances. But even where the offender is found guilty of a misdemeanor, they will still be required to register as a sex offender.
Criminal sexual abuse is established in the criminal code at 720 ILCS 5/11-1.50. The statute provides that a person is guilty of a Class 4 felony where they commit sexual conduct in conjunction with either one of the following: a) force or threat of force; or b) the victim was unable to understand the nature of the act or to give knowing consent.
A Class 4 felony has a sentencing range of 1 to 3 years in the Illinois Department of Corrections. A Class 4 felony is probationable. Therefore, the judge is authorized to sentence the defendant to probation as opposed to incarceration in either the county jail or state prison system.
A second or subsequent offense of criminal sexual abuse under the scenarios described previously is a Class 2 felony with a potential penalty of 3 to 7 years prison. A second or subsequent offense with those facts is also probationable.
A person is guilty of a misdemeanor offense of criminal sexual abuse if they commit sexual conduct or penetration under any one of the following scenarios:
- The victim was aged 9 through 16, and the accused was under 17 years of age.
- The victim was aged 13 through 16, and the accused was 17 years of age or older, but less than 5 years older than the victim.
The maximum penalty for a misdemeanor offense in Illinois is up to one year in jail. Though that time can be subject to a 50 percent reduction for good behavior.
It is a defense to the crime of criminal sexual abuse that the offender reasonably believed the victim was at least 17 years old.
Illinois Aggravated Criminal Sexual Abuse
Whereas criminal sexual abuse can be a Class A misdemeanor offense under certain circumstances, aggravated criminal sexual abuse is a Class 2 felony. Under the law, a Class 2 felony is punishable by 3 to 7 years in the Illinois Department of Corrections. The offense is codified at 720 ILCS 5/11-1.60.
The statute provides that a person is guilty of aggravated criminal sexual abuse if they commit criminal sexual abuse and any one of the following circumstances is present:
- The defendant used a dangerous weapon.
- The defendant caused bodily harm.
- The victim was 60 years old or older.
- The victim was physically handicapped.
- The defendant threatened the life of the victim or another person.
- The defendant committed another felony at the same time.
- The defendant drugged the victim with any controlled substance.
A person would be guilty of aggravated criminal sexual abuse if they commit sexual conduct and any one of the following scenarios is present:
- The victim was 17 years of age or under, and the accused was a family member. (Note that this is the only scenario in which the age of consent is higher than normal.) For all other sex acts in Illinois, the age of consent is 17 years old. But where sexual conduct occurs between family members, the age of consent is 18 years old. Also note that the Code of Corrections provides a special sentencing provision for these cases. In these cases, the defendant must pay for counseling for the victim. The law defines a “family member” as a parent, grandparent, step-parent, step-grandparent, child, step-child, aunt, uncle, great aunt, great uncle, or someone who lives with the family for 6 months.
- The victim was 12 years old or younger and the accused was 17 years old or older.
- The victim was 13 through 16 years old, and the defendant was at least 17 years old, and used force or threat of force.
- The victim was 8 years of age or younger, and the defendant was 17 years old or older.
- The victim was aged 9 through 16 and the accused was at least 17 years old and used force or threat of force.
- The victim was severely or profoundly mentally disabled, and the defendant was any age.
- The victim was age 13 to 17 and the offender was 17 years old or older and held a position of trust, authority, or supervision in relation to the victim.
A person is guilty of aggravated criminal sexual abuse under one last scenario, where they commit an act of sexual penetration with the victim who is aged 13 through 17, and the offender is 5 years older than the victim. Compare this to that misdemeanor offense of criminal sexual abuse, in which it would be a misdemeanor if the defendant were less than 5 years older.
It is an affirmative defense to the crime of aggravated criminal sexual abuse where the defendant reasonably believed that the victim was 17 years old.
And so, the foregoing is an overview of Illinois sex laws. As stated previously, the constitutional protections for the defendant include the presumption of innocence, the prosecution’s burden of proving the case beyond a reasonable doubt, the right to confront the accuser, the privilege against self-incrimination, and the right to a jury which must render a unanimous verdict. All of these safeguards make every sex case a potentially winnable case for the defense.
That being said, when the Illinois General Assembly passed Public Act 101-0130 in 2019, it altered a significant feature of the prosecution of Illinois sex crimes. There is no longer a statute of limitations on these charges, including the regular and aggravated versions of criminal sexual assault and criminal sexual abuse discussed above.