J.M. v. Breseno , 2011 IL App (1st) 91073 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
J.M. v. Briseno, 2011 IL App (1st) 091073Appellate Court J.M., Petitioner-Appellant, v. MARK BRISENO, Respondent-
Caption Appellee.
District & No. First District, Sixth Division
Docket No. 1–09–1073
Filed June 3, 2011
Held The trial court’s denial of a petition for an order of protection under the
(Note: This syllabus Civil No Contact Order Act after petitioner was allegedly sexually
constitutes no part of assaulted by respondent was reversed where petitioner met her burden of
the opinion of the court showing by a preponderance of the evidence that she was the victim of
but has been prepared nonconsensual sexual penetration under the Act, notwithstanding the
by the Reporter of argument of respondent’s attorney that there was not enough “to show
Decisions for the that there was a lack of consent,” since the Act provides that, if the court
convenience of the finds that petitioner has been a victim of nonconsensual sexual conduct
reader.)
or nonconsensual sexual penetration, a civil no-contact order shall issue,
the standard of proof is proof by a preponderance of the evidence,
petitioner met that standard in proving that she was the victim of
nonconsensual sexual penetration while she was intoxicated, a note left
by respondent after the incident and the text messages he sent reflected
his guilty conscience, there was no unreasonable delay in petitioner’s
outcry, a detective who investigated the incident found petitioner was
“credible” and that the rape kit came back positive for semen, there was
no evidence suggesting petitioner expressly or implicitly consented, the
trial court provided no explanation to justify its finding that “it is more
likely than not that [petitioner] consented,” the Act did not require her to
provide medical evidence of sexual penetration or physical injury,
respondent presented no motive for petitioner to falsely accuse him of the
assault, and the minor contradictions in petitioner’s testimony were
inconsequential as to the issue of whether the nonconsensual penetration
occurred; therefore, the cause was remanded for the issuance of a plenary
civil no-contact order against respondent.
Decision Under Appeal from the Circuit Court of Cook County, No. 08–OP–1642; the
Review Hon. Maureen Ward Kirby, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Neha Lall and Denice Wolf Markham, both of Life Span Center for Legal
Appeal Services, and Richard C. Godfrey, P.C., Catherine Fitzpatrick, and Uma
M. Amuluru, all of Kirkland & Ellis LLP, both of Chicago, for appellant.
Karnig S. Kerkonian, of Kerkonian Law Firm PC, of Evanston, for
appellee.
Allegra R. Rich and Molly M. Joyce, both of Seyfarth Shaw LLP, of
Chicago, for amici curiae.
Panel JUSTICE CAHILL delivered the judgment of the court, with opinion.
Justices McBride and R.E. Gordon concurred in the judgment and
opinion.
OPINION
¶1 Petitioner-appellant J.M. appeals the trial court’s denial of her petition for an order
of protection under the Civil No Contact Order Act (Act) (740 ILCS 22/101 et seq. (West
2008)) after she was allegedly sexually assaulted by respondent. She contends that: (1) the
trial court erred by disproportionally allocating the burden of proof to petitioner, and (2) the
court erred in interpreting the Act to require corroborating evidence of sexual penetration,
petitioner to testify to her own opinion that she was unable to consent to sexual penetration,
and the court to presume petitioner’s consent. We reverse.
¶2 Petitioner filed for and was granted an emergency petition for a no-contact order
under section 214 of the Act (740 ILCS 22/214 (West 2008)) on March 28, 2008. Petitioner
then sought a plenary no-contact order under section 215 of the Act (740 ILCS 22/215 (West
2008)).
¶3 At the hearing on the plenary order Julian Portillo testified that he was a student at
University of Chicago Law School and a friend of petitioner. At 4 p.m. on Friday, February
15, 2008, Portillo and petitioner went to a social event hosted at the law school called “Wine
Mess.” Portillo had challenged petitioner to a drinking contest. Portillo, petitioner,
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respondent Mark Briseno, Ben Burry, Derrick Doller and David Cheng drank and played
foosball until the Wine Mess finished at 6 p.m. Portillo estimated that he and petitioner each
drank about eight bottles of beer during the event. The group left and went to the graduate
student pub around 6:20 p.m. Respondent walked with the group to the pub but left and went
to the “graduate students’ speed drinking.” Portillo, petitioner, Burry, Doller and Cheng
stayed at the pub and continued drinking until about 10 p.m. Portillo estimated he consumed
about 18 drinks throughout the night. When Burry, Cheng, petitioner and Portillo left the
pub, petitioner “seemed very drunk” and was acting “erratically.” Portillo told Burry he did
not think petitioner should be drinking anymore. Petitioner, Cheng and Portillo left the pub
and began to walk toward the law school. Burry did not go with the group toward the law
school.
¶4 On the walk back petitioner fell on the ground twice and cut her hands. Portillo,
Cheng and petitioner stopped at the law school to get coffee. Petitioner went into the
women’s bathroom and was screaming “that she wanted to go home.” Portillo and Cheng
said they would take her home, but then petitioner said she did not want to leave. Petitioner
was crying and screaming and “looked very frazzled compared to the way she normally
looked.” Portillo answered a phone call and, when he finished, saw petitioner leaving with
respondent. When Portillo left the law school he saw petitioner get into respondent’s car.
¶5 Portillo testified that he spoke to respondent on the phone the next day and told him
not to call petitioner anymore because “he had been calling and bothering her.”
¶6 David Cheng testified consistently with Portillo. He explained that the drinking game
he played with petitioner and Portillo involved drinking three beers in the first hour and two
beers each subsequent hour. Cheng told petitioner he would try to “stop her at 10 beers” to
make sure she got home safe. He had at least seven 12-ounce beers. He said that Portillo and
petitioner “always had the same amount of beers.”
¶7 After the Wine Mess Cheng said petitioner was “fairly inebriated.” A group of people
went to the graduate student pub. Cheng had about 9 or 10 more drinks at the pub but
stopped because he did not “want to lose complete control.” Petitioner and Portillo continued
to drink beyond that amount. He thought petitioner had about 12 drinks. Cheng said his
memory of the events that happened at the pub was intact and he “could definitely remember
everything.”
¶8 Around 10 p.m. Cheng and Portillo decided to walk petitioner home. Petitioner was
acting angry because she did not want to be taken home and “was cursing a lot and just
completely like a different person.” On the walk home they decided to stop at the law school
so petitioner could use the bathroom. Petitioner fell down at least once in the street and there
was blood on her palms. At the law school petitioner went into the bathroom and refused to
leave. Cheng felt frustrated with petitioner’s behavior. She was crying and “just saying stuff
that really didn’t make sense at all; and she was still drunk.” Respondent came in and asked
where petitioner was and then went into the bathroom to get her. Petitioner left voluntarily
with respondent.
¶9 Cheng spoke with petitioner on an online instant messenger system (“G-chat”) the
next day at 4 p.m. He was frustrated with how she acted the night before, so he initially
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ignored her. She then called about eight times within an hour, and he finally picked up.
Petitioner sounded very distraught and was excessively crying. She said she “couldn’t
remember anything” and asked Cheng what happened. At the end of the conversation,
petitioner said “I think I got raped. No, I know I got raped.” Cheng told petitioner she needed
to go to the hospital to get tested for sexually transmitted diseases and possibly report the
case.
¶ 10 Cheng testified that later that evening, he and their mutual friend Alexandra Levy
picked up petitioner and went to the hospital. Petitioner looked confused and distraught.
They went to the University of Chicago Hospital and were there “all night.”
¶ 11 Levy testified that she called petitioner at 6 p.m. on Saturday, February 16, 2008.
Something sounded “off” about petitioner’s voice and petitioner told her she was going to
the “Rape Crisis Center.” Levy called the “Dean on Call” at the University of Chicago and
the dean called petitioner and told her to go to the hospital. Levy picked up Cheng, then
picked up petitioner and took her to the hospital where the dean met them. The dean then
“took over” and petitioner was examined by doctors while Levy was questioned by the
police. After petitioner’s exam, Levy went in to see how she was doing and saw bruises on
her legs. On petitioner’s right calf there was a bruise that looked like a handprint.
¶ 12 Petitioner testified that she met respondent in a law school class and they were seated
next to each other in two classes. They did not socialize outside of class.
¶ 13 Portillo invited her to go “beer-for-beer” at the February 15, 2008, Wine Mess. Cheng
was also invited too, and petitioner trusted him and Portillo. Petitioner said she weighed
about 100 pounds during the time in question and had not eaten that day. She met Portillo
and Cheng at the Wine Mess around 4:15 p.m. and they started drinking beer and playing
foosball. Respondent was “lurking around the table area” but petitioner did not speak to him.
Petitioner said she drank continuously from the time she arrived at the Wine Mess until 7
p.m and had about seven beers.
¶ 14 Petitioner left the Wine Mess with Portillo and Cheng and went to the graduate
student pub, where they continued the drinking game. She still had not eaten and continued
to drink from the time she entered the pub until she left two or three hours later. She
estimated that she drank five or six beers at the pub.
¶ 15 After leaving the pub things started to get “fuzzy.” She remembered walking toward
the law school and being drunk and upset with Portillo and Cheng but could not remember
why. She could not remember falling in the street. She remembered being inside the law
school bathroom, crying and wanting to be alone. She remembered respondent calling her
on her cell phone and felt surprised because she did not have his number and did not think
he had hers. She answered the call and had a brief conversation with respondent but could
not remember what they talked about. The next thing she remembered is respondent coming
into the bathroom, taking her by the arm and leading her out.
¶ 16 Petitioner found herself at her apartment, which is two blocks from the law school.
She could not remember how she got there. Inside her apartment respondent lit a cigarette
for her and showed her a tattoo on his arm. Petitioner told respondent she was tired.
¶ 17 Petitioner then found herself sitting in a chair in a “strange place.” She knew she was
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not in her apartment anymore because the furniture was not hers. She remembers
pornography playing on a TV on the wall. Respondent gave her two beers.
¶ 18 She next remembers being in her bed at her apartment and respondent vaginally
penetrating her. She felt a “loss of control,” felt “petrified” and was confused. She told him
“that this was not something I wanted to do and that, you know. I was Catholic. I did go to
church. I just didn’t want to be doing this.” She had an “overwhelming realization”
respondent was not using a condom. She tried to push respondent off her but his body felt
very heavy and she was “so drunk at that point, I don’t think that I could really move much.”
Respondent did not react to what she said, and petitioner “passed out.”
¶ 19 Petitioner woke up the next morning naked, confused and scared. She noticed that
the bed sheets were soaked in urine and that respondent was lying next to her in bed. She told
respondent that he “shouldn’t be there” and he left. Petitioner lay on the bed for a very long
time, curled into a ball and shaking. After a couple of hours she went into the shower with
her clothes on and sat in the bathtub with the water running. She got out of the bathtub and
changed. She noticed a hand-written note on her desk. The note reads:
“Hey, I am sorry about last night. I wasn’t sure what you thought but I guess I just
figured it out this morning. Just so you know, I wasn’t trying to make a move or
anything like that. I do really like you. I hope things are not weird between us. I don’t
know what to say, except sorry for making things weird. I probably just took the
messages I wanted to receive from you. I hope we can at least still be friends. *** I
do like you. I guess that’s out and won’t make things much weirder. Just so you
know. Not in a creepy way but a respectful way and really am sorry if things went
past where you were comfortable. [Respondent.]”
¶ 20 Petitioner did not call the police because she was in a “state of shock” and did not
want “strange people” in her apartment when she was already “just so terrified.” She knew
she “needed to tell someone [she] was close with.” She tried to contact Cheng at 3 p.m. on
G-chat and on the phone, but he ignored her. She tried to find a condom wrapper because she
remembered “thinking that [respondent] had put on a condom” and was hoping to find one
but could not. She did not see either of the beer bottles from the night before. She kept two
condoms in a drawer next to her bed, and both were still there. She looked at the call log on
her cell phone and saw she had received a call from respondent at around 11 p.m. the
previous day. She noticed that all the text messages in her phone had been deleted and did
not know how that had happened.
¶ 21 Eventually Cheng called petitioner back and she told him what happened. Later on
Levy called petitioner and petitioner told Levy she needed to find a rape crisis center. Levy
agreed to help. Petitioner also spoke to Bonnie Kanter, the sexual abuse counselor on call at
the University of Chicago. Kanter told her to go to the University of Chicago Hospital. Levy
said she would pick up petitioner and take her there.
¶ 22 Petitioner then got a text message from Ben Burry, saying he was on his way to pick
her up to go to dinner. She had forgotten that they had made plans to go to dinner the night
before and told Burry it was ok to pick her up. While they were at dinner she did not tell
Burry what had happened with respondent the night before because she did not want “more
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people being upset.” When she tried eating, she felt sick and went into the bathroom to throw
up, so Burry took her back to her apartment.
¶ 23 Levy picked petitioner up and took her to the hospital that night. The police came and
interviewed Levy, petitioner and Cheng. Petitioner underwent extensive and invasive medical
examinations. She was given medication to prevent pregnancy, sexually transmitted diseases
and HIV. The medications made her nauseous and she lost about 10 pounds in the weeks
after. One of the nurses said that a bruise on her calf looked like a “grab mark.” The police
officers took pictures of the bruises on petitioner’s legs. She told the police she wanted to file
criminal charges against respondent.
¶ 24 Around 4 a.m. on Sunday, February 17, 2008, respondent repeatedly called and texted
petitioner. The text messages said: “I feel terrible about what happened the other night; I
don’t want you to hate me” and “I’m sorry for what happened.” She texted respondent
“please don’t contact me again.” Petitioner ignored respondent’s phone calls.
¶ 25 Petitioner told Kanter she did not want to go to class if she had to sit next to
respondent, and respondent’s seat was moved in the class. She was afraid to see respondent
in the law school and would call Levy to make sure respondent was not around.
¶ 26 On cross-examination petitioner said she did not remember who she spoke to at the
Wine Mess or graduate pub, falling down in the street, why she was upset when she was in
the law school bathroom, where the “strange place” was she was brought to and whether or
not she told the police she went out to eat with Burry. Petitioner admitted that she did not
mention going to eat with Burry at her deposition and that she had told respondent’s attorney
she did not leave her apartment on Saturday, February 16, 2008, until Levy picked her up to
go to the hospital. She said that some of the bruises on her legs had been there before the
night in question.
¶ 27 Detective George Gallagher testified that he interviewed petitioner, Levy and Cheng
at the hospital in the early morning of February 17, 2008. Gallagher found petitioner to be
“credible” during his interview with her. He went to petitioner’s apartment and an evidence
technician took bed sheets and the note respondent had left. A copy of the note was entered
into evidence. A rape kit administered at the hospital was processed by the Illinois State
Police and the vaginal swabs came back positive for the presence of semen.
¶ 28 On cross-examination Gallagher said petitioner did not tell him she went to get a
meal with Burry on February 16, 2008.
¶ 29 Officer Prazmowski testified that petitioner identified respondent as the person who
sexually assaulted her and she had told respondent “I don’t want to do this. I go to church
now.”
¶ 30 Benjamin Burry testified he went to the Wine Mess by himself and met up with
several other law students. He saw petitioner with Portillo and Cheng and said they were
having a drinking competition. He also saw respondent but did not talk to him. Around 6:30
p.m. Burry left with petitioner, Portillo and Cheng and decided to go to a pub on campus.
While they were standing outside the Wine Mess, petitioner, Portillo, Cheng and Burry
exchanged phone numbers with respondent, who was going to another event. They all agreed
to meet up later.
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¶ 31 Burry drove petitioner, Portillo and Cheng to the pub. At the pub he saw petitioner
drinking continuously from the time she arrived until she left. He estimated she had about
seven or eight beers at the Wine Mess and about three or four more at the pub. Petitioner,
Portillo, Cheng and Burry left the pub around 9:30 p.m. Petitioner looked very intoxicated.
Burry did not go with them to the law school because he had another engagement. He invited
them to come with him but Portillo and Cheng said they needed to take petitioner home
because they had promised her to do so.
¶ 32 When Burry woke up the next morning, he saw that petitioner had sent him a text
message in the early morning between 2 and 4 a.m. The text message communicated that she
was “at the bar,” did not know where she was and “there was some sort of shady,
unscrupulous guy at the bar.”
¶ 33 Burry said that he had not made plans to go to dinner with petitioner that night and
that it was an “impromptu invitation.” When they were at dinner petitioner looked like she
had something on her mind and was introverted. She did not seem interested in talking, did
not eat any of her food and spent most of the time in the bathroom.
¶ 34 The parties rested and gave closing arguments. Petitioner’s attorney said that all that
needed to be proven for the civil no-contact order to issue is “that petitioner has been a
victim of a single act of nonconsensual sexual conduct or nonconsensual sexual penetration”
and that “the penetration happened without her freely given consent, her freely given
agreement.” Counsel said that the court could find two bases for issuing the order: (1)
petitioner’s “account has not been rebutted by any alternative description or explanation of
what happened” and/or (2) “that petitioner was rendered incapable of giving freely given
agreement to sexual intercourse because of her highly intoxicated state.”
¶ 35 Respondent’s attorney argued that there was not “enough here to show that there was
a lack of consent.”
¶ 36 The court denied petitioner’s request for a plenary no-contact order. The court framed
the issue in the case as “whether non-consensual sexual penetration occurred in the early
morning hours of February 16th, 2008” and that “the ultimate question comes down to
whether there was consensual sex or not. That’s the ultimate issue. It really all comes down
to [p]etitioner’s credibility.” The court said it had “too many concerns” about petitioner’s
memory and did not know whether petitioner had “an accurate independent recollection of
the events that happened on February 15th and February 16th of 2008.” The court noted that
it looked at the pictures of the bruises on petitioner’s legs but said: “I don’t see a handprint
and I don’t know how those bruises got there and I didn’t have any medical testimony. And
I know that there’s medical records, and I didn’t have any of it.” The court criticized Officer
Gallagher’s testimony on the rape kit because he did not testify to whose semen was
recovered, there was no chain of custody, it was hearsay and he was not qualified as an
expert. The court found the note left by respondent “very equivocal” and did not “take it as
an admission of rape.” The court observed that “petitioner didn’t call the police” or “leave
a voice mail message for her friends.” The court said “I know you didn’t want this to
happen” but found that it was “more likely than not that [petitioner] consented.” The court
denied the petition for a plenary order and terminated the emergency civil no-contact order.
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¶ 37 On appeal, petitioner contends that the circuit court erred by ignoring the statute’s
standard of proof and erroneously construing the Act. Specifically, petitioner argues that the
court’s interpretation of the Act was erroneous because: (1) the statute does not require
corroborating evidence of penetration; (2) the statute does not require the victim to testify
that she was too drunk to consent to establish legal incapacity; and (3) the statute does not
allow the court to presume consent.
¶ 38 We first note that the parties disagree on the standard of review. Petitioner contends
we should review the trial court’s ruling de novo because this case involves the interpretation
of the Act. See Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 877
N.E.2d 1101 (2007). Respondent contends that the trial court’s ruling should be reviewed
under a manifest weight of the evidence standard because the facts are in dispute. See In re
Estate of Savio, 388 Ill. App. 3d 242, 246-47, 902 N.E.2d 1113 (2009).
¶ 39 Here the trial court correctly identified that “[t]he issue is whether non-consensual
sexual penetration occurred in the early morning hours of February 16th, 2008.” The trial
court found the evidence showed petitioner consented to the sexual penetration. Contrary to
petitioner’s argument, the issue before this court does not involve statutory interpretation.
Rather, the issue is whether the trial court correctly found the facts show by a preponderance
of the evidence that petitioner was not entitled to a plenary civil no-contact order. Because
this case involves the application of the Act to disputed facts, we agree with respondent that
we should review the trial court’s finding under a manifest weight of the evidence standard.
See In re Estate of Savio, 388 Ill. App. 3d at 246-47. “A finding is against the manifest
weight of the evidence when an opposite conclusion is apparent or when the findings appear
to be unreasonable, arbitrary, or not based on the evidence.” Vancura v. Katris, 238 Ill. 2d
352, 385-86, 939 N.E.2d 328 (2010) (citing Eychaner v. Gross, 202 Ill. 2d 228, 252, 779
N.E.2d 1115 (2002)).
¶ 40 The purpose of the Act is to provide a civil remedy to protect victims of sexual
assault from future interactions with the offender. 740 ILCS 22/102 (West 2008). A petition
under the Act may be filed “by any person who is a victim of non-consensual sexual conduct
or non-consensual sexual penetration, including a single incident of non-consensual sexual
conduct or non-consensual sexual penetration.” 740 ILCS 22/201(1) (West 2008). “ ‘Sexual
penetration’ means any contact, however slight, between the sex organ or anus of one person
by an object, the sex organ, mouth or anus of another person.” 740 ILCS 22/103 (West
2008). Evidence of the “emission of semen is not required to prove sexual penetration” and
the court “may not require physical injury on the person of the victim” in determining
whether to issue a civil no-contact order. 740 ILCS 22/103, 213(a) (West 2008). The Act
provides that, if “the court finds that the petitioner has been a victim of non-consensual
sexual conduct or non-consensual sexual penetration, a civil no[-]contact order shall issue.”
740 ILCS 22/213 (West 2008).
¶ 41 The standard of proof in a proceeding under the Act “is proof by a preponderance of
the evidence.” 740 ILCS 22/204 (West 2008). A “preponderance of the evidence” means that
the evidence presented renders a fact more likely than not. People v. Brown, 229 Ill. 2d 374,
385, 892 N.E.2d 1034 (2008).
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¶ 42 Here we find petitioner proved by a preponderance of the evidence that she was the
victim of nonconsensual sexual penetration under the Act. On Friday, February 15, 2008,
while petitioner was extremely intoxicated in the law school bathroom, respondent arrived,
went into the bathroom and left with petitioner. The call log on petitioner’s phone showed
that petitioner answered a call from respondent around 11 p.m. Petitioner remembers
respondent taking her by the arm and leading her out.
¶ 43 Petitioner was taken to a “strange place” and remembers respondent giving her two
beers. Her next memory is being in her bed at her apartment with respondent vaginally
penetrating her. Petitioner said she felt “petrified” and told respondent “that this was not
something I wanted to do.” She testified that she tried to push respondent off of her but was
so intoxicated she could not “really move much.” When petitioner awoke the next morning
to find respondent lying next to her, she immediately told him he “shouldn’t be there” and
he left. This aspect of petitioner’s testimony was unimpeached and unrebutted. See Bazydlo
v. Volant, 164 Ill. 2d 207, 215, 647 N.E.2d 273 (1995) (“the fact finder may not arbitrarily
or capriciously reject unimpeached testimony”).
¶ 44 We believe that if petitioner “didn’t want [the sexual assault] to happen,” told
respondent the same and tried to push him off of her, she did not consent to the sexual
penetration. See 740 ILCS 22/103 (West 2008) (“ ‘[n]on-consensual’ means a lack of freely
given agreement”); People v. Bowen, 241 Ill. App. 3d 608, 617-18, 609 N.E.2d 346 (1993)
(where the facts “present circumstances affording a person of ordinary intelligence a
reasonable opportunity to know the victim did not consent to have sexual relations” there is
no consent).
¶ 45 The note left by respondent and the text messages he sent her after the incident
further corroborate petitioner’s testimony and reflect respondent’s guilty conscience. In the
note, respondent wrote: “Hey, I am sorry about last night,” “sorry for making things weird”
and “really am sorry if things went past where you were comfortable.” In the early morning
of Sunday, February 17, 2008, respondent texted petitioner: “I feel terrible about what
happened the other night; I don’t want you to hate me” and “I’m sorry for what happened.”
While the trial judge found the note “very equivocal,” when viewed with the facts in their
entirety, we believe the note and text messages are probative that the sexual penetration was
not consensual. We also note that respondent did not testify at trial, and we may assume his
testimony would have been unfavorable to his case. See Nasrallah v. Davilla, 326 Ill. App.
3d 1036, 1044, 762 N.E.2d 25 (2001) (the trier of fact may draw negative inferences against
a party that refuses to testify).
¶ 46 There was no unreasonable delay in petitioner’s outcry. Petitioner testified that she
did not call the police on the morning in question because she was in a “state of shock” and
did not want “strange people” in her apartment when she was already “just so terrified.” See
People v. Bowen, 241 Ill. App. 3d at 620 (“[a] delay in reporting incidents of sexual assault
may be reasonable where the victim’s silence is attributed to fear, shame, guilt and
embarrassment”). Petitioner knew she “needed to tell someone [she] was close with” and
later called Cheng to tell him “I know I got raped.”
¶ 47 The events of that night further support petitioner. At the hospital petitioner
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underwent an extensive and invasive medical examination. She took medications to prevent
pregnancy, sexually transmitted diseases and HIV that made her so nauseous she lost 10
pounds in the weeks after. Detective Gallagher testified he found petitioner to be “credible”
and that a rape kit administered at the hospital came back positive for the presence of semen.
¶ 48 While a fair amount of evidence was presented showing petitioner’s lack of consent,
we find no evidence to suggest petitioner expressly or implicitly consented. See Bazydlo, 164
Ill. 2d at 215. The trial court provided no explanation to justify its finding that “it is more
likely than not that [petitioner] consented.” There was no requirement for petitioner to
provide medical evidence of sexual penetration or physical injury. 740 ILCS 22/103, 213(a)
(West 2008) (the court “may not require physical injury on the person of the victim” in
determining whether to issue a civil no-contact order). Respondent presented no evidence of
a prexisting relationship between petitioner and respondent. See 725 ILCS 5/115–7(a) (West
2008) (in criminal prosecutions for sexual assault, evidence concerning the past sexual
conduct of the victim may be admissible when offered by the accused to show the victim
consented to the sexual conduct). Respondent also presented no motive for petitioner to
falsely accuse him of the assault.
¶ 49 Respondent points to relatively minor contradictions in petitioner’s testimony to
justify the trial court’s ruling that petitioner was not credible, such as petitioner’s deposition
statement that she stayed in her apartment the entire day on February 16, 2008, before going
to the hospital. But, given the weight of the evidence presented, we find such minor
contradictions inconsequential as to the central issue of whether nonconsensual sexual
penetration occurred. See Bowen, 241 Ill. App. 3d at 620 (“minor inconsistencies in the
testimony do not, of themselves, create a reasonable doubt as to defendant’s conviction”).
¶ 50 Having found the evidence sufficient to prove petitioner was the victim of
nonconsensual sexual penetration, we need not address petitioner’s contention that she was
legally unable to give consent due to intoxication.
¶ 51 We find that petitioner met her burden to show by a preponderance of the evidence
that she was the victim of nonconsensual sexual penetration under the Act. She is entitled
to an order of protection under the Act, and the trial court’s findings to the contrary were
against the manifest weight of the evidence. We remand this cause to the trial court for the
issuance of a plenary civil no-contact order against respondent under sections 213 and 215
of the Act. 740 ILCS 22/213, 215 (West 2008).
¶ 52 Reversed and remanded.
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