The Varying Meanings of Sexual Misconduct

Because of the onslaught trend and frenzy of allegations related to “sexual misconduct,” it is very easy to misconstrue and confuse the meanings of individual instances of allegations. “Sexual Misconduct” is more of an umbrella term relating to variety of types of allegations. “Sexual Misconduct” for example does not always mean an accuser is a victim of an actual physical sexual assault by the accused. This post is to provide the public with a clear definitional understanding of different instances of allegations that flow from the umbrella term of “sexual misconduct.”

CIVIL

Definitions of Civil Actions Related to “Sexual Misconduct” in Illinois and On the Federal Level

ILLINOIS

Illinois Human Rights Act

According to the Illinois Human Rights Act, sexual harassment is defined as:
Any unwelcome sexual advances, requests for sexual favors or any conduct of a sexual nature when:

1. Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment;
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or 3. Such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment

The Illinois Human Rights Act also identifies other conduct which may constitute sexual harassment that includes:

• Verbal: Sexual innuendos, suggestive comments, insults, humor, and jokes about sex, anatomy or gender-specific traits, sexual propositions, threats, repeated requests for dates, or statements about other employees, even outside of their presence, of a sexual nature.
• Non-Verbal: Suggestive or insulting sounds (whistling), leering, obscene gestures, sexually suggestive bodily gestures, “catcalls”, “smacking” or “kissing” noises.
• Visual: Posters, signs, pin-ups or slogans of a sexual nature, viewing pornographic material or websites.
• Physical: Touching, unwelcome hugging or kissing, pinching, brushing the body, any coerced sexual act, or actual assault.
• Textual/Electronic: “Sexting” (electronically sending messages with sexual content, including pictures and video), the use of sexually explicit language, harassment, cyber stalking and threats via all forms of electronic communication (e-mail, text/picture/video messages, intranet/on-line postings, blogs, instant messages and social network websites like Facebook and Twitter).

FEDERAL

Title VII of the Civil Rights Act of 1964

The EEOC (Equal Employment Opportunity Commission) defines sexual harassment as a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
• The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser’s conduct must be unwelcome.

Under Title VII there are two recognized types of sexual harassment:

1) Quid Pro Quo
Quid pro quo sexual harassment occurs when tangible employment benefits are conditioned on one’s compliance with a harasser’s sexual demands. Brill v. Lante Corp., 119 F.3d 1266, 1274 (7th Cir. 1997); Bryson v. Chicago State University, 96 F.3d 912, 915 (7th Cir. 1996)
Section 1604.11 of the Equal Employment Opportunity Commission guidelines explicitly describes such conduct:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or impliedly a term or condition of an individual’s employment, [or] submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. 29 C.F.R. §1604.11(a).

2) Hostile Work Environment
A plaintiff who alleges a hostile work environment in violation of Title VII must demonstrate that (a) the unwelcome conduct was of a sexual nature, (b) the conduct was directed at the plaintiff because of his or her sex, (c) the conduct was severe or pervasive enough to create a hostile work environment, and (d) there is a basis for employer liability. Roby v. CWI, Inc., 579 F.3d 779, 784 (7th Cir. 2009).

CRIMINAL

Definitions of Crimes related to “Sexual Misconduct” in Illinois:

(720 ILCS 5/11-1.40) Predatory criminal sexual assault of a child.
(a) A person commits predatory criminal sexual assault of a child if that person is 17 years of age or older, and commits an act of contact, however slight, between the sex organ or anus of one person and the part of the body of another for the purpose of sexual gratification or arousal of the victim or the accused, or an act of sexual penetration, and the victim is under 13 years of age.

(720 ILCS 5/11-1.20) Criminal sexual assault.
(a) A person commits criminal sexual assault if that person commits an act of sexual penetration and:

(1) uses force or threat of force;
(2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent;
(3) is a family member of the victim, and the victim is under 18 years of age; or
(4) is 17 years of age or over and holds a position of trust, authority, or supervision in relation to the victim, and the victim is at least 13 years of age but under 18 years of age.

(720 ILCS 5/11-1.30) Aggravated Criminal Sexual Assault.

(a) A person commits aggravated criminal sexual assault if that person commits criminal sexual assault and any of the following aggravating circumstances exist during the commission of the offense or, for purposes of paragraph (7), occur as part of the same course of conduct as the commission of the offense:

(1) the person displays, threatens to use, or uses a dangerous weapon, other than a firearm, or any other object fashioned or used in a manner that leads the victim, under the circumstances, reasonably to believe that the object is a dangerous weapon;
(2) the person causes bodily harm to the victim, except as provided in paragraph (10);
(3) the person acts in a manner that threatens or endangers the life of the victim or any other person;
(4) the person commits the criminal sexual assault during the course of committing or attempting to commit any other felony;
(5) the victim is 60 years of age or older;
(6) the victim is a person with a physical disability;
(7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim without the victim’s consent or by threat or deception for other than medical purposes;
(8) the person is armed with a firearm;
(9) the person personally discharges a firearm during the commission of the offense; or
(10) the person personally discharges a firearm during the commission of the offense, and that discharge proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.

(720 ILCS 5/11-1.60) Aggravated criminal sexual abuse.

(a) A person commits aggravated criminal sexual abuse if that person commits criminal sexual abuse and any of the following aggravating circumstances exist (i) during the commission of the offense or (ii) for purposes of paragraph (7), as part of the same course of conduct as the commission of the offense:

(1) the person displays, threatens to use, or uses a dangerous weapon or any other object fashioned or used in a manner that leads the victim, under the circumstances, reasonably to believe that the object is a dangerous weapon;
(2) the person causes bodily harm to the victim;
(3) the victim is 60 years of age or older;
(4) the victim is a person with a physical disability;
(5) the person acts in a manner that threatens or endangers the life of the victim or any other person;
(6) the person commits the criminal sexual abuse during the course of committing or attempting to commit any other felony; or
(7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim for other than medical purposes without the victim’s consent or by threat or deception.
(b) A person commits aggravated criminal sexual abuse if that person commits an act of sexual conduct with a victim who is under 18 years of age and the person is a family member.
(c) A person commits aggravated criminal sexual abuse if:
(1) that person is 17 years of age or over and: (i) commits an act of sexual conduct with a victim who is under 13 years of age; or (ii) commits an act of sexual conduct with a victim who is at least 13 years of age but under 17 years of age and the person uses force or threat of force to commit the act; or
(2) that person is under 17 years of age and: (i) commits an act of sexual conduct with a victim who is under 9 years of age; or (ii) commits an act of sexual conduct with a victim who is at least 9 years of age but under 17 years of age and the person uses force or threat of force to commit the act.
(d) A person commits aggravated criminal sexual abuse if that person commits an act of sexual penetration or sexual conduct with a victim who is at least 13 years of age but under 17 years of age and the person is at least 5 years older than the victim.
(e) A person commits aggravated criminal sexual abuse if that person commits an act of sexual conduct with a victim who is a person with a severe or profound intellectual disability.
(f) A person commits aggravated criminal sexual abuse if that person commits an act of sexual conduct with a victim who is at least 13 years of age but under 18 years of age and the person is 17 years of age or over and holds a position of trust, authority, or supervision in relation to the victim.

(720 ILCS 5/11-1.50) Criminal sexual abuse.

(a) A person commits criminal sexual abuse if that person:
(1) commits an act of sexual conduct by the use of force or threat of force; or
(2) commits an act of sexual conduct and knows that the victim is unable to understand the nature of the act or is unable to give knowing consent.
(b) A person commits criminal sexual abuse if that person is under 17 years of age and commits an act of sexual penetration or sexual conduct with a victim who is at least 9 years of age but under 17 years of age.
(b) A person commits criminal sexual abuse if that person commits an act of sexual penetration or sexual conduct with a victim who is at least 13 years of age but under 17 years of age and the person is less than 5 years older than the victim.

(720 ILCS 5/11-6) Indecent solicitation of a child.

(a) A person of the age of 17 years and upwards commits indecent solicitation of a child if the person, with the intent that the offense of aggravated criminal sexual assault, criminal sexual assault, predatory criminal sexual assault of a child, or aggravated criminal sexual abuse be committed, knowingly solicits a child or one whom he or she believes to be a child to perform an act of sexual penetration or sexual conduct as defined in Section 11-0.1 of this Code.
(a-5) A person of the age of 17 years and upwards commits indecent solicitation of a child if the person knowingly discusses an act of sexual conduct or sexual penetration with a child or with one whom he or she believes to be a child by means of the Internet with the intent that the offense of aggravated criminal sexual assault, predatory criminal sexual assault of a child, or aggravated criminal sexual abuse be committed.

(720 ILCS 5/11-25) Grooming.

(a) A person commits grooming when he or she knowingly uses a computer on-line service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child, a child’s guardian, or another person believed by the person to be a child or a child’s guardian, to commit any sex offense as defined in Section 2 of the Sex Offender Registration Act, to distribute photographs depicting the sex organs of the child, or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child.

(720 ILCS 5/11-9.1) Sexual exploitation of a child.

(a) A person commits sexual exploitation of a child if in the presence or virtual presence, or both, of a child and with knowledge that a child or one whom he or she believes to be a child would view his or her acts, that person:
(1) engages in a sexual act; or
(2) exposes his or her sex organs, anus or breast for the purpose of sexual arousal or gratification of such person or the child or one whom he or she believes to be a child.
(a-5) A person commits sexual exploitation of a child who knowingly entices, coerces, or persuades a child to remove the child’s clothing for the purpose of sexual arousal or gratification of the person or the child, or both.

As the onslaught of allegations continue to permeate the media, it is important that public is aware of the varying definitions and aspects of the term “sexual misconduct” as it is easy to misconstrue what this term truly means. If you or someone you know has been charged or accused of sexual misconduct, it is imperative that contact an experienced criminal defense attorney to help you navigate through these complex issues. Contact Wigell Criminal Defense to speak to an experienced attorney to discuss your matter.

A Legal Guide to the Sexual Harassment Frenzy

Media coverage of alleged sexual harassment is everywhere. The major news networks – MSNBC, CNN, NBC, CBS, ABC, WGN – are not only reporting on past and the latest allegations, but have also assembled panels of “experts” to voice opinions on what all of this means. Social media, of course, is awash in opinions, and there are dozens of new thinkpieces every day on various cultural and news blogs. Experienced criminal defense attorneys know how to assert control over this dialogue and media morass; at Wigell Law Group, we have long-standing relationships with journalists and reporters in both visual and print media that help us do so and get the defendant’s perspective out to viewers at home. This is crucial to provide a balanced look at the situation and to protect our clients’ rights.

This sexual misconduct frenzy has significant implications on our social culture and our interpretation of our past social interactions. Flirtation is a part of normal and healthy romantic interactions, and is now being viewed through the lens of sexual harassment – sometimes even retroactively! Garrison Keillor, of Minnesota Public Radio, for example, reported that he meant to pat a woman’s back consolingly and accidentally made contact with her bare skin. She recoiled, he said, and he apologized. The current frenzy over sexual harassment is likely causing many people to look back on their own experiences and think that perhaps they might have been victims as well, at least under the current stringent concepts of sexual harassment.

And as we can see from the stories of men like Harvey Weinstein, Matt Lauer, Charlie Rose, George Takei, Russell Simmons, Kevin Spacey, Ed Westwick, Ben Affleck, Pixar’s John Lasseter, Roy Moore, Jeffrey Tambor, Lena Dunham, Brett Ratner, Al Franken, Louis CK, George H.W. Bush, Richard Dreyfuss, and surely more to come, events from many years ago can resurface, recontextualized, and there can be a very public reckoning.

This frenzy is also likely affecting our future social interactions. As with Koehler, many would seem far more reluctant to console another, for fear of accusation, or to flirt with someone they were attracted to. All of these implications are noteworthy.

What is not a focus, however, is how the individuals involved deal with the confrontational event.

Allegations and accusations of sexual misconduct, including sexual harassment, are seldom without disagreements. The accuser and the accused are in diametrically opposed positions, with one saying that misconduct occurred and the other either maintaining it did not or arguing the interpretation of the conduct in question. Even the terms used prior to determining actual or legal guilt can at times be prejudicial. Words like “perpetrator” and “victim” are very loaded and charged.

There is also room for error, without denigrating the suffering of those who feel wronged. False or at the very least exaggerated accusations, forced confessions wrenched from the accused, and motives rooted in revenge are prevalent. Shame and embarrassment, fear of reprisals, and the unfounded hope of reconciliation are all also prevalent.

Each side deserves to be heard. Each side, the one accusing and the one being accused, deserves to have an experienced attorney represent their interests and fight on their behalf. Only after a balanced, calm, and holistic approach to the investigation can justice occur.

Separate from the court of public opinion is the concept of legal analysis. Unlike the media, which can be well intentioned or self-righteous, legal analysis does not immediately jump to a conclusion. It certainly does not assume a conclusion and then require a remedy, i.e., punishment, money damages, a loss of contractual rights (getting fired, losing endorsements, being pressured to resign), etc.

Legal analysis, instead, is a process. First, the facts must be determined: what really did happen and what is either false or an exaggeration. Then, the law must be applied to those case facts. There are many sub-steps in this process. After all, complex questions and situations require complex and thoughtful analysis.

Facts are unique and case specific. This requires a complete and unbiased investigation by neutral and objective third parties.

Sexual harassment can be both a civil and criminal offense. Civil law protects and allows individuals to sue (to file a lawsuit) that asserts a claim. Money damages is the primary, but not sole, remedy in civil actions. Criminal law, on the other hand, seeks to protect society (all individuals) from the wrongdoing of a specific individual or corporation. Imprisonment, restitution to the individual victim (to “make that individual whole”) and fines are the primary remedies in criminal actions.

Two of the most commonly asked questions in sexual harassment matters are regarding the proper venue and the statute of limitations. Venue is where the action can be filed. Although this is a complex question, it is most often answered by determining where the wrongdoing took place and where the victim and/or accuser reside.

Statute of Limitations (S/L) questions are governed by local law and by proper venue. Civil and criminal S/L are governed by different laws (called statutes), and many times are different. Please use the links below to access additional information per Illinois statutes.

720 ILCS 5/3-6 governs the criminal statute of limitations on many offenses including sex-related offenses – regarding both adult and minors. This also covers offenses such as child pornography and prostitution. See specifically 720 ILCS 5/3-6(j)(1), which states that when the victim is under 18 years of age at the time of a sexual offense, a prosecution may be commenced at any time. This means there is no S/L

735 ILCS 5/13-202.2 governs the S/L in sexual misconduct involving children, or those under the age of 18. Specifically, 735 ILCS 5/13-202.2(d) states that the S/L does not run during a time that the minor is abused (threatened, intimidated, manipulated, or the victim of fraud perpetrated by the abuser), and that the S/L runs only after the minor reaches the age of 18, and if the person is under a legal disability at the time they turn 18, the S/L does not run until the disability is removed

720 ILCS 5/11-1.80 is the civil statute for sex crimes, and explains the civil liability that those convicted of a criminal sexual offense are exposed to.

 

What should a victim do?

To whom should a victim report the wrongdoing?

How should the report about the wrongdoing be transmitted?

If confronted, what should the accused do? How should he or she respond?

Is going to the media a good first step?

Is an in-person confrontation with the accused a good idea?

What is the value of the claim? From the victim’s perspective? From the perspective of the accused? Whose perspective controls?

Only an experienced local attorney can answer these questions. This is not simple math; it is not 1+1 = 2. Complex questions such as these demand complete, detailed analysis. At Wigell Law Group, we perform this analysis with regularity, and particular attention to nuance and implications.

As a sampling of my work, over the past 40+ years I have worked with victims, championing many high profile sex abuse and sexual harassment victims as well as the accused. That is correct: I have represented people on both sides of the wrongdoing. Good lawyering requires an understanding of both sides of a position. Understanding the strengths and weaknesses, the pros and cons, the leverage points, the deal-making and deal-breaking points, the negotiation options, and the strategies is essential.

I have also represented high profile (as well as regular) people in the political, corporate, theatrical, entertainment, professional sports, academic, fine art, and religious communities.

The victims I have championed have been from many different demographic groups: minors, majority-aged, older, race, ethnicity, sexual orientation (heterosexual, homosexual, bisexual and transgender), etc.

The accused are sometimes in positions of trust over the victims, which creates a charged environment and requires extra care and attention to detail. These relationships include supervisor and employee, corporate officers and supervisors, therapists and patients, dentists and patients, medical doctors and patients, teachers and students, school administrators and employees, mentors and mentees, religious leaders and followers, and more.

Sometimes, the report was of a recent wrongdoing; more often than not, the occurrences were a few years or even decades before. Older cases can be based on triggered memories, repressed memory syndrome (a topic that remains contentious and hotly debated in the medical and psychiatric community), or triggered by an event that relates to the individual’s PTSD. This adds all kinds of confusion and layers to the situation and requires an even more meticulous and holistic defense strategy.

I have also represented clients in both civil and criminal cases. Knowledge of the two very different and distinct areas, as well as the interplay between them, is crucial for any defendant that wants his attorney to maximize his position and limit his exposure. There are also different kinds of criminal cases in which these situations arise; I have successfully represented people during investigations as well as in cases that were charged on both the state and federal level.

Why didn’t you know about this? Why didn’t the media feature these victories? Because they were never brought to the media’s attention, or because it wasn’t the socially encouraged viewpoint.

In some of these cases, the victims wanted a confrontation with the accused. We accomplished that via personal meetings and significant money settlements. Abusers also wanted closure, so they did whatever was necessary to respectfully compensate the victims, both emotionally and financially.

Considering the current frenzy, the concept that current accusations that may be true, false, or exaggerated, merits careful thought.

I am skilled at representing individuals involved in these matters, on multiple levels and from multiple positions and perspectives. These are complex issues that, despite the slew of recent firings and resignations and loud condemnations, our society will not solve overnight. Complex issues require complex planning, insight, and strategy. They require skilled attorneys who use sophisticated, layered, nuanced approaches to create holistic winning defense strategies, like myself and my other attorneys at Wigell Law Group.

Representation of a Wide Multitude of Criminal Charges

Wigell Criminal Defense prides itself on its Holistic Winning Defense Strategies. The firm has represented many clients in a wide variety of criminal charges in the State of Illinois. Wigell Criminal Defense zealously represents their clients. We Win Criminal Defense Cases Other Lawyers Said Were Impossible To Win.

Wigell Criminal Defense (as of 11/2/17) represents clients charged in the State of Illinois of the following crimes/charges:

1. Sex Crimes
2. White Collar Crimes
3. Drug Crimes
4. Violent Crimes
5. Weapons Crimes
6. Property Crimes
7. Other Crimes

1. Sex Crimes

Aggravated Criminal Sexual Assault (720 ILCS 5/12-14)
Attempt Aggravated Criminal Sexual Assault (720 ILCS 5/8-4(11-1.30)
Aggravated Criminal Sexual Abuse (720 ILCS 5/12-16)
Aggravated Criminal Sexual Abuse (Juvenile) (720 ILCS 5/12-16)
Criminal Sexual Abuse (720 ILCS 5/11-1.50)
Attempt Aggravated Criminal Sexual Abuse of a Family Member under 18 (720 ILCS 5/11-1.60 (b))
Criminal Sexual Assault (720 ILCS 5/11-1.20)
Predatory Criminal Sexual Assault (720 ILCS 5/12-14.1)
Sexual Exploitation of a Child (720 ILCS 5/11-9.1)
Possession of Child Pornography (720 ILCS 5/11-20.1)
Aggravated Possession of Child Pornography (720 ILCS 5/11-20.1)
Dissemination of Child Pornography (720 ILCS 5/11-20.1)
Traveling to Meet a Minor (720 ILCS 5/11-26)
Public Indecency (720 ILCS 5/11-9)
Obscenity (720 ILCS 5/11-20)
Indecent Solicitation of a Child (720 ILCS 5/11-6(a))
Grooming (720 ILCS 5/11-25)
Solicitation to Meet a Child (720 ILCS 5/11-6.6(a))
Sex Trafficking (720 ILCS 5/10-9)

2. White Collar Crimes

Continuing Financial Crimes Enterprise (720 ILCS 5/17-10.6(h))
Financial Institution Fraud (720 ILCS 5/17-10.6(c))
RICO (720 ILCS 5/33G)
Theft (720 ILCS 5/16-1)
Forgery (720 ILCS 5/17-3)
Identity Theft (720 ILCS 5/16-30)
Deceptive Practices (720 ILCS 5/17-1)
Mail Fraud & Wire Fraud (720 ILCS 5/17-24)
Computer Fraud (720 ILCS 5/17-50)
Internet Offenses (720 ILCS 5/16-40)

3. Drug Crimes

Drug Trafficking (720 ILCS 570/401.1)
Cannabis Trafficking (720 ILCS 550/5.1)
Unlawful Possession of Cannabis with Intent to Deliver (720 ILCS 550/5(g))
Manufacture or Delivery of Cannabis (720 ILCS 550/5(d))
Unlawful Possession of Cannabis (720 ILCS 550/4(g))
Manufacture and Delivery of Cocaine (720 ILCS 570/401(a)(2))C))
Possession of Cocaine (720 ILCS 570/402(a)(2)(C))
DUI (625 ILCS 5/11-501(A))
Aggravated DUI (625 ILCS 5/11-501(D))

4. Violent Crimes

First Degree Murder (720 ILCS 5/9-1)
Attempted First Degree Murder (720 ILCS 5/8-4(a))
RICO (720 ILCS 5/33G)
Armed Robbery (720 ILCS 5/18-2)
Attempt Armed Robbery (720 ILCS 8/4 (18-2(a)(2))
Aggravated Robbery (720 ILCS 5/18-1)
Home Invasion (720 ILCS 5/19-6)
Aggravated Kidnapping (720 ILCS 5/10-2)
Aggravated Battery (720 ILCS 5/12-3.05)
Aggravated Domestic Battery (720 ILCS 5/12-3.3)
Battery (720 ILCS 5/12-3)
Aggravated Assault (720 ILCS 5/12-2)
Unlawful Restraint (720 ILCS 5/10-3)
Aggravated Unlawful Restraint (720 ILCS 5/10-3.1 (A))

5. Weapons Crimes

Armed Violence (720 ILCS 5/33A-2(a))
Unlawful Use of a Weapon (720 ILCS 5/24-1)
Aggravated Unlawful Use of a Weapon (720 ILCS 5/24-1.6)
Unlawful Use or Possession of a Weapon by a Felon (720 ILCS 5/24-1.1)
Aggravated Discharge of a Firearm (720 ILCS 24/1.2(a)(2))
Defacing the Identification Marks of a Firearm (720 ILCS 5/24-5(b))

6. Property Crimes

Residential Burglary (720 ILCS 5/19-3)
Retail Theft (720 ILCS 5/16-25)
Possession of a Stolen Motor Vehicle (625 ILCS 5/4-103)
Felony Driving on a Suspended/Revoked License (625 5/6-303(a)/(d))
Obstruction of Justice (720 ILCS 5/31-4)

7. Other Crimes

Concealing or Aiding a Fugitive (720 ILCS 5/31-5(a))
Violation of Bail Bond (720 ILCS 5/32-10)
Violation of Probation (730 ILCS 5/5-6-4)
Violation of Mandatory Supervised Release (730 ILCS 5/3-3-9)

Illinois Eliminates The Statute of Limitations for Child Sex Crimes

Illinois has now eliminated the statute of limitations for commencing a criminal prosecution in certain sex offenses involving a minor (under the age of 18 years at the time of the offense).

Previously, the law in Illinois stated that a minor victim of sexual assault (under the age of 18 at the time of the offense) must file criminal charges twenty years after attaining the age of 18. Which previously meant that charges must be filed before the “victim’s” 38th birthday. This is no longer the case in Illinois.

The new law (SB189) passed by both the Illinois Senate and Illinois House, and approved by the Governor now eliminates the Statute of Limitations in its criminal prosecutions for child sex cases.

SB189 provides in pertinent part:

720 ILCS 5/3-6(j)(1) When the victim is under 18 years of age at the time of the offense, a prosecution for criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, aggravated criminal sexual abuse, or felony criminal sexual abuse may be commenced at any time when corroborating physical evidence is available or an individual who is required to report an alleged or suspected commission of any of these offenses under the Abused and Neglected Child Reporting Act fails to do so.

So essentially, a prosecution for the above-named sex offenses in relation to minors can be filed at any time. Additionally, the new law eliminates the requirement that corroborating physical evidence be available. The new law also eliminates the requirement that an individual must fail to report any of these offenses under the Abused and Neglected Child Reporting Act.

Note: The new law is not without its restrictions.

The primary restriction of the bill is that the law is not “retroactive.” What not being retroactive means is that a new law does not apply to incidents prior to the new law’s enactment, August 11, 2017. An example to best illustrate the issue of retroactively in this context is as follows:

  •  If an individual was 38 years old (20 years after attaining one’s 18th birthday after the alleged sexual abuse) prior to the enactment date of the new law, the old law still applies. Basically, if the individual turned 38 years old on August 10, 2017, the twenty-year requirement to commence a criminal prosecution under the old law had expired and still applies. The new law would not apply since it was passed on August 11, 2017, thus, it was not in effect at the time the statute of limitations under the old law expired.

The Change in the Statute of Limitations Applies to Criminal Cases Only, Not Civil Cases

It should also be noted that this bill ONLY APPLIES to the commencement of criminal prosecutions for the above-mentioned types of sex offenses. The bill does not apply to filing a civil case. Criminal and Civil laws differ in purpose:

  • The purpose of a criminal law is to protect society from criminal wrongdoing and to punish the wrongdoer.
  • The purpose of a civil law is to give a person who was sexually abused the right to seek monetary compensation from the alleged perpetrator.

The current Statute of Limitations for filing a civil cause of action in the civil courts is 20 years after the victim’s 18th birthday (i.e. the person’s 38th birthday).

However, A bill (HB 3629) has recently been proposed to eliminate the 20-year statute of limitations requirement in its entirety for civil cases. The objective of the new bill would give victims the opportunity to file a civil case at ANY TIME without any time limitations for filing. It currently is awaiting House approval before proceeding to the Senate.

Conclusion:

If you or someone you know is a victim of a sex crime when they were a minor, it is important to consult with an experienced attorney. An experienced attorney will determine whether the statute of limitations either civilly or criminally allows or eliminates an action.

If you or someone you know has been charged or is under investigation for a sex crime, it is imperative you speak to an experienced criminal defense attorney. It is imperative to consult an experienced criminal defense attorney who is well versed in not only the nuances and complexities of sex crimes, but the nuances and complexities posed when the issue of an extended statute of limitations arises.

Contact Wigell Criminal Defense to speak to an experienced attorney regarding these types of charges.

Charges: Aggravated Criminal Sexual Abuse-Class 2 Felony (3-7 Years IDOC); Potential Result: 3-7 years prison; Lifetime Sex Offender Registration Requirement; WCD RESULT: PROBATION ON A REDUCED CHARGE OF MISDEMEANOR BATTERY; NO PRISON TIME; NO FELONY CONVICTION; NO MANDATORY LIFETIME SEX OFFENDER REGISTRATION REQUIREMENT

Our client, a successful businessman, was charged with Aggravated Criminal Sexual Abuse. Specifically, a 12 year old friend of his daughter accused our client of touching her in an inappropriate sexual manner one night during a sleepover.

The charge of Aggravated Criminal Sexual Abuse is broken down as follows:

  • Aggravated Criminal Sexual Abuse
    • Aggravated Criminal Sexual Abuse is a class 2 felony punishable from 3-7 Years in the penitentiary (Illinois Department of Corrections)
    • An individual convicted of Aggravated Criminal Sexual Abuse must serve at least 50% of their sentence before being eligible for Mandatory Supervised Release (Formerly Known as Parole).
    • A conviction of this charge requires MANDATORY LIFETIME SEX OFFENDER REGISTRATION.

Fearful of the implications this charge could have on his future, career and family; the client hired Wigell Criminal Defense to represent him. After a detailed and methodical review of the discovery and multiple meetings with the client, it was determined that the State’s case had multiple weaknesses and the case should be taken to trial.

As the case progressed, the Assistant State’s Attorney assigned to the case filed a 115-10 Motion. This type of motion is typically filed to allow certain statements admitted into evidence at a trial which would be normally considered hearsay.  Hearsay can be defined as a statement made by someone not testifying in court that to be used as evidence to show that a defendant committed a crime (the truth of the matter asserted).  Hearsay is typically prohibited from being introduced as evidence at trial outside of various exceptions enumerated in the law.  In this case, Illinois law has a Statutory exception under 725 ILCS 5/115-10 that allows for out of court statements in cases involving a physical or sexual act perpetrated against a child who is under the age of 13.  This allows “outcry” witnesses to testify in court to an out of court statement the child made to them.

In our client’s case, the complaining witness made an “outcry statement” to two witnesses regarding the alleged sexual touching she accused our client of committing against her. The attorneys of Wigell Criminal Defense acknowledged the filing of this motion and indicated their opposition to the motion and the intention of taking the case to jury trial.

While preparing for the 115-10 Motion Hearing and trial, Wigell Criminal Defense continued to negotiate. After significant negotiations, the assistant state’s attorney agreed to reduce the felony charge of Aggravated Criminal Sexual Abuse to a misdemeanor charge of battery.  Thus, all sex charges were eliminated. THIS RESULT ELIMINATED A FELONY CONVICTION AND LIFETIME SEX OFFENDER REGISTRATION.

The client accepted the offer without hesitation. The client was grateful for the all the hard work and dedication the attorneys and staff of Wigell Criminal Defense put into his case.  This result protected his career and ultimately saved his future.  Additionally, the client will be eligible to have the misdemeanor battery conviction sealed after the requisite waiting period has passed.

Charges: Aggravated Kidnapping-(Class X-6-30 Years in prison (Illinois Department of Corrections)); Aggravated Criminal Sexual Assault (Class X-6-30 Years in prison (Illinois Department of Corrections)); Aggravated Criminal Abuse (Class 2-3-7 Years in prison (Illinois Department of Corrections)) Potential Result: 12-60 Years IDOC, Lifetime Sex Offender Registration Requirement; Wigell Criminal Defense Result: 30 Days Cook County Jail; 30 Days Swap; 24 Months Probation; NO SEX OFFENSE CONVICTION; NO SEX OFFENDER REGISTRATION REQUIREMENT

Our client was accused of sexually assaulting a woman he went on a date with after meeting her on the Internet website, Backpage.com. Specifically, our client was charged with four (4) counts of Aggravated Kidnapping, two (2) counts of aggravated criminal sexual assault and two (2) counts of aggravated criminal sexual abuse.

The breakdown of his charges is as follows:

  • Aggravated Kidnapping: This charge is NON-PROBATIONABLE.
    • Aggravated Kidnapping is a Class X Felony punishable from 6-30 Years in the penitentiary
    • If convicted of aggravated kidnapping, Defendant must serve a mandatory minimum sentence of 6 years and must serve a minimum 85% of his sentence before being eligible for Mandatory Supervised Release (Formerly Known as Parole).
  • Aggravated Criminal Sexual Assault: This charge is NON-PROBATIONABLE
    • Aggravated Criminal Sexual Assault is a Class X Felony punishable from 6-30 Years in the penitentiary.
    • These charges require mandatory consecutive sentencing meaning that if the individual is convicted of more than one count, that the sentences imposed on each count would run one after another
    • If convicted of aggravated criminal sexual assault, Defendant must serve a mandatory minimum sentence of 6 years and must serve a minimum 85% of his sentence before being eligible for Mandatory Supervised Release (Formerly Known as Parole).
    • A conviction on this charge also requires a MANDATORY LIFETIME sex offender registration requirement.
  • Aggravated Criminal Sexual Abuse
    • Aggravated Criminal Sexual Abuse is a class 2 felony punishable from 3-7 Years in the penitentiary
    • An individual convicted of Aggravated Criminal Sexual Abuse must serve at least 50% of their sentence before being eligible for Mandatory Supervised Release (Formerly Known as Parole).
    • This charge is probationable. However, a conviction of this charge requires MANDATORY LIFETIME sex offender registration.

After interviewing multiple attorneys and doing his research, the client retained Wigell Criminal Defense to represent him in his serious and complex matter. The Wigell Criminal Defense team immediately began preparing the case.

After analyzing the discovery and conducting a diligent defense investigation, the attorneys at Wigell Criminal Defense were able to develop a theory of defense for trial. The attorneys at Wigell Criminal Defense determined that the incident was a consensual sexual encounter between their client and the complaining witness.  She had posted an ad on Backpage.com for a “Sugar Daddy” in exchange for “Time and Companionship.”  Time and Companionship was innuendo for money in exchange for sexual favors.  The complaining witness was scorned towards the client for “shorting her” on payment for “time and companionship.”  She went to the police and fabricated sexual assault allegations.

The Wigell Criminal Defense team of Attorneys and Paralegals determined that this was a case that had to be set for trial. After filing and arguing a series of pretrial motions which resulted in many favorable rulings for our client, the prosecutor made an offer.  The prosecutor offered the client sex offender probation.  This would require LIFETIME sex offender registration.

This offer was rejected. Raymond Wigell, Senior Trial Attorney of Wigell Criminal Defense continued to negotiate. Further negotiations resulted in the prosecutor reducing her initial offer to a charge with a 10-year requirement of sex offender registration.  Reluctant to accept this offer due to the sex offender registration requirement having the potential to ruin his career, Attorney Raymond Wigell continued aggressive negotiations while simultaneously preparing for trial.

After making the prosecutor aware of the multiple weaknesses in the case including credibility issues, the State made an offer which was extraordinary under the circumstances.

In exchange for a plea of guilty on amended felony charges of kidnapping and aggravated battery, the client would be placed on 2 years of probation with a requirement to serve 30 days in Cook County Jail and perform 30 days of SWAP. THIS DISPOSITION AVOIDED PRISON AND AVOIDED REGISTERING AS A SEX OFFENDER.

After discussing the matter in detail with the attorneys of Wigell Criminal Defense and considering all options, the client accepted the offer. The client did not want to risk being found guilty at trial and sentenced to a mandatory minimum of 12 years in prison or more and registration as a sex offender.

This result was best for the client to protect his professional career, avoid a lengthy prison sentence and avoid any registration as a sex offender. We never, never give up.

Truth in Sentencing: Receiving Credit for Time Served Outside of Jail-EHM v. Pretrial Services

When an individual is charged with a crime and awaiting trial, they are subject to pretrial detention. While most people perceive the notion of pretrial detention as being in custody at the county jail, there are other forms of pretrial detention that don’t require an individual to necessarily be incarcerated.

While someone is in custody in jail awaiting disposition of their case, they receive credit for time served in jail for any sentence of prison time imposed by a plea of guilty or finding of guilty. (Ex. A person who serves one year in jail would have that time subtracted from a prison sentence of 2 years thus leaving 1 year).  The calculation should be made from the day of the individual’s arrest to the day of the disposition of their case.  All individuals in custody of Cook County Jail are eligible for time served credit with a few exceptions ranging from committing a crime while in custody to receiving a natural life sentence.

However, time served can be extended to another form of pretrial detention outside of Cook County Jail. Another form of pretrial detention where an individual could receive credit for time served is known as EHM (Electronic Home Monitoring).  EHM is sometimes known to the general public as “House Arrest” or “Home Confinement.” This form of pretrial detention requires an individual to wear an ankle bracelet that monitors their movements.  Typically, the individual is confined to their home for the duration of their case. In some instances, the individual is allowed movement outside of the home for limited purposes including going to work, church, doctor’s appointments, ect. This form of pretrial detention is typically governed under the control of the Sheriff’s Department.  Being under the supervision of the Sheriff’s Department considers the individual to be “in custody” for the purposes of time served.

This form for pretrial detention should not be confused with GPS monitoring through pretrial services. GPS monitoring requires an individual to wear a GPS monitor on their ankle.  The purpose of the GPS monitor allows pretrial to monitor the individual’s movements.  A GPS is typically fitted to keep an individual away from a specific person or place that is the subject of the charged offense.  The individual however would not be eligible for time served in this situation.  Since the GPS monitor is governed by pretrial services, a person is not considered to be “in custody” for these purposes.  Since an individual on a GPS is free from any actual detention and their freedom is not “restricted” under the supervision of pretrial services, they are not considered in custody for the purposes of time served.

However, it should be noted that being on EHM does not necessarily guarantee an individual will receive credit for time served. There are exceptions that disqualify an individual from receiving credit for time served on EHM.  The main exception to the specific offense the individual is on EHM for.  If an offense falls under 730 ILCS 5/5-5-3, then the offense would not qualify for time served credit under EHM.  For example, a person on EHM for a pending charge of Criminal Sexual Assault would NOT be eligible for sentencing credit due to the nature of the offense enumerated under 730 ILCS 5/5-5-3.

When someone is on EHM while awaiting trial, they should consult with their experienced criminal defense attorney regarding the issue of time served. This is an important aspect that should be analyzed when evaluating the issue of time served when an individual is considering entering a plea of guilty or evaluating the amount of time a person is facing if they lose at trial.  This analysis is critical when determining the course of action to take in that individual’s case and should be conducted in a meticulous and detailed manner.

Truth in Sentencing: Ways to Reduce Prison Sentences

When an individual has been either convicted of a crime or pleads guilty to a crime and receives a sentence of prison time, the sentence imposed does not necessarily mean that the individual will do the entirety of the imposed sentence. When someone is sentenced to a term of imprisonment, that individual may have options and opportunities to have their sentence reduced while in IDOC (Illinois Department of Corrections).

There are three typical methods than an individual can receive sentencing credit to ultimately have their sentences reduced while serving time in IDOC. The three ways inmates can receive additional sentencing credit at IDOC is through statutory sentencing credit, program sentence credit and supplemental sentence credit.  The opportunities for credit are as follows:

Statutory Sentencing Credit: Statutory sentencing credit is credit that is awarded for most types of offenses pursuant to Illinois sentencing Statute.  For example, some felony offenses offer day for day credit which basically means a person will serve only 50% of their sentence if they do not have any behavioral or disciplinary issues while incarcerated in IDOC.  Other sentences require an individual to serve 75%, 85% or even 100% of their sentence based on good behavior.

Program Sentencing Credit: Program sentencing credit is credit an individual can accrue while serving time in IDOC.  Specifically, an individual can obtain additional credit towards their sentence by participating in classes and programs offered by IDOC.  These classes can range from cooking classes, GED classes to trade classes.  There are also eligibility requirements to qualify for receiving additional sentencing credit from these classes which are classified into three levels:

  • Certain offenders are eligible to have 0.5 days of credit per day of classes taken (Ex. 30 days of class =15 days of sentencing credit).
  • Other offenders can be eligible for 0.25 days of credit if they don’t meet the requirements of the 0.5 days of credit (Ex. 28 days of class = 7 days of sentencing credit).
  • Then certain offenders are ineligible to receive credit for participating in classes but are usually not prohibited from taking the classes.

Eligibility criteria is usually based upon the individual’s disciplinary history and the nature of the offense for which they were either convicted of or plead guilty to. If the individual has a history of disciplinary issues, then they may be disqualified from receiving sentencing credit.  If an individual has been convicted of a specific offense, for example first degree murder, then they would not be eligible for any program credit.

Supplemental Sentence Credit: Supplemental Sentence Credit is sentencing credit that an individual could receive at the end of their sentence.  This credit is not mandatory and it is at the discretion of IDOC to award this credit to an offender.  An individual could be eligible for either 90 days or 180 days off their sentence.  The amount of days awarded are based upon the nature of the offense the individual is serving time for.  For example, a sentence for Aggravated Criminal Sexual Assault only allows an individual a possible 90 days credit at the end of their sentence due to the nature of the offense.  While most offenses are eligible for the supplemental sentence credit, certain offenses may not be eligible such as convictions for first degree murder and domestic terrorism.  An offender must have at least served a minimum time of 60 days or as close to 60 days the sentence would allow to be eligible for the credit.

When an individual is imprisoned in IDOC, they should make every attempt to utilize all the opportunities available to reduce their prison sentence. This also gives the individual not only the opportunity for an early release to get back to their loved ones sooner, but it also allows the opportunity for an individual to better themselves in prison.  It gives them the opportunity to learn new skills and trades that could be beneficial when re-entering society after release.  After the individual is assigned to a prison in IDOC, they should immediately consult with their assigned counselor to determine their eligibility and opportunities for additional sentencing credit.

Truth in Sentencing: Consecutive vs. Concurrent Sentencing

In Illinois, when someone is either convicted or pleads guilty to a crime, they are subject to the sentencing parameters of that specific crime. When someone is either convicted or pleads guilty, their attorney should make them the aware of the possible sentences and penalties of their specific charge.  One concept an individual should be made aware of in regards to sentencing is the concept of consecutive versus concurrent sentencing.  When someone is charged with more than one offense or has multiple counts of the same offense, an analysis must be made whether those sentences would run consecutively or concurrently.

Section 730 ILCS 5/5-8-4 in the Illinois Unified Code of Corrections outline all of the offenses in Illinois as to what sentences run consecutive and concurrent. Consecutive and Concurrent are defined as follows:

CONCURRENT sentencing is when someone is convicted of either multiple offenses or counts, that the sentences imposed on each separate charge or count would run AT THE SAME TIME. For example, if someone is convicted of Armed Robbery and Aggravated Kidnapping and receives a sentence for six years on each offense, those sentences would run AT THE SAME TIME.  This concept also applies to a person serving a term for a felony and misdemeanor offense at the same time, as well as if the individual is already imprisoned in Illinois or another jurisdiction for another offense unless the offense is consecutive under Illinois law.

CONSECUTIVE sentencing is when someone is convicted of either multiple offenses or counts, that the sentences imposed on each separate charge or count would run one after another. For Example, if an individual is convicted on five counts of Predatory Criminal Sexual Assault and received a sentence for 6 years on each count, those sentences would run one after another thus resulting in the individual serving 30 years in The Illinois Department of Corrections.

Most of the time, consecutive sentencing is mandated by statute and the Judge cannot deviate from mandatory consecutive sentencing. There is also a concept known as permissive consecutive sentencing.  The court has discretion impose permissive consecutive sentencing under limited circumstances.  Those limited circumstances are as follows:

(c) Consecutive terms; permissive. The court may impose consecutive sentences in any of the   following circumstances:

(1) If, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is the opinion of the court that consecutive sentences are required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.

(2) If one of the offenses for which a defendant was convicted was a violation of Section 32-5.2 (aggravated false personation of a peace officer) of the Criminal Code of 1961 (720 ILCS 5/32-5.2) or a violation of subdivision (b)(5) or (b)(6) of Section 17-2 of the Criminal Code of 1961 or the Criminal Code of 2012 (720 ILCS 5/17-2) and the offense was committed in attempting or committing a forcible felony.

Sentencing is a very complex legal concept. An individual and their attorney must be aware of all sentencing concepts and parameters in their case.  Because the knowledge of consecutive and concurrent sentencing is imperative to how to approach a criminal case.  Not having the knowledge of consecutive and concurrent sentencing concepts can have devastating results upon a client’s case.  Wigell Criminal Defense has handled many cases involving consecutive and concurrent sentencing for over 40 years.  Please don’t hesitate to contact us regarding your case.  We are here to help.

 

Aggravated Possession of Child Pornography & Possession of Child Pornography-34 Counts; Mandatory Minimum Sentence: 139 Years in IDOC; Result: Less than 6 months IDOC

Our client was charged with the offenses of Possession of Child Pornography and Aggravated Possession of Child Pornography. Our client was charged with a total of 34 counts between the two offenses.  Specifically, he was accused of downloading multiple images and videos depicting pornographic images of children under the age of 18 years old and under the age of 13 years old.  To also make the accusations more serious in nature, our client who was a First responder was accused of downloading the images and videos while on duty.

Aggravated Possession of Child Pornography is a Class X Felony. Possession of Child Pornography can either be a Class 1, Class 2 or Class 3 Felony depending on the nature of the alleged image and whether the image is a video or a picture.  Both types of possession charges are also subject to mandatory consecutive sentencing.  Mandatory consecutive sentencing is a form of sentencing that requires an individual who either pleads guilty or is found guilty on two or more counts of this type of charge to serve a sentence on each count consecutive to each other.  This basically means the sentences on each count follow one another.  The client must serve 50% of his sentence before being placed on MSR (Mandatory Supervised Release) formerly known as parole.

The counts are broken down as follows:

14 Counts of Aggravated Child Pornography-Class X: 6-30 Years

1 Count of Possession of Child Pornography-Class 1: 4-15 Years

16 Counts of Possession of Child Pornography-Class 2: 3-7 Years

3 Counts of Possession of Child Pornography-Class 3: 2-5 Years

Our client, fearful of the potential life sentence these charges carried, hired Wigell Criminal Defense to represent him in his case. The prosecutor in this matter came to the attorneys of Wigell Criminal Defense and made an offer which would require the client to spend a significant amount of time in prison.  The prosecutor also wanted the client to plead guilty to a charge that would not allow the client to received credit for time served on EHM (Electronic Home Monitoring).

When an individual is placed on EHM, also known as house arrest, there are some instances where an individual can receive credit for time served as they would be considered “in custody” for those purposes. However, there are instances where an individual would not receive credit for time served on house arrest.  In this instance, the client was not eligible for credit for time served under the State’s current offer due to the State seeking the client to plead guilty to one of the Class X counts.

The prosecutor was maintaining the position that the client needed to do significant time in IDOC due to the nature of the offenses and that they were committed while client was working as a First responder.

The attorneys at Wigell Criminal Defense then engaged in aggressive negotiations of the State. The aggressive negotiations included pointing out the weaknesses of the State’s case and potential ramifications of proceeding to trial.

After taking into consideration the position of the attorneys of Wigell Criminal Defense, the State acquiesced and agreed to an offer that allowed the client to receive time served on a class 2 charge of possession of child pornography which resulted in the client having to spend less than 6 months in prison.

The client was happy that an excellent result was achieved under the circumstances. The client was relieved that he would finally be able to leave house arrest and serve a short prison sentence.  He was relieved that he could finally put this situation behind him and move on with his life.

Ratings and Reviews

The National Trial Lawyers
10.0Raymond George Wigell
Raymond George WigellReviewsout of 38 reviews