Sex between two consenting persons who are under 17 years of age is very serious criminal offense under Illinois law. It does not matter whether the two persons have engaged in sexual intercourse willingly. It does not matter that the two persons are in a relationship together. Sex between two minors is criminal sexual abuse.
Criminal sexual abuse is a Class A misdemeanor offense for which the sentence can be up to one year in jail and a fine of $2,500. However, the judge can allow order the defendant to serve two years of probation involving counseling, community service, and other conditions, as opposed to jail.
This offense is extremely dangerous for the accused because a finding of guilt will require the defendant to register as a sex offender. The law in Illinois for sex offenders requires them to register for a minimum period of 10 years. During this time, they have to check in with the local police department wherever they reside, and live in a place that is approved by the police (at least 1,000 feet away from any school or daycare, etc.).
Additionally, the charge requires a mandatory conviction, which cannot be expunged or sealed.
There are two primary ways for a person to get charged with criminal sexual abuse:
- Consensual sex between two persons (boy or girl) who are both under 17 years old, but at least 9 years old.
- Consensual sex between two persons (boy or girl) where the victim was at least 13 but less than 17 years old, and the accused was younger than 21 years of age.
If the sex was non-consensual, as in the victim did not voluntarily have sex, the offense is aggravated criminal sexual assault, which is another matter all together. Aggravated criminal sexual assault is a non-probationable Class 1 felony offense. The defendant would be sentenced to 4-15 years in prison if found guilty. The court cannot sentence the defendant to probation.
On the other hand, if the accused was 5 years older than the victim, then the offense is aggravated criminal sexual abuse.
Aggravated criminal sexual abuse is set forth in 720 ILCS 5/12-16, which provides that it is a Class 2 felony offense. The sentence for aggravated criminal sexual abuse is 3-7 years in the Illinois Department of Corrections and a possible $25,000 fine. Probation is a possibility, but it depends on the facts of each case whether the judge would sentence the defendant to probation.
The distinction between the misdemeanor charge and felony is 5 years difference in age. If the victim is 16 and the accused is 20 years old, then it is a misdemeanor, but if the victim is 16 and the accused is 21, then it is aggravated criminal sexual abuse, a Class 2 felony offense.
It is not only sexual intercourse that is illegal with someone under 17 years of age. Both sexual penetration and sexual conduct are against the law.
Sexual conduct is the touching or fondling above or beneath the clothes of sex organs (penis or vagina), anus or breasts. It also includes ejaculating semen (sperm) onto another person’s body.
Sexual penetration is any contact between the sex organs or mouth of one person and the sex organs, mouth, or anus of another, and any penetration with any body part (such as a finger or thumb) or animal. Oral sex that is also known as cunnilingus or fellatio is considered sexual penetration. Anal sex constitutes sexual penetration, as well.
It is not a defense that the two involved are in a relationship or plan to get married. The only defense to criminal sexual abuse, misdemeanor or felony, is that the accused had a reasonable belief that the victim was 17 years old. It is for the jury to decide whether the belief was reasonable.
Generally these cases involve a pregnant teenage girl whose parents have called the police. When the male is questioned by the police, he may make a verbal admission or written statement that the two had sex. This does not always result in finding of guilt, however. There are ways to defend a case such as this.