J.M. v. Briseno, No. 08 OP 1642 (Ill. App. Ct. June 3, 2011).

Victim-petitioner filed for and was granted an emergency petition for a civil order of protection under the state’s Civil No Contact Order Act (“Act”), after she was raped by respondent following a night of heavy drinking.  The victim then sought a plenary no-contact order against respondent.  Under the Act, if a 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.”  Following an evidentiary hearing, the trial court denied the victim’s petition based on its finding that it was more likely than not that she consented.  The victim appealed, arguing that the court’s interpretation of the Act was erroneous because, inter alia, the Act does not require the victim to testify that she was too drunk to consent to establish legal incapacity, and the Act does not allow the court to presume consent.  The appellate court reversed the decision of the trial court, holding that because there was sufficient evidence in the record to prove that the petitioner was a victim of nonconsensual sexual penetration under the Act, she was entitled to an order of protection, “and the trial court’s findings to the contrary were against the manifest weight of the evidence.”  In support of its holding, the court described the “unimpeached and unrebutted” testimony of the victim that: (1) she was very intoxicated the night of the rape; (2) she remembered respondent—a fellow law school student—giving her beers and then vaginally penetrating her; (3) she tried to push respondent off of her but was so intoxicated she could not really move much; and (4) when she awoke the next morning she immediately told respondent he shouldn’t be there.  The court also found it probative on the issue of consent that respondent had left a note and sent text messages to the victim the next day, including that he was “sorry about last night” and that he “felt terrible about what happened the other night.”  The court further referenced the fact that the victim soon after called a friend to tell him she had been raped, underwent an extensive and invasive medical examination at the hospital, took medication to prevent pregnancy, sexually transmitted diseases, and HIV that made her very sick, and that the police detective investigating the rape testified that he found the victim to be “credible.”  In the face of the weight of this evidence, the court found respondent’s reliance on “relatively minor contradictions in petitioner’s testimony to justify the trial court’s ruling that petitioner was not credible” to be unpersuasive, as the contradictions were “inconsequential as to the central issue of whether nonconsensual sexual penetration occurred.”  The court then concluded that because the victim met her burden to show by a preponderance of the evidence that she was a victim of nonconsensual sexual penetration under the Act, she was entitled to an order of protection, and the court need not reach the victim’s argument that she was legally unable to consent due to intoxication.  The court then reversed and remanded to the trial court for the issuance of a plenary civil no-contact order against respondent.

NCVLI participated in this proceeding as amicus curiae, along with co-amici, the Illinois Coalition Against Sexual Assault, the Victim Rights Law Center, the National Sexual Violence Resource Center, the National Center for Victims of Crime, and the Chicago Alliance Against Sexual Exploitation.  In their brief, amici emphasized the critical importance of protecting victims of sexual assault and argued, inter alia, that the trial court’s order directly contravened the intent of the Civil No Contact Order Act and the public policy that led to its enactment.