Can Deviate Sexual Assault Conviction Be Reversed If There Is No Evidence of Force or Threat of Force Being Used ?
In People v. Mueller, 54 Ill. 2d 189, 295 N.E.2d 705 (1973), the court did not find sufficient evidence to prove the defendant guilty beyond a reasonable doubt.
In Mueller, the defendant was convicted of deviate sexual assault and burglary after entering the seven-year-old victim's family's home during the early morning hours. Mueller, 54 Ill. 2d at 190-91.
The victim was sleeping in the same bed as her six-year-old sister when the defendant entered the victim's bedroom, awakened her, "pulled down her panties, fondled her, and then performed an oral sex act upon her." Mueller, 54 Ill. 2d at 191.
The defendant stayed in the bedroom for about 10 minutes before exiting the home, and, during that time, the victim's six-year-old sister was awake and sitting up in the bed next to the victim. Mueller, 54 Ill. 2d at 193.
The sisters went back to sleep and reported the incident to their parents the next morning. Mueller, 54 Ill. 2d at 192.
On appeal, the defendant argued that his conviction for deviate sexual assault should be reversed because the State had failed to prove that the defendant's act was committed "by force or threat of force," as required by section 11-3 of the criminal Code. Mueller, 54 Ill. 2d at 190.
The State argued that the threat of force was implicit in the defendant's actions because of the great disparity in physical size and age between the defendant and the victim. Mueller, 54 Ill. 2d at 192.
The Mueller court stated:
"The evidence presented in this case supports neither a finding of actual force nor threat of force; nor does testimony of the complaining witness establish the fear or coercion suggested by the State.
In the absence of such proof, a conviction under section 11-3 cannot stand, and we accordingly reverse the conviction for deviate sexual assault." Mueller, 54 Ill. 2d at 193.