Is Age Difference Between Minors Enough to Prove the Element of Force Despite the Victim Not Resisting During Attempted Rape ?
Is the Disparity in Size Between a 6-Year-Old Victim and 14-Year-Old Respondent Evidence Enough to Prove the Element of Force Despite the Victim Not Resisting During Attempted Rape ?
In In the Interest of C.K.M., 135 Ill. App. 3d 145, 151, 481 N.E.2d 883, 90 Ill. Dec. 83 (1985) the respondent, a fourteen-year-old juvenile, was adjudicated delinquent based upon his attempted rape of a six-year-old girl. C.K.M., 135 Ill. App. 3d at 146.
At trial, the victim testified that the incident occurred during an afternoon nap period.
The respondent woke the victim and told her to take off her panties. C.K.M., 135 Ill. App. 3d at 146. the victim did as she was told.
The respondent made several attempts to insert his penis into her vagina, including during and after the victim had asked the respondent to stop because he was hurting her. C.K.M., 135 Ill. App. 3d at 146.
On appeal, the respondent contended that the State failed to prove the element of force beyond a reasonable doubt because the victim offered little or no resistance and there was no showing that the situation was life-threatening or that the victim was paralyzed by fear. C.K.M., 135 Ill. App. 3d at 151. the C.K.M. court rejected the respondent's contention, stating:
"When asked why she didn't resist, the victim responded, 'Because he was sitting on my stomach and he was too big.'
The record reveals that respondent was extremely overweight.
A child is not expected nor required to offer as much resistance as might be expected of an adult woman.
Given the disparity in size between the 6-year-old victim and the 14-year-old respondent, we conclude that the evidence was sufficient to support the trial court's finding of force." C.K.M., 135 Ill. App. 3d at 151.