Consent Laws
Illinois

“Consent” means a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent. 720 ILCS 5/11-0.1.

A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct. 720 ILCS 5/11-1.70.

“The focus is on what the defendant knew or reasonably should have known regarding the victim’s willingness or ability to give knowing consent.” People v. Roldan, 2015 IL App (1st) 131962, ¶ 19.

“Unable to give knowing consent” includes when the accused administers any intoxicating or anesthetic substance, or any controlled substance causing the victim to become unconscious of the nature of the act and this condition was known, or reasonably should have been known by the accused. “Unable to give knowing consent” also includes when the victim has taken an intoxicating substance or any controlled substance causing the victim to become unconscious of the nature of the act, and this condition was known or reasonably should have been known by the accused, but the accused did not provide or administer the intoxicating substance. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:

1. was unconscious or asleep;
2. was not aware, knowing, perceiving, or cognizant that the act occurred;
3. was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact; or
4. was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. 720 ILCS 5/11-0.1.

A victim is presumed “unable to give knowing consent” when the victim:

1. is committed to the care and custody or supervision of the Illinois Department of Corrections (IDOC) and the accused is an employee or volunteer who is not married to the victim who knows or reasonably should know that the victim is committed to the care and custody or supervision of such department;
2. is committed to or placed with the Department of Children and Family Services (DCFS) and in residential care, and the accused employee is not married to the victim, and knows or reasonably should know that the victim is committed to or placed with DCFS and in residential care;
3. is a client or patient and the accused is a health care provider or mental health care provider and the sexual conduct or sexual penetration occurs during a treatment session, consultation, interview, or examination;
4. is a resident or inpatient of a residential facility and the accused is an employee of the facility who is not married to such resident or inpatient who provides direct care services, case management services, medical or other clinical services, habilitative services or direct supervision of the residents in the facility in which the resident resides; or an officer or other employee, consultant, contractor or volunteer of the residential facility, who knows or reasonably should know that the person is a resident of such facility; or
5. is detained or otherwise in the custody of a police officer, peace officer, or other law enforcement official who: (i) is detaining or maintaining custody of such person; or (ii) knows, or reasonably should know, that at the time of the offense, such person was detained or in custody and the police officer, peace officer, or other law enforcement official is not married to such detainee. 720 ILCS 5/11-0.1.

Yes, it requires “freely given agreement” to the act of sexual penetration or sexual conduct in question. 720 ILCS 5/11-0.1.

17 years old. 720 ILCS 5/11-1.60.  However, if the actor is 17 years of age or older and holds a position of trust, authority, or supervision in relation to the victim, then the age of consent is 18 years old.

No.

No. However, the crime and punishment is more severe if the victim is 60 years of age or older. 720 ILCS 5/11-1.30; 720 ILCS 5/11-1.60.

Yes. See definitions above of “unable to give knowing consent” and “unconscious of the nature of the act.”   

A person commits a sex crime if that person knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. 720 ILCS 5/11-1.20; 720 ILCS 5/11-1.50.

A person commits aggravated criminal sexual abuse if a person commits an act of sexual conduct with a victim who is a person with a severe or profound intellectual disability. 720 ILCS 5/11-1.30, 1.60.

Illinois courts apply a totality of the circumstances test when determining whether a victim had the requisite mental capacity to consent. See People v. Whitten, 647 N.E.2d 1062 (Ill. App.1995) (“to support a guilty verdict based upon the victim’s inability to understand the nature of the act and to give knowing consent, the State must show that the victim had insufficient intelligence to understand the act, its nature, and possible consequences.”)

Yes. Physical incapacity can impact the victim’s ability to consent.  See definitions above of “unable to give knowing consent” and “unconscious of the nature of the act.”   720 ILCS 5/11-0.1. 

Additionally, the crime and punishment is more severe if the victim is a person with a physical disability. 720 ILCS 5/11-1.30; 720 ILCS 5/11-1.60.

Yes.  See definitions above of “unable to give knowing consent” and “unconscious of the nature of the act.”   720 ILCS 5/11-0.1.  A person commits a sex crime if that person knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. 720 ILCS 5/11-1.20; 720 ILCS 5/11-1.50.

Yes.  See definitions above of “unable to give knowing consent” and “unconscious of the nature of the act.”   720 ILCS 5/11-0.1. 

A person commits a sex crime if that person knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. 720 ILCS 5/11-1.20; 720 ILCS 5/11-1.50.

In addition, the crime and punishment is more severe if the accused 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. 720 ILCS 5/11-1.30; 720 ILCS 5/11-1.60.

Yes. A victim is presumed “unable to give knowing consent” when the victim:

1. is committed to the care and custody or supervision of the Illinois Department of Corrections (IDOC) and the accused is an employee or volunteer who is not married to the victim who knows or reasonably should know that the victim is committed to the care and custody or supervision of such department;
2. is committed to or placed with the Department of Children and Family Services (DCFS) and in residential care, and the accused employee is not married to the victim, and knows or reasonably should know that the victim is committed to or placed with DCFS and in residential care;
3. is a client or patient and the accused is a health care provider or mental health care provider and the sexual conduct or sexual penetration occurs during a treatment session, consultation, interview, or examination;
4. is a resident or inpatient of a residential facility and the accused is an employee of the facility who is not married to such resident or inpatient who provides direct care services, case management services, medical or other clinical services, habilitative services or direct supervision of the residents in the facility in which the resident resides; or an officer or other employee, consultant, contractor or volunteer of the residential facility, who knows or reasonably should know that the person is a resident of such facility; or
5. is detained or otherwise in the custody of a police officer, peace officer, or other law enforcement official who: (i) is detaining or maintaining custody of such person; or (ii) knows, or reasonably should know, that at the time of the offense, such person was detained or in custody and the police officer, peace officer, or other law enforcement official is not married to such detainee. 720 ILCS 5/11-0.1.

A person commits custodial sexual misconduct when:

• he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of that penal system;
• he or she is an employee of a treatment and detention facility and engages in sexual conduct or sexual penetration with a person who is in the custody of that treatment and detention facility; or
• he or she is an employee of a law enforcement agency and engages in sexual conduct or sexual penetration with a person who is in the custody of a law enforcement agency or employee. 720 ILCS 5/11-9.2.

Also, a probation or supervising officer, surveillance agent, or aftercare specialist commits custodial sexual misconduct when the probation or supervising officer, surveillance agent, or aftercare specialist engages in sexual conduct or sexual penetration with a probationer, parolee, or releasee, or person serving a term of conditional release who is under the supervisory, disciplinary, or custodial authority of the officer or agent or employee so engaging in the sexual conduct or sexual penetration. 720 ILCS 5/11-9.2.

The consent of the probationer, parolee, releasee, inmate in custody of the penal system or person detained or civilly committed under the Sexually Violent Persons Commitment Act, or person in the custody of a law enforcement agency or employee shall not be a defense to a prosecution under section 5/11-9.2. A person is deemed incapable of consent, for purposes of section 5/11-9.2 when he or she is a probationer, parolee, releasee, inmate in custody of a penal system or person detained or civilly committed under the Sexually Violent Persons Commitment Act, or a person in the custody of a law enforcement agency or employee. 720 ILCS 5/11-9.2.

In addition, a person commits sexual misconduct with a person with a disability when:

• he or she is an employee [as defined in the statute] and knowingly engages in sexual conduct or sexual penetration with a person with a disability who is under the care and custody of the Department of Human Services at a State-operated facility; or
• he or she is an employee of a community agency funded by the Department of Human Services and knowingly engages in sexual conduct or sexual penetration with a person with a disability who is in a residential program operated or supervised by a community agency. 720 ILCS 5/11-9.5.
• The consent of a person with a disability in custody of the Department of Human Services residing at a State-operated facility or receiving services from a community agency is not a defense. 720 ILCS 5/11-9.5

A person commits criminal sexual assault or aggravated sexual abuse 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 5/11-1.20, 1.60.

Yes, consent is a defense to criminal sexual assault under section 11-1.20, aggravated criminal sexual assault under section 11-1.30, predatory criminal sexual assault of a child under section 11-1.40, criminal sexual abuse under section 11-1.50, or aggravated criminal sexual abuse under section 11-1.60 of the ILCS where force or threat of force is an element of the offense. 720 ILCS 5/11-1.70.

No.  See People v. Saunders, 122 Ill. App. 3d 922, 935, 461 N.E.2d 1006, 1016 (1984)