Illinois Matrimonial & Family Law

Romeo & Juliet:

Young Lovers and the Law

updated 19 December 2019 

by Wes Cowell; 

 

When underage girls get pregnant, the father may catch a break from "statutory rape" charges depending on the difference in age between the lovers and the nature of their relationship.  Need advice?  Call, leave your info, or schedule a consult.

 

I get one of these questions about once a week:  

Scenario I:  a young woman calls to say she is 15 or 16, has been messing around with a 19 y.o. BF, they're in love and plan to marry and be a family . . . will he go to jail if its found out that he (an adult) was messing around with her (a minor)?

 

Scenario II:  a young man calls in to say he's 19 or 20, his GF is 15 or 16, they've been having sex and her parents found out and now they're threatening him with prosecution for "statutory rape" . . . am I going to go to jail?

 

The answer is "it depends on the difference between "sexual conduct" and "sexual penetration," and it depends a LOT on the success of the relationship."

 

There is so much puritanical, judgmental, obsolete information about this topic online, however, that these young folks are terribly misled and that makes a difficult situation much, much worse.  So, here's what you need to know:   

 

Age of Consent:  In Illinois, the age of consent is 17.  Our law says that it's impossible for a child under the age of 17 to knowingly consent to sex.  Even if he or she voluntarily engages in sex, even if he or she brings up the subject and suggests sex, even if he or she initiates sex . . . the sex act constitutes a "sex crime" on the part of the partner, regardless of age.  If a 16-year-old has sex with a 17-year-old, the 17-year-old may be charged with criminal sexual abuse.  If two 15 or 16-year-olds have sex they each may be charged with criminal sexual abuse of the other.

 

Once a child turns 17 he or she may have consensual sex with anyone and the partner need not fear criminal prosecution.  There is one exception, however:  if the adult partner is a person with authority over the 17-year-old, then the age of consent is boosted to 18.  These cases crop up where the adult is a step-parent, a teacher, a coach, a leader of a church youth group, etc.

 

The Crimes:  Illinois doesn't have a law called "statutory rape."  Illinois law breaks things down into four categories:

1. Criminal Sexual Abuse (720 ILCS 5/11-1.50).

2. Criminal Sexual Assault (720 ILCS 5/11-1.20),

3. Aggravated Criminal Sexual Assault (720 ILCS 5/11-1.30), and

4. Predatory Criminal Sexual Assault (720 ILCS 5/11-1/40),

 

What you need to focus on is no.s 1 and 2, above.  The difference between Criminal Sexual Abuse and Criminal Sexual Assault is the difference between "sexual conduct" and "sexual penetration."

 

Criminal Sexual Abuse means "sexual conduct," which means "touching or fondling . . . for sexual gratification."

 

Criminal Sexual Assault means "sexual penetration" which means "any contact, however slight, between the sex organ or anus of one person and an object or the sex organ, mouth, or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including, but not limited to, cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration."

 

The law defines Criminal Sexual Abuse as:

 

Sec. 11-1.50. Criminal sexual abuse.

(a) A person commits criminal sexual abuse if that person: 

(1) commits an act of sexual conduct by the use of force or threat of force; or

(2) commits an act of sexual conduct and knows that the victim is unable to understand the nature of the act or is unable to give knowing consent.

(b) A person commits criminal sexual abuse if that person is under 17 years of age and commits an act of sexual penetration or sexual conduct with a victim who is at least 9 years of age but under 17 years of age.

(c) A person commits criminal sexual abuse if that person commits an act of sexual penetration or sexual conduct with a victim who is at least 13 years of age but under 17 years of age and the person is less than 5 years older than the victim.

(d) Sentence. Criminal sexual abuse for a violation of subsection (b) or (c) of this Section is a Class A misdemeanor.

 

Romeo & Juliet:  Illinois adopted its "Romeo and Juliet" law (paragraph (c), above) in 2011.  The law says that if one of the partners is under 17 but both partners are within 5 years of age of each other, then it doesn't matter is if it was just "touching or fondling" or if it went all the way to sexual penetration, "cunnilingus, fellatio, or anal penetration" -- the crime drops from a felony to a misdemeanor.  That's like "disorderly conduct" or "public intoxication." 

 

Romeos need to focus on paragraph (c).  Even if Romeo KNOWS the victim is under age 17, as long as the age difference is less than 5 years, a first-time offense is only a misdemeanor.  He's probably looking at probation and maybe some community service.

 

The OLDER Romeo & Juliet:  The Romeo & Juliet law applies to guys who are between the ages of 17 and 22 AND within 5 years of age of their girlfriend.  I sometimes get the call "I was 21 but she was only 15 -- that's SIX years -- what happens NOW?"  The charge you're looking at is "Criminal Sexual Assault."  (720 ILCS 5/11-1.20):

 

Sec. 11-1.20. Criminal sexual assault.

 (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and

1. uses force or threat of force

2. knows that the victim is unable to understand the nature of the act or is unable to give knowing consent

3. is a family member of the victim, and the victim is under 18 years of age; or

4. is 17 years of age or over and holds a position of trust, authority, or supervision in relation to the victim, and the victim is at least 13 years of age but under 18 years of age

720 ILCS 5/11-1.20

 

Older Romeos run into trouble with paragraph (a)(2) -- they know, or should know, that a victim under the age of 17 is unable to give knowing consent . . . remember, the "age of consent" in Illinois is 17.  Criminal Sexual Assault is a Class 1 felony (4 - 15 years imprisonment).  Usually, there is no statute of limitations -- a prosecution may be brought at any time -- but there is one, BIG, exception.

 

3-Year-Reporting Rule Limits Prosecutions:  When a woman is raped, in Illinois, if she knows her attacker, she has three years to report the rape to law enforcement.  If she blows that deadline, the State may not prosecute.  The law says:

 

Sec. 3-5. General Limitations.
    (a) A prosecution for: . . . (2) any offense involving sexual conduct or sexual penetration, as defined by Section 11-0.1 of this Code in which the DNA profile of the offender is obtained and entered into a DNA database within 10 years after the commission of the offense, may be commenced at any time. Clause (2) of this subsection (a) applies if either:

(i) the victim reported the offense to law enforcement authorities within 3 years after the commission of the offense unless a longer period for reporting the offense to law enforcement authorities is provided in Section 3-6 . . . .

  (b) Unless the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3-6, a prosecution for any offense not designated in Subsection (a) must be commenced within 3 years after the commission of the offense if it is a felony, or within one year and 6 months after its commission if it is a misdemeanor.

 

Sec. 3-6. Extended limitations. . . . 

. . .

    (d) A prosecution for . . .  criminal sexual abuse [touching or fondling] may be commenced within one year of the victim attaining the age of 18 years. However, in no such case shall the time period for prosecution expire sooner than 3 years after the commission of the offense.

. . .
  (i) Except as otherwise provided in subdivision (j), a prosecution for criminal sexual assault [sexual penetration, cunnilingus, fellatio, anal sex], . . . may be commenced within 10 years of the commission of the offense if the victim reported the offense to law enforcement authorities within 3 years after the commission of the offense. 

. . . 
    (j) (1) When the victim is under 18 years of age at the time of the offense, a prosecution for criminal sexual assault [sexual penetration, cunnilingus, fellatio, anal sex] . . . may be commenced at any time when corroborating physical evidence is available . . . .
    (2) In circumstances other than as described in paragraph (1) of this subsection (j), when the victim is under 18 years of age at the time of the offense, a prosecution for criminal sexual assault [sexual penetration, cunnilingus, fellatio, anal sex]. . . may be commenced within 20 years after the child victim attains 18 years of age.
    (3) When the victim is under 18 years of age at the time of the offense, a prosecution for misdemeanor criminal sexual abuse [Romeos within 5 years of age of the victim] may be commenced within 10 years after the child victim attains 18 years of age.

 

Illinois Sex Offender Registration Requirement:  Illinois' Sex Offender Registration Act (730 ILCS 150/1 et seq.) requires those convicted of Criminal Sexual Abuse to register as "Sex Offenders" in the Illinois Sex Offender Registry.  Those registration requirements are very burdensome, very damaging, inescapable, and typically last for 10 years.  

 

This is a real problem.  If criminal charges are filed against the father, he probably won't go to jail and even if he does the most he'd be looking at is 364 days -- tops.  If he is charged and pleads guilty or is convicted or does anything other than obtain a dismissal or win an acquittal, however, he MUST register as a sex offender in the Illinois Sex Offender Registry.  That will almost certainly kill any hopes of a decent job, military service, and even college acceptance.  The Registry is poison.

 

The Law Should Be Changed:  This part of Illinois' Romeo & Juliet law should be changed because it doesn't make sense.  It doesn't make sense for the father; it doesn't make sense for the mother; it doesn't make sense for the baby, and it doesn't make sense for the State.  (The law seems to be wrong on many levels, but those gripes are beyond the scope of this site -- you can read more, here.)  Just when the mother and baby need the father to be employed, to serve as a breadwinner and support them, his financial life will be demolished.  That will likely make the mother and child (and possibly the father, too) dependent on the State.  A better policy would be to not require registration for Criminal Sexual Abuse at all, or at least allow the court discretion to waive sex offender registration in Romeo & Juliet cases where the couple is supportive of each other and intend to raise the child together to allow a young couple to build a family.  The existing law destroys potential families -- my suggested change would give them a chance.

 

Will My Doctor or Teacher Report My Underage Pregnancy to DCFS?:  No.  Teen pregnancy, in and of itself, does not rise to the level to trigger reporting by medical staff.  If medical personnel have a reasonable belief that the minor was sexually assaulted by a family or household member, under the Illinois Abused and Neglected Child Reporting Act the abuse must be reported to DCFS.  Such reporting requirements arise where medical staff reasonably suspect that a family or household member or an adult with authority over the minor (a teacher, youth group leader, etc.) commits a criminal sexual offense or allow one to be committed against the child.

 

Illinois’ law requires reporting of child "abuse and neglect" by mandated reporters to the Department of Children and Family Services (DCFS).  DCFS investigates cases of child sexual abuse when the perpetrator is a family member, a person living in the home of the child, or a person in a position of trust or authority (e.g., teacher, babysitter, volunteer in a youth program). DCFS will investigate parents and guardians for permitting the sexual abuse of a child if the parent or guardian takes an active step to encourage abuse.  DCFS will not investigate most teen pregnancies.

 

What to Do:  First, talk with a lawyer -- you've got a lot on your plate and a lot of legal issues.  You'll need a lawyer's help.

 

Second, get the help you need to keep the mother in school.  Don't avoid school because you're afraid of "mandatory reporting." Teen pregnancy, alone, does not trigger mandatory reporting.  Get to the doctor / midwife to ensure a safe and healthy pregnancy -- they're not required to report you either, unless there is a reasonable belief that sexual abuse has been committed by a household member or a person with authority over the pregnant minor.  If you need to go to the hospital do so.  Hospitals don't have to report routine teen pregnancies as "abuse and neglect."  Teen pregnancy, in and of itself, does not automatically trigger a mandated report.  Only cases involving a father who is a family member, a person living in the home of the child, or a person in a position of trust or authority (e.g., teacher, babysitter, volunteer in a youth program, etc.) triggers the reporting requirements.

 

Be Aware:  Although mandatory reporting is not triggered by teen pregnancy alone, mistakes happen.  If a report is made, DCFS must investigate.  If they investigate and another mistake is made, the father could possibly end up facing a criminal charge.  That criminal charge will only be a misdemeanor charge, but if convicted the requirement to register as a "sex offender" could be financially devastating for the father.

 

Third, consider getting married.  Parents must give consent for 16- and 17-year olds to marry.  A marriage with parental consent should end any criminal sexual abuse charges.

 

Fourth, if you don't marry, talk with your lawyer and consider going to court to resolve issues of child support, parenting responsibilities, and parenting schedules.  You can file papers to start your court procedure before the child's birth . . . and that may be a very good idea.  It might be a bad idea, however, as any findings in that case (i.e., a finding of parentage based on the father's admission or DNA testing) might implicate the father in a pending criminal case.

 

Fifth, talk with your lawyer about whether to have the father sign the V.A.P. when the child is born.  It would be nice to have the father sign the V.A.P., but by doing so he'll be admitting he's the father and that could be used against him in a criminal case.

 

Getting Help:  The Illinois Department of Human Services used to provide a lot of resources for young parents and expecting mothers.  Since the Great Recession, however, a reduction in state revenue has resulted in the termination of a lot of those services.  Below is a list of providers of which I am aware.  If you know of a provider not listed, let me know and I'll post the information for others.

​

• Parents Too Soon (PTS) - PTS is a program that serves new and expectant teen parents in high-risk communities through home visits and parent support groups.

 

• Illinois Subsequent Pregnancy Program:  The ISPP helps first-time mothers 13 through 18 years of age in seven Cook County areas of high teen birth rates. The goals of the program are to: 1) delay a second pregnancy, 2) use a contraceptive method effectively and consistently, 3) remain in and complete high school, and 4) ensure mother and child are healthy and prepared for school.  Services include intensive home visiting in addition to substantive training through membership in a peer support group.

 

ISPP Providers:

 

Cook County

Advocate HealthCare

2025 N Winchester Ave

Oak Brook, IL 60523

Phone: 773/722-1178

 

Children's Home & Aid Society of Illinois

1701 W 63rd St.

Chicago, IL 60636

Phone: 312/808-0160

 

Cook County Department of Public Health

1010 Lake St., Ste 300

Oak Park, IL 60301

Phone: 708/492-2090

 

Evanston Health Department

2100 Ridge Ave.

Evanston, IL 60201

Phone: 847/866-2948

 

Sinai Community Institute

3932 W Madison, 2nd Fl.

Chicago, IL 60624

Phone: 773/722-1178

 

Lake County

Lake County Health Department

3010 Grand Ave.

Waukegan, IL 60085

Phone: 847/377-8060f

 

Winnebago County

Winnebago County Health Department

220 S Madison St.

Rockford, IL 61104

Phone: 815/720-4381

 

 

Call the DHS Helpline at (800) 843-6154