Copyright 2012 Carolina Academic Press, LLC. All rights reserved. ILLINOIS CRIMINAL LAW A Survey of Crimes and Defenses

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1 ILLINOIS CRIMINAL LAW A Survey of Crimes and Defenses

2 LexisNexis Law School Publishing Advisory Board William Araiza Professor of Law Brooklyn Law School Ruth Colker Distinguished University Professor & Heck-Faust Memorial Chair in Constitutional Law Ohio State University, Moritz College of Law Olympia Duhart Associate Professor of Law Nova Southeastern University Shepard Broad Law School Samuel Estreicher Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law NYU School of Law David Gamage Assistant Professor of Law UC Berkeley School of Law Joan Heminway College of Law Distinguished Professor of Law University of Tennessee College of Law Edward Imwinkelried Edward L. Barrett, Jr. Professor of Law UC Davis School of Law Paul Marcus Haynes Professor of Law William and Mary Law School Melissa Weresh Director of Legal Writing and Professor of Law Drake University Law School

3 ILLINOIS CRIMINAL LAW A Survey of Crimes and Defenses Fifth Edition John F. Decker Christopher Kopacz 2012

4 ISBN: This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 121 Chanlon Rd., New Providence, NJ (908) Mission St., San Francisco, CA (415) Pub3110

5 A COMPLETE SYNOPSIS FOR EACH CHAPTER APPEARS AT THE BEGINNING OF THE CHAPTER PART 1 Chapter 1 THE GENERAL PART INTRODUCTION 1.01 Historical Background 1.02 Scope of Illinois Criminal Law 1.03 Purposes of Illinois Criminal Law 1.04 State Criminal Jurisdiction 1.05 Criminal Venue 1.06 Classifications of Offenses 1.07 Lesser Included Offenses and Same Physical Act Doctrine 1.08 Various Approaches to Lesser Included Offenses 1.09 Same Physical Act Doctrine/One Act-One Crime Rule Chapter 2 CRIMINAL ACT AND MENTAL STATE 2.01 Introduction 2.02 Criminal Acts: Commissions 2.03 Criminal Acts: Omissions 2.04 Criminal Acts: Possession 2.05 Mental States: Generally 2.06 Mental States: Intent 2.07 Mental States: Knowledge 2.08 Mental States: Recklessness 2.09 Mental States: Negligence 2.10 Mental States: Absolute Liability Chapter 3 ACCOUNTABILITY FOR THE CRIMINALITY OF OTHERS 3.01 Introduction 3.02 Common Law 3.03 Modern Accountability for Conduct of Another 3.04 The Actus Reus of Accomplice Liability 3.05 Mens Rea: Specific Intent to Aid and Abet Target Crime iii

6 3.06 Mens Rea and Incidental Crimes 3.07 Mens Rea and Subsequent Crimes Beyond the Initial Common Design 3.08 Mens Rea and the Reluctant Accomplice 3.09 Withdrawal from the Crime 3.10 Exceptions to Accomplice Liability: Conduct of Victims and Those Involved in Crime as Incidental Matter 3.11 Responsibility of Corporation 3.12 Individual Accountability for Conduct of Corporations Chapter 4 CONSPIRACY 4.01 Introduction 4.02 Conspiracy Codified 4.03 Conspiracy Against Civil Rights 4.04 The Agreement 4.05 Proof of Agreement 4.06 Single Conspiracy Versus Multiple Conspiracies 4.07 Object of Conspiratorial Agreement: An Offense 4.08 Mental State 4.09 Overt Act 4.10 Responsibility for Crimes of Coconspirators 4.11 Absence of Liability of Coconspirator 4.12 Wharton s Rule and the Legislative Exemption Rule 4.13 Withdrawal 4.14 Multiple Convictions: Conspiracy and Substantive Crimes Chapter 5 ATTEMPT AND SOLICITATION 5.01 Introduction 5.02 Criminal Attempt 5.03 Attempt: Mental State 5.04 Attempt: Overt Act 5.05 Object of Attempt: An Offense 5.06 Attempt Based on Accomplice Theory 5.07 Withdrawal From Criminal Attempt 5.08 Impossibility: Legal and Factual 5.09 Felony-Murder Based on Criminal Attempt 5.10 Lesser Included Offenses and Attempt 5.11 Criminal Solicitation iv

7 5.12 Criminal Solicitation: Mental State 5.13 Criminal Solicitation: Act 5.14 Solicitation of Murder 5.15 Solicitation of Murder for Hire 5.16 Lesser Included Offenses and Solicitation PART 2 Chapter 6 THE SPECIAL PART CRIMES HOMICIDE 6.01 Introduction 6.02 Homicide Generally 6.03 Early Classifications of Illegal Homicide 6.04 Common Law Murder: Killing with Malice Aforethought 6.05 Common Law Classifications of Murder 6.06 Murder: Modern Law 6.07 Common Law Manslaughter: Killing Without Malice Aforethought 6.08 Common Law Classifications of Manslaughter 6.09 Manslaughter: Modern Law 6.10 Background of Illinois Homicide Prohibitions 6.11 First Degree Murder 6.12 Second Degree Murder 6.13 Involuntary Manslaughter and Reckless Homicide 6.14 Intentional Homicide of an Unborn Child 6.15 Voluntary Manslaughter of an Unborn Child 6.16 Involuntary Manslaughter and Reckless Homicide of an Unborn Child 6.17 Drug-Induced Homicide 6.18 Concealment of Homicidal Death 6.19 Concealment of Death 6.20 Lesser Included Offenses Chapter 7 KIDNAPPING AND RELATED OFFENSES 7.01 Introduction 7.02 Kidnapping 7.03 Aggravated Kidnapping 7.04 Unlawful Restraint and Aggravated Unlawful Restraint 7.05 Forcible Detention 7.06 Child Abduction v

8 7.07 Luring of a Minor 7.08 Unlawful Visitation Interference 7.09 Harboring a Runaway 7.10 Aiding or Abetting Child Abduction 7.11 Unlawful Sale of a Public Conveyance Travel Ticket to a Minor 7.12 Unlawful Sending of a Public Conveyance Travel Ticket to a Minor 7.13 Trafficking of Persons and Involuntary Servitude 7.14 Lesser Included Offenses and Kidnapping-Related Crimes Chapter 8 SEX OFFENSES 8.01 Introduction 8.02 The Criminal Sexual Assault Act of Definitions 8.04 Criminal Sexual Assault 8.05 Aggravated Criminal Sexual Assault 8.06 Predatory Criminal Sexual Assault of a Child 8.07 Criminal Sexual Abuse 8.08 Aggravated Criminal Sexual Abuse 8.09 Single or Multiple Convictions of Sexual Assault or Abuse 8.10 Defenses 8.11 Indecent Solicitation of an Adult and Indecent Solicitation of a Child 8.12 Solicitation to Meet a Child 8.13 Sexual Exploitation of a Child 8.14 Permitting Sexual Abuse of a Child 8.15 Custodial Sexual Misconduct 8.16 Presence Within a School Zone by Child Sex Offenders; Approaching, Contacting, Residing With, or Communicating With a Child Within Certain Places by Child Sex Offenders 8.17 Sexual Predator and Child Sex Offender; Presence or Loitering in or Near Public Parks Prohibited 8.18 Sexual Misconduct With a Person With a Disability 8.19 Sexual Relations Within Families 8.20 Prostitution 8.21 Solicitation of a Sexual Act 8.22 Promoting Prostitution 8.23 Promoting Juvenile Prostitution 8.24 Patronizing a Prostitute or Patronizing a Juvenile Prostitute 8.25 Obscenity vi

9 8.26 Child Pornography 8.27 Aggravated Child Pornography 8.28 Commercial Processing of Films Depicting Child Sexual Activity 8.29 Harmful Material 8.30 Tie-In Sales of Obscene Publications to Distributors 8.31 Posting of Identifying Information on a Pornographic Internet Site 8.32 Child Photography by Sex Offender 8.33 Grooming 8.34 Traveling to Meet a Minor 8.35 Public Indecency 8.36 Adultery and Fornication 8.37 Bigamy and Marrying a Bigamist Chapter 9 ASSAULT, BATTERY, AND RELATED OFFENSES 9.01 Introduction 9.02 Assault 9.03 Aggravated Assault 9.04 Battery 9.05 Aggravated Battery 9.06 Battery and Aggravated Battery of an Unborn Child 9.07 Domestic Battery and Aggravated Domestic Battery 9.08 Violation of an Order of Protection 9.09 Interfering With the Reporting of Domestic Violence 9.10 Disclosing the Location of a Domestic Violence Victim 9.11 Abuse or Criminal Neglect of a Long Term Care Facility Residents, an Elderly Person With a Disability 9.12 Tampering with Food, Drugs or Cosmetics 9.13 Capitalize Aggravated 9.14 Reckless Conduct 9.15 Criminal Transmission of HIV 9.16 Vehicular Endangerment 9.17 Criminal Housing Management and Aggravated Criminal Housing Management 9.18 Use of a Dangerous Place for Commission of a Drug Offense 9.19 Common Carrier Recklessness 9.20 Intimidation and Aggravated Intimidation 9.21 Criminal Streetgang Recruitment Offenses 9.22 Compelling Organization Membership of Persons vii

10 9.23 Compelling Confession or Information by Force or Threat 9.24 Hate Crime 9.25 Educational Intimidation 9.26 Stalking and Aggravated Stalking 9.27 Cyberstalking 9.28 Cross Burning 9.29 Threatening Public Officials 9.30 Body Mutilation 9.31 Home Invasion 9.32 Vehicular Invasion 9.33 Dismemberment and Sale of Human Body Parts 9.34 Child Abandonment or Endangerment 9.35 Ritualized Abuse and Mutilation 9.36 Inducement to Commit Suicide 9.37 Sexual Conduct or Sexual Contact With an Animal 9.38 Possession of Certain Dogs by Felons 9.39 Violent and Sexually Explicit Video Games 9.40 Armed Violence Chapter 10 ELECTRONIC EAVESDROPPING Introduction Federal Constitutional and Statutory Considerations Federal Constitutional Limitations: Evolution of a Person s Expectation of Privacy Consensual Eavesdropping: The Assumption-of-Risk Doctrine Nonconsensual Eavesdropping: Federal Constitutional Restrictions Federal Statutory Restrictions: Title III Criminal Eavesdropping of Conversations in Illinois Criminal Eavesdropping of Conversations Codified Elements of Eavesdropping of Conversations Permissible Consensual Eavesdropping of Conversations: Consent of All or Court Authorization Permissible Non-Consensual Eavesdropping of Conversations Permissible Emergency Eavesdropping of Conversations Subsequent Challenges of Court Authorization Scope of the Prohibition on the Eavesdropping of Conversations Illegal Interception of Electronic Communications Statutory Exclusionary Rule viii

11 10.17 Federal-State or Sister State Collusion Chapter 11 THEFT-AND FRAUD-RELATED OFFENSES Introduction Theft: The General Provision Offender s Interest in Property: No Defense Specific Theft Provisions An Introduction Theft of Lost or Mislaid Property Theft of Labor or Services or Use of Property Theft Offenses Dealing with Coin-Operated Machines, Theft Detection Devices, and Scanning Devices Unlawful Use of Recorded Sounds or Images and Unidentified Sound or Audio Video Recordings Theft of Utility Services Theft of Advertising Services Tampering with Communication Services Retail Theft Delivery Container Theft Identity Theft Internet Offenses Deceptive Practices False Personation Forgery Deceptive Sale of Gold or Silver Offenses Involving Deceptive Collection Practices Deceptive Advertising State Benefits Fraud WIC Fraud Persons under Deportation Order; Ineligible for Benefits False Information on an Application for Employment with Certain Public or Private Agencies; Use of False Academic Degree Fraud on a Government Entity Public Aid Wire and Mail Fraud Deceptive Practices Involving Disadvantaged Groups and Governmental Units Insurance Fraud Financial Institution Fraud and Loan Fraud Insurance Claims for Excessive Charges ix

12 11.32 Fraudulent Tampering with Vehicles or Safety Systems Fraud in Transfers of Real and Personal Property Fraud in Stock Transactions Obstruction of Utility and Service Meters Mail and Wire Fraud Misconduct by a Corporate Official Fraud on Creditors Offenses Relating to Procuring, Possessing, and Selling Credit Cards Offenses Proscribing Various Uses of Credit Cards Capitalize Services Fraudulent Use of Another s Card, Altered Cards, or Incomplete Cards Fraudulent Deposits, Electronic Transmissions, and Payment of Charges Furnishing or Failing to Furnish Items of Value with Intent to Defraud Computer Related Offenses Financial Exploitation of an Elderly Person or Person With a Disability Defrauding Drug and Alcohol Screening Tests Fraudulent Production of an Infant Criminal Usury Promotion of Pyramid Sales Schemes Unauthorized Use of University Stationery Unlawful Possession of Device for Manufacturing a False Universal Price Code Label Chapter 12 ROBBERY AND RELATED OFFENSES Introduction Robbery Armed Robbery Aggravated Robbery Vehicular Hijacking and Aggravated Vehicular Hijacking Lesser Included Offenses Chapter 13 BURGLARY, ARSON, AND OTHER OFFENSES AGAINST PROPERTY Introduction Burglary Possession of Burglary Tools Unlawful Sale of Burglary Tools x

13 13.05 Residential Burglary Lesser Included Offenses and Burglary Criminal Trespass to Residence Criminal Fortification of a Residence or Building Arson Aggravated Arson Residential Arson Place of Worship Arson Lesser Included Offenses and Arson Possession of Explosives or Explosive or Incendiary Devices Criminal Damage to Property Criminal Damage of Fire Fighting Apparatus, Hydrants, or Equipment Institutional Vandalism Criminal Defacement of Property Jackrocks Criminal Trespass to Vehicles Criminal Trespass to Real Property Criminal Damage to Government Supported Property Criminal Trespass to State Supported Land Unauthorized Possession or Storage of Weapons Criminal Trespass to Restricted Areas at Airports Criminal Trespass to a Nuclear Facility Criminal Trespass to a Place of Public Amusement Criminal Use of a Motion Picture Exhibition Facility Residential Picketing Interference With Public Institution of Education Distributing or Delivering Written or Printed Solicitation on School Property Criminal Trespass to a Safe School Zone Chapter 14 OFFENSES AFFECTING GOVERNMENTAL FUNCTIONS Introduction Treason Misprision of Treason Advocating Overthrow of the Government Resisting or Obstructing a Peace Officer, Firefighter or Correctional Institution Employee xi

14 14.06 Disarming a Peace Officer or Correctional Institution Employee Obstructing Service of Process Obstructing Justice Obstructing Identification Concealing or Aiding a Fugitive Escape Aiding Escape Refusing to Aid an Officer Obstructing an Emergency Management Worker Offenses Involving Contraband Into Penal Institutions Compounding a Crime Perjury Subornation of Perjury Communicating with Jurors and Witnesses Harassment of Representatives for the Child, Jurors, Witnesses and Others Jury Commissioner Bribery Witnesses Accepting Payments Before Judgment or Verdict Payment of Jurors by Parties Interfering with the Duties of a Judicial Officer Retaliating Against a Judge by False Claim, Slander of Title, or Malicious Recording of Fictitious Liens Performance of Unauthorized Acts Simulating Legal Process Tampering with Public Records Tampering With Public Notice Violation of Bail Bond Barratry Maintenance Unlawful Clouding of Title Unlawful Manipulation of a Judicial Sale Bribery Failure to Report a Bribe Official Misconduct Solicitation Misconduct in State or Local Government Peace Officer or Correctional Officer Acting in Furtherance of Gang- Related Activity Preservation of Evidence xii

15 14.41 Bribery to Obtain Driving Privileges Public Contractor Misconduct Interference With Public Contracting Legislative Misconduct Chapter 15 OFFENSES AFFECTING THE PUBLIC HEALTH, SAFETY, AND DECENCY Introduction Unlawful Use of Weapons Unlawful Use or Possession of Weapons by Felons or Persons in the Custody of the Department of Corrections Facilities Aggravated Discharge of a Firearm Aggravated Discharge of a Machine Gun or a Firearm Equipped with a Device Designed or Used for Silencing the Report of a Firearm Reckless Discharge of a Firearm Aggravated Unlawful Use of a Weapon Armed Habitual Criminal Unlawful Possesion of a Firearm by a Street Gang Member Unlawful Use of Firearm Projectiles Manufacture, Sale, or Transfer of Bullets Represented to be Armor Piercing Bullets, Dragon s Breath Shotgun Shells, Bolo Shells, or Flechette Shells Unlawful Sale of Firearms Unlawful Possession of Firearms and Firearm Ammunition Unlawful Discharge of Firearm Projectiles Unlawful Sale or Delivery of Firearms on the Premises of Any School Unlawful Sale of Firearms by Liquor Licensee Unlawful Purchase of a Firearm Unlawful Use of a Firearm in the Shape of a Wireless Telephone Use of a Stolen Firearm in the Commission of an Offense Possession and Aggravated Possession of a Stolen Firearm Gunrunning Register of Sales by Dealer Defacing Identification Marks of Firearms Firearms and Child Protection Handgun Safety Devices Unlawful Possession or Distribution of Nitrous Oxide Aiming a Laser Pointer at a Peace Officer or Aircraft xiii

16 15.28 Mob Action Looting by Individuals Unlawful Contact With Street Gang Members Disorderly Conduct False report of theft and other losses Interference With Emergency Communication Use of a Facsimile Machine in Unsolicited Advertising or Fund Raising Unauthorized Video Recording and Live Video Transmission Dog Fighting Disorderly Conduct at a Funeral or Memorial Service Gambling Syndicated Gambling Keeping a Gambling Place Bribery in Contests Commercial Bribery Money Laundering Terrorism Chapter 16 DRUG CONTROL LAWS Introduction Cannabis Control Act Controlled Substances Act Ephedra Prohibition Act Drug Paraphernalia Control Act Methamphetamine Control and Community Protection Act Methamphetamine Precursor Control Act PART 3 Chapter 17 AFFIRMATIVE DEFENSE DEFENSE OF PERSON AND PROPERTY Introduction Defense of Person: Codification and Legislative Intent Self-Defense Generally Elements of Self-Defense Scope of Self-Defense Defense of Another Generally Defense of Dwelling and Other Property Generally xiv

17 17.08 Use of Force in Defense of Other Property Affirmative Defense Chapter 18 DEFENSES: LACK OF CRIMINAL RESPONSIBILITY DUE TO INSANITY, INTOXICATION, AND INFANCY Introduction Defense of Insanity: Background of Current Law Defense of Insanity Codified Elements of Insanity Defense Guilty but Mentally Ill Waiver of Insanity Defense Theoretical Basis for Insanity Defense Affirmative Defenses: Burden of Proof Defense of Intoxication or Drugged Condition: Background of Current Law Voluntary Intoxication As a Defense: A Historical Perspective Defense of Intoxication or Drugged Condition Codified Burden of Proof, Instructions, and Trier of Fact s Verdict Defense of Infancy: Background of Current Law Defense of Infancy Codified Chapter 19 DEFENSES: MISTAKE, COMPULSION, NECESSITY, ENTRAPMENT, PUBLIC AUTHORITY, AND OTHER JUSTIFICATIONS OR EXCUSES Introduction Defense of Ignorance or Mistake of Fact or Law: Background of Current law Defense of Ignorance or Mistake of Fact or Law Codified Defense of Compulsion: Background of Current Law Defense of Compulsion Codified Defense of Necessity: Background of Current Law Defense of Necessity Codified Elements of Necessity Defense of Entrapment: Background of Current Law Defense of Entrapment Codified Elements of Entrapment Procedural Aspects and Evidentiary Problems of the Entrapment Defense Defense of Public Authority: Background of Current Law xv

18 19.14 Defense of Public Authority Codified Defense of Consent Defense of Statute of Limitations Defense of Failure to Simultaneously Commence All Prosecutions Arising Out of Same Conduct Defense of Former Prosecution Appendix SENTENCES FOR ILLINOIS CRIMES Table of Cases Table of Statutes Index xvi

19 Dedication To my late father and mother, Lawrence and Loretta Decker, for their encouragement and support over many years. John F. Decker To my parents, Robert and Julie, and my wife, Anne, for always inspiring and encouraging me. Christopher Kopacz xvii

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21 Acknowledgements The authors wish to acknowledge the support of a substantial number of research assistants, all of whom were or are students at the DePaul University College of Law, in the preparation of the manuscript that forms the basis of this Fifth Edition of Illinois Criminal Law: A Survey of Crimes and Defenses. First, we wish to extend tremendous thanks to the important contribution of four Senior Research Assistants, who not only devoted a great amount of effort toward completion of this project, but also provided important leadership and direction to other persons who were involved in this endeavor. They are Tyler Brimmer, Sean Conley, Katie Idzik and Kim Musick. This treatise was developed over the period of over three years beginning in 2009 and, as such, we enjoyed the support of many additional research assistants during this period. They were Ian Burkow, Ashlee Cuza, Ryan DeGroot, Lisa Duarte, Gretchen Eckerdt, Leah Farmer, Renee Gross, Darron Hubbard, Elizabeth Keleher, David Larson, Suresh Pillia, Jason Roach, Elyse Ryan, Adam Sedia and Melissa Skinner. Each year since the publication of the Fourth Edition of this treatise, we were responsible for completion of the annual Cumulative Supplement, which provided the foundation for this latest edition. Daria Porta, a Senior Research Assistant, as well as Matthew Bing and Jessica Bloodgood were involved in this important endeavor. We also wish to give special thanks to Whitney Bloomer, our prose expert, whose editing greatly improved the flow of each chapter of this treatise. Finally, we wish to thank our family, friends, colleagues and students for their patience and moral support as they endured the challenges and distractions we encountered in completing this manuscript. John F. Decker Christopher Kopacz January 12, 2012 xix

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