"Force," within the meaning of 720 Ill. Comp. Stat. Ann. 5/12-12(d) (2004) and 720 Ill. Comp. Stat. Ann. 5/12-13(a)(1) (2004) of the Criminal Code of 1961, does not mean the force inherent to all sexual penetration--for example, the exertion of the hand in the act of pushing into the vagina--but physical compulsion, or a threat of physical compulsion, that causes the victim to submit to the sexual penetration against his or her will.
A same sex couple met at a nursing home and pursued a romantic relationship. The defendant put her hand into the victim's vagina during otherwise consensual sexual relations. The victim pushed defendant twice--harder the second time--intending to signify that she no longer consented to the sexual penetration. Defendant removed her hand on the second push. The jury of the Circuit Court found defendant guilty of aggravated criminal sexual assault. The case was appealed to the Appellate Court of Illinois.
Does pushing on a sexual partner amount to proper communication of withdrawal of consent?
If an aggravated criminal sexual assault happened at all, it happened during the short duration between the first and second push, when defendant, by not moving, prevented the victim from immediately disengaging. The appeals court concluded that no rational trier of fact could find, beyond a reasonable doubt, that a reasonable person in defendant's circumstances would have understood that initial push as a withdrawal of consent. The victim could have said no if she wanted defendant to stop the sexual penetration. The victim did not say no or stop. Instead, she pushed defendant. However, pushing during sexual congress was to be expected. Under the circumstances, a single push to the shoulders, without more, could not serve as an objective communication of the victim's withdrawal of consent.