noting that, under Illinois law, resistance is not necessary to prove sexual as‐ sault
How later courts described this case
- noting that, under Illinois law, resistance is not necessary to prove sexual as‐ sault
- noting that New Jersey has taken the position that “‘force” was present . . . because some force was inherently needed to perform the sexual act”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1531
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
BRIAN D. JOHNSON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 00498 — Charles R. Norgle, Judge.
____________________
ARGUED NOVEMBER 5, 2013 — DECIDED FEBRUARY 12, 2014
____________________
Before BAUER, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. Unexpectedly for both the
government and defense counsel, Brian Johnson’s former
girlfriend, S.W., appeared at his sentencing hearing and
stated she wanted to testify. Johnson had pled guilty to
failure to register as a sex offender, and the government’s
sentencing memorandum requested an enhancement for
committing a sex offense on the basis that Johnson sexually
assaulted S.W. With neither party wishing to call her as a
2 No. 13‐1531
witness, the judge exercised his authority to call Johnson’s
S.W. to the stand. She testified that although she did not
want Johnson to perform oral sex on her on the date in
question, he did anyway but did not use force. The judge
relied on and believed S.W.’s testimony at the sentencing
hearing when it imposed a U.S.S.G. § 2A3.5(b)(1)(A)
enhancement for committing a sex offense while in failure to
register status. Because the crimes of criminal sexual assault
and abuse in Illinois require the use or threat of force in such
a situation, Johnson should not have received the
enhancement for committing a sex offense while in failure to
register status. We therefore vacate Johnson’s sentence and
remand for resentencing.
I. BACKGROUND
Brian Johnson was convicted in Nebraska state court of
third degree sexual assault of a child. His conviction
required him to register as a sex offender under the Sex
Offender Registration and Notification Act (“SORNA”). He
failed to register or report his new address after his release
from prison in December 2011, and a warrant for his arrest
was issued two weeks later.
On April 22, 2012, the Chicago Police Department
responded to a call of an alleged sexual assault by Johnson
against S.W., Johnson’s former girlfriend and the mother of
several of his children. She told a responding officer that
Johnson dragged her to a bedroom and started taking her
clothes off even though she said she did not want to have
sex. She also told the officer that Johnson performed oral sex
on her, and then placed his penis in her vagina while she
told him “no.” The police transported S.W. to a hospital. She
No. 13‐1531 3
did not press charges against Johnson, and no charges were
filed.
On May 31, 2012, Johnson was arrested on the
outstanding warrant, and he was charged the next month
with failure to register as a sex offender under SORNA, in
violation of 18 U.S.C. § 2250(a). In August 2012, S.W. signed
a notarized affidavit stating that the report she made of the
alleged sexual assault on April 22, 2012 was untrue.
Johnson pled guilty to the failure to register charge
several months later. The probation officer’s presentence
investigation report (“PSR”) stated that it was that officer’s
assessment that there was not a preponderance of evidence
to suggest that the alleged sexual assault against S.W.
occurred. The report noted S.W. had made contradictory
statements on several occasions about the alleged assault;
Johnson had continuously denied the alleged sexual assault
in his letters to S.W. and during recorded telephone
conversations with her; there were no witnesses to the
alleged assault; the incident report reflected no visible
injuries, scratches or bruises on S.W.; and Johnson’s letters to
S.W discussed sexual events in the past and future that
raised doubt for the officer as to whether the alleged sexual
assault was not consensual.1 The PSR therefore did not
1 While we understand the probation officer to have made these
comments as part of an assessment of all the circumstances, we make a
few things clear. While there were no witnesses, corroboration is not
necessary to prove a sexual offense in Illinois; a victim’s testimony is
enough. People v. Schott, 582 N.E.2d 690, 696–97 (Ill. 1991). In addition, a
lack of physical injury is not dispositive; “[p]hysical injury or resistance
is not necessary to prove a victim was forced to have sexual intercourse,
and a victim need not subject herself to serious bodily harm by resisting
… .” People v. Bowen, 609 N.E.2d 346, 356 (Ill. App. Ct. 1993). And one can
4 No. 13‐1531
assess a six‐level enhancement for committing a sexual
offense against someone other than a minor while in a
failure to register status under U.S.S.G. § 2A3.5(b)(1)(A). The
government stated in its sentencing memorandum that it
would request the enhancement at the sentencing hearing.
At the sentencing hearing, although neither the
government nor the defense counsel expected her or
intended to call her as a witness, S.W. appeared in the
courtroom and expressed her desire to testify. The
prosecutor met with S.W. and then conveyed S.W.’s desire to
make a statement to the court. Both parties, however,
reiterated their positions that they would not be calling her
as a witness in the sentencing hearing. The court, exercising
its authority to do so, see, e.g., Fed. R. Evid. 614, allowed S.W.
to testify.
Before S.W. took the stand, Johnson’s counsel stated to
the court that although he was not her lawyer, his opinion
was that S.W. should speak with a lawyer before testifying
because her testimony might contradict her previous
notarized statement or the statement she made to a federal
marshal. After S.W. confirmed on the witness stand that she
wished to testify and intended to tell the truth, the judge
asked S.W. if she wanted to speak to a lawyer before she
testified. S.W. answered “yes.” The judge then asked her
why, and she responded because of the previous statement
she made, which she said was a misunderstanding. Rather
than allowing her time to speak to an attorney, the court
certainly be sexually assaulted even after having had consensual
relations with the same person in the past. See People v. Wheeler, 558
N.E.2d 758, 761 (Ill. App. Ct. 1990).
No. 13‐1531 5
informed her that the matter had long been set and that if
she intended to testify at all, she would do so that day. The
court also advised her that she was not required to take the
witness stand, that if she did she needed to tell the truth, and
that she could be punished if she was not truthful.
S.W.’s appearance at the sentencing hearing was
unexpected, and delaying a scheduled hearing is never ideal.
Nonetheless, we note that in light of the decision to allow
her to testify and the strong indications that she would
testify in a manner contrary to her prior statements, the safer
course would have been to allow S.W. time to speak to an
attorney before her testimony. The court might have also
inquired of the prosecutor whether it would assure her
immunity if she testified.
After being sworn, S.W. testified that on April 22, 2012,
Johnson told her he was taking her to his cousin’s house.
When they arrived, she realized they were not at his cousin’s
home but at the home of the mother of several of his other
children. S.W. testified that because she was jealous, she
made a false report to the police. She also testified that
Johnson did not rape her and that he had performed oral sex
on her but had not used physical force. She said Johnson was
a good father and deserved a second chance, and that she
was upset she had lied.
The court then gave the prosecutor an opportunity to
question S.W. That questioning went as follows:
Q. On April 22nd, 2012, did Brian Johnson force oral
sex upon you?
A. I did say that he did that.
6 No. 13‐1531
Q. You stated that because he did, in fact, force oral
sex upon you?
A. Yes, I did say that. I mean, he—he didn’t really use
force on me. But he did force on me, but he didn’t
use force, like physical force.
Q. You did not want him to perform oral sex upon
you, is that correct?
A. Yes, that’s correct. I didn’t want him doing it
because I was over at his kids’ mother house at
that time. I did at the time. There, I didn’t, no.
Q. Yet he performed oral sex upon you, is that right?
A. Yes.
On cross examination, defense counsel asked S.W.
whether Johnson raped her on April 22, and she replied,
“No, he didn’t.” She also confirmed that she was the mother
of four of his children, had prior sexual intercourse with
Johnson that was all consensual, and that she had been
drinking. The judge verified with S.W. that she understood
the prosecutor’s questions and had answered them
truthfully, and her testimony ended.
Johnson’s base offense level under U.S.S.G. § 2A3.5(a)(1)
was sixteen because he had been required to register as a
Tier III sex offender. The prosecutor requested, as it had in
its sentencing memorandum, that the judge apply the six‐
level enhancement in U.S.S.G. § 2A3.5(b)(1)(A) for
committing a sex offense while in failure to register status
based on Johnson’s conduct on April 22. Johnson’s counsel
disagreed, arguing in part that there was no sexual conduct
with force as required by Illinois statute. The prosecutor
No. 13‐1531 7
made arguments in support of the enhancement but did not
specifically address whether force was present. The
sentencing judge credited S.W.’s testimony, found that
Johnson performed oral sex on S.W. without her consent,
and applied the enhancement. The judge also imposed a
two‐level obstruction of justice enhancement pursuant to
U.S.S.G. § 3C1.1. The resulting offense level of twenty‐four,
combined with Johnson’s criminal history category of VI,
yielded an advisory guideline range of 100 to 125 months.
The district court sentenced Johnson to ten years’
imprisonment, and he appeals.
II. ANALYSIS
Johnson argues that he should not have received a six‐
level enhancement pursuant to U.S.S.G. § 2A3.5(b)(1)(A) for
committing a sex offense against someone other than a
minor while in failure to register status. For purposes of this
guideline, a “sex offense” includes “(i) a criminal offense
that has an element involving a sexual act or sexual contact
with another” or “(v) an attempt or conspiracy to commit an
offense described in [clause] (i).” 42 U.S.C. § 16911(5);
U.S.S.G. § 2A3.5(b)(1)(A) cmt. n. 1. The term “criminal
offense” means a State, local, tribal, foreign, or military
offense or other criminal offense. 42 U.S.C. § 16911(6).
While Johnson contends that the enhancement was
unwarranted, the government maintains that Johnson
committed criminal sexual assault or criminal sexual abuse
in violation of Illinois law. The Illinois criminal sexual
assault statute provides in relevant part that a criminal
sexual assault occurs when a person “commits an act of
sexual penetration” and “uses force or threat of force.” 720
8 No. 13‐1531
Ill. Comp. Stat. 5/11‐1.20.2 “Sexual penetration” under the
statute includes oral sex. See 720 Ill. Comp. Stat. 5/11‐0.1
(“Sexual penetration means any contact, however slight,
between the sex organ … of one person and … the sex organ
… of another person, or any intrusion, however slight, of
any part of the body of one person … into the sex organ …
of another person, including … cunnilingus.”); People v.
Leonard, 879 N.E.2d 414, 418 (Ill. App. Ct. 2007). A person
commits criminal sexual abuse in violation of Illinois law by
committing an act of sexual conduct by the use of force or
threat of force. 720 Ill. Comp. Stat. 5/11‐1.50(a)(1).3 “Sexual
conduct” includes oral sex. See 720 Ill. Comp. Stat. 5/11‐0.1.
In a sentencing hearing in federal court like this, the
government bears the burden of proving by a
preponderance of the evidence that a sentencing
enhancement is warranted. United States v. Hines, 449 F.3d
2 The statute provides for other means of committing criminal sexual
assault as well, but the government does not contend those apply here.
Criminal sexual assault also occurs in Illinois when a defendant commits
an act of sexual penetration and knows that the victim is unable to
understand the nature of the act and is unable to give knowing consent;
or is a family member of the victim, and the victim is under 18 years of
age; or 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 Ill. Comp. Stat. 5/11‐1.20(a)(2)–(4).
Although S.W. testified she had been drinking on April 22, there is no
suggestion she was unable to understand the nature of the act or unable
to give knowing consent.
3 A person can also commit criminal sexual abuse by committing an act
of sexual conduct knowing that “the victim is unable to understand the
nature of the act or is unable to give knowing consent.” 720 Ill. Comp.
Stat. 5/11‐1.50(a)(2). There is no suggestion that this provision applies in
this case.
No. 13‐1531 9
808, 815 (7th Cir. 2006). So the government bore the burden
of establishing that Johnson committed a sex offense against
S.W. in violation of Illinois law, and more particularly that he
performed a sexual act on her using force or the threat of
force. See id.; 720 Ill. Comp. Stat. 5/11‐1.20; 720 Ill. Comp.
Stat. 5/11‐1.50.
When analyzing whether Johnson used force, one
approach might be to find that “force” was present here
because some force was inherently needed to perform the
sexual act. At least one state has taken this approach. See
State in Interest of M.T.S., 609 A.2d 1266, 1276–77 (N.J. 1992)
(defining “physical force” under New Jersey sexual offense
statutes as “act of sexual penetration engaged in by the
defendant without the affirmative and freely‐given
permission of the victim” and holding that no physical force
“extrinsic to the sexual act” need be shown). But in Illinois,
“force” within the meaning of criminal sexual assault and
abuse does not mean the force inherent in the sexual act;
more is required. People v. Haywood, 515 N.E.2d 45, 48–50 (Ill.
1987); People v. Denbo, 868 N.E.2d 347, 355 (Ill. App. Ct. 2007)
(stating “force” within the meaning of the criminal sexual
offenses “does not mean the force inherent to all sexual
penetration … but physical compulsion, or a threat of
physical compulsion, that causes the victim to submit to the
sexual penetration against his or her will.”).
For purposes of both criminal sexual assault and criminal
sexual abuse, Illinois defines “force or threat of force” to
mean:
the use of force or violence or the threat of force or
violence, including, but not limited to, the following
situations:
10 No. 13‐1531
(1) when the accused threatens to use force or
violence on the victim or on any other
person, and the victim under the
circumstances reasonably believes that the
accused has the ability to execute that
threat; or
(2) when the accused overcomes the victim by
use of superior strength or size, physical
restraint, or physical confinement.
720 Ill. Comp. Stat. 5/11‐0.1. That said, “[t]here is no definite
standard establishing the amount of force which the State is
required to prove to show [criminal sexual assault].”People v.
Vaughn, 961 N.E.2d 887, 896 (Ill. App. Ct. 2011) (quoting
People v. Bolton, 566 N.E.2d 348, 351 (Ill. App. Ct. 1990)).
The government argued at the sentencing hearing that
the enhancement was proper on the basis that the sexual
conduct took place without S.W.’s consent. While there is no
definite standard as to the amount of force needed, what is
clear is that because Illinois law is at issue, Johnson must
have used force or the threat of force in order to have
committed criminal sexual assault or abuse against S.W. See
720 Ill. Comp. Stat. 5/11‐1.20(a)(1); 720 Ill. Comp. Stat. 5/11‐
1.50; Denbo, 868 N.E.2d at 358 (reversing aggravated sexual
assault conviction after finding insufficient evidence of force
or threat of force). Some states make it a crime to have sexual
intercourse with another without that person’s consent, with
no showing of force or threat of force required. See, e.g., Wis.
Stat. § 940.225(3) (defining crime of third degree sexual
assault to mean “sexual intercourse with a person without
No. 13‐1531 11
the consent of that person”)4; see also John F. Decker & Peter
G. Baroni, “No” Still Means “Yes”: The Failure of the Non‐
Consent” Reform Movement in American Rape and Sexual
Assault Law, 101 J. Crim. L. & Criminology 1081, 1086–90
(2011) (discussing state laws which criminalize having
sexual intercourse or contact without consent). “Consent”
appears in the Illinois criminal statutes relevant to sexual
offenses, but it appears as a defense to a charge of sexual
assault or abuse with force or threat of force. 720 Ill. Comp.
Stat. 5/11‐1.70.5 Illinois does not, however, have a statute that
criminalizes sexual intercourse with another adult without
the other’s consent, without more. See Decker & Baroni,
supra, at 1085–86 & n.21 (discussing Illinois and other states
that “do not have any non‐consent sex offenses”). Therefore,
the district court’s finding that Johnson performed oral sex
without S.W.’s consent was not sufficient to support the
enhancement.
And the district court did not find that Johnson used
force or the threat of force. But as we explained, the Illinois
sex offenses require such a showing. The government points
out that force can be found in statements from S.W. that pre‐
4 Wisconsin defines “consent” to mean “words or overt actions by a
person who is competent to give informed consent indicating a freely
given agreement to have sexual intercourse or sexual contact.” Wis. Stat.
§ 940.225(4).
5 The Illinois statute defines “consent” to mean “a freely given
agreement to the act of sexual penetration or sexual conduct in
question.” 720 Ill. Comp. Stat. 5/11‐1.70(a). The statute further states:
“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.” Id.
12 No. 13‐1531
date the sentencing hearing, and it argues that the district
court relied at least in part on documents containing these
statements when it imposed the six‐level enhancement.
There is no evidence in the record to support that. The
district court never mentioned any of S.W.’s prior statements
to the police or federal marshal as it considered whether to
impose the enhancement. Rather, the sentencing hearing
transcript reflects that the district court found S.W.’s
testimony at the hearing credible and that it imposed the
enhancement based on that testimony. After hearing her
testimony and the parties’ arguments as to whether the
enhancement was warranted, the judge stated:
The issue of what happened on April 22nd becomes
clear now that the Court has heard the testimony of
Ms. W. here in court today. She came before the Court
not having been subpoenaed, not compelled to be
here, came in and insisted on taking the witness stand
… . The government asked her very specific
questions. She gave very specific answers … . What
she ultimately testified to today is that she did not
consent to oral sex upon her by the defendant, Brian
D. Johnson. She made that statement under oath. It is
for the Court to determine the credibility of the
witness at this sentencing hearing. I listened to her
testimony very closely, observed her on the witness
stand, had an opportunity to judge her demeanor,
and I find that on this issue of what occurred on April
22nd, she is a credible witness. And that the
defendant performed oral sex upon her against her
will and without her consent. And the objection to the
six‐level enhancement is overruled.
No. 13‐1531 13
The prosecutor then asked for clarification from the
court, noting that the probation officer had recommended
against the enhancement. The judge’s response—“The
probation department did not have the benefit of what
occurred [this] morning and did not, of course, hear the
testimony of Ms. [W.] under oath”—further demonstrates
that the judge was imposing the enhancement based only on
S.W.’s testimony at the hearing.
So the judge believed and relied on S.W.’s hearing
testimony in imposing the enhancement. And there is
nothing in S.W.’s hearing testimony from which one can find
that Johnson used force or the threat of force. S.W. testified at
the hearing that Johnson did not rape her. She testified that
while Johnson did perform oral sex on her, “he didn’t, like,
use physical force on me.” Then, when the prosecutor got up
to examine S.W., his first question was whether Johnson
forced oral sex on her. S.W. replied only that she “did say
that he did that.” The prosecutor then asked if she had stated
that because Johnson did, in fact force oral sex upon her, to
which S.W. replied, “Yes, I did say that. I mean he—he didn’t
really use force on me. But he did force on me, but he didn’t
force on me, like physical force.” The prosecutor next asked
S.W. whether she wanted Johnson to perform oral sex on her,
and she said she did not because she was at the home of his
children’s mother.
While S.W. may not have wanted Johnson to perform oral
sex on her, her testimony at the hearing would not support a
finding that he used any force or threat of force in doing so.
Cf. People v. Taylor, 268 N.E.2d 865, 869 (Ill. 1971) (reversing
rape conviction and finding that although act was
“revolting,” it was not done with force). In fact, she
14 No. 13‐1531
specifically stated in two different parts of her testimony that
he did not use force. Her statement that “he didn’t really use
force on me. But he did force on me, but he didn’t force on
me, like physical force” is confusing, but in light of its
internal contradiction, it is not enough to support a
conclusion that Johnson used or threatened force on April
22. And, in any event, the district court did not find that
Johnson used or threatened force.
That is not to say that the requisite force must be physical
force; it need not be. Here, though, there is no indication
from S.W.’s testimony, for example, that she felt overcome by
Johnson’s superior size or strength, or that she felt physically
restrained or confined, cf. 720 Ill. Comp. Stat. 5/11‐0.1, or that
she was fearful or scared of Johnson, cf. Vaughn, 961 N.E.2d
at 896 (finding the use of force or threat of force present
where “the evidence clearly shows the 14‐year‐old girl was
overcome by fear and the sheer presence of her father
committing the offenses that resistance need not have been
established in order to demonstrate the use of force or threat
of force”). And while there may be some situations where a
finding of a lack of consent indicates that the defendant used
force or the threat of force, here S.W.’s hearing testimony—
the testimony upon which the enhancement was based—
does not do so.
Because S.W.’s testimony does not support the requisite
force or threat of force necessary to find that Johnson
committed criminal sexual assault or abuse under Illinois
law, the U.S.S.G. § 2A3.5(b)(1)(A) enhancement was
improper. Although Johnson’s appellate brief focused on
S.W.’s credibility rather than on the element of force, even if
the standard of review is plain error, Johnson’s case must be
No. 13‐1531 15
remanded for resentencing. Cf. United States v. Goodwin, 717
F.3d 511, 525 (7th Cir. 2013) (“[W]hen in a criminal appeal
the court of appeals notices a plain error, it can reverse even
if the appellant had not drawn the error to the court’s
attention.”) (citation omitted). The error was plain, as we
discussed. It affected Johnson’s substantial rights because it
resulted in an improper, and increased, guidelines range. See
United States v. Johns, 732 F.3d 736, 740 (7th Cir. 2013).
Without the six‐level enhancement, Johnson’s advisory
guideline range would have been 57 to 71 months; with it,
the range was 100–125 months. We believe the error
impacted the fairness of the proceedings, noting that
Johnson raised the lack of force at the sentencing hearing,
and we exercise our discretion to correct the error. See United
States v. Jaimes‐Jaimes, 406 F.3d 845, 851 (7th Cir. 2005).
Johnson has therefore met the requirements for plain error,
and we vacate his sentence and remand for resentencing
without the six‐level enhancement.
III. CONCLUSION
Johnson’s sentence is VACATED and his case is REMANDED
for further proceedings.