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In re Kyle O.9/27/2005
sked the boy to demonstrate how long A.J.H. had her hand on the boy's penis, and the court noted for the record a time of about 4 to 5 seconds. The boy testified that after the touching, A.J.H. told him not to tell anyone. A.J.H. denied touching the boy's private parts. The appellate court noted that the applicable statute defined "sexual conduct" as
"any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused." Ill.Rev.Stat.1989, ch. 38, par. 12-12(e).
In re A.J.H., 210 Ill. App. 3d at 71, 568 N.E.2d at 968, 154 Ill. Dec. at 747. In reversing the conviction, the appellate court stated:
t is not justified to impute the same intent into a child's action that one could reasonably impute into the actions of an adult. Here, [A.J.H.] was 13 years old, and the alleged victim was five. Even accepting [the alleged victim's] allegations as true, we cannot reasonably infer from [A.J.H.'s] actions that she intended sexually to gratify or arouse [the alleged victim] or herself. Without such evidence, an essential element of the crime is missing.
In re A.J.H., 210 Ill. App. 3d at 72, 568 N.E.2d at 968, 154 Ill. Dec. at 747.
The Illinois appellate court recently considered the same issue in In re Matthew K., 355 Ill. App. 3d 652, 823 N.E.2d 252, 291 Ill. Dec. 242 (2005). At the time of the alleged offense in that case, Matthew K. was 12 and the alleged victim, A.L., was 8 years old. A.L. testified that she and Matthew played a game called "'survival'" in Matthew's bedroom, for which game Matthew set the rules, id. at 653, 823 N.E.2d at 253, 291 Ill. Dec. at 243; that Matthew told the other children present to leave and then return in 5 minutes; and that Matthew touched A.L.'s private parts when her pants were down. When A.L. told Matthew that his sliding his finger tickled, Matthew told her to cover her mouth. Matthew then gave A.L. a "'tongue massage,'" wherein he put his mouth to her mouth and wiggled his tongue. Id. at 654, 823 N.E.2d at 253, 291 Ill. Dec. at 243. According to A.L., Matthew did not remove his clothing, make any special noises, or threaten A.L., although he did tell her to keep the incident a secret. A child psychiatrist testified that Matthew was socially immature and that Matthew's actions could be better understood as those of a 10-year-old. The doctor opined that Matthew had no interest in becoming sexually aroused and that Matthew told the doctor that Matthew "wanted to see what it felt like." 355 Ill. App. 3d at 654, 823 N.E.2d at 254, 291 Ill. Dec. at 244. After the trial court found Matthew guilty of aggravated criminal sexual abuse, Matthew appealed, alleging that the State failed to prove beyond a reasonable doubt that Matthew acted with the intent to sexually gratify or arouse.
In reaching its conclusion that the State failed to prove that Matthew acted with the purpose of sexual gratification or arousal, the In re Matthew K. court discussed several prior cases on the issue, including In re A.J.H., 210 Ill. App. 3d 65, 568 N.E.2d 964, 154 Ill. Dec. 743 (1991). In In re E.R.E., 245 Ill. App. 3d 669, 614 N.E.2d 1367, 185 Ill. Dec. 682 (1993), a 12-year-old boy was adjudicated for touching the vagina of a 6-year-old over her clothes and telling the victim not to tell anyone. The boy testified and denied touching the victim. The appellate court held that the State failed to prove the sexual gratification element and reversed the adjudication. In In re Donald R., 343 Ill. App.
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