JM v. Briseno
949 N.E.2d 779
Ill. App. Ct.2011Background
- Petitioner sought a plenary civil no-contact order under 740 ILCS 22/215 after alleged sexual assault by respondent Briseno.
- Emergency no-contact order under 740 ILCS 22/214 granted March 28, 2008; plenary petition followed.
- Event sequence: Wine Mess Feb 15, 2008; law school pub; petitioner heavily intoxicated; petitioner left with respondent; later alleged nonconsensual vaginal penetration.
- Petitioner testified she was coerced and unable to consent; she reported to hospital, underwent rape kit testing, and received medical treatment.
- Note left by respondent and post-incident texts were found to be probative of lack of consent; the parties’ memories and credibility were heavily weighed.
- Trial court denied plenary order; found consent more likely than not; ruling reviewed for manifest weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Act’s standard of proof was misapplied | JM argues burden misallocated; proper standard is preponderance. | Briseno argues court correctly assessed credibility and memory. | No reversal on standard allocation; credibility is factual focus. |
| Whether corroboration of penetration is required | JM contends no requirement for corroborating penetration evidence. | Briseno contends corroboration supported by semen, notes, hospital records. | Court found no need for correlation with physical injury; corroboration not required. |
| Whether victim must testify she lacked capacity to consent due to intoxication | JM asserts lack of freely given agreement due to intoxication; testimony sufficient. | Briseno contends intoxication alone not proven lack of consent. | Court held burden met by preponderance; explicit intoxication proof not strictly required. |
| Whether consent can be presumed from the circumstances | JM argues no presumption of consent; circumstances show lack of consent. | Briseno argues possible consent from conduct/history. | Court did not presume consent; weighed all evidence to find nonconsensual penetration. |
Key Cases Cited
- Bazydlo v. Volant, 164 Ill.2d 207 (1995) (unimpeached testimony credibility; lack of consent evidence)
- People v. Bowen, 241 Ill.App.3d 608 (1993) (lack of consent when circumstances show no consent)
- In re Estate of Savio, 388 Ill.App.3d 242 (2009) (manifest weight standard; fact-finder credibility)
- Vancura v. Katris, 238 Ill.2d 352 (2010) (preponderance standard; factors for amending findings)
- Nasrallah v. Davilla, 326 Ill.App.3d 1036 (2001) (negative inferences from party’s failure to testify)
- People v. Bowen, 241 Ill.App.3d 608 (1993) (consent context; reasonable belief of lack of consent)