2021 IL App (4th) 190660
Ill. App. Ct.2021Background:
- Victim J.M., born 2006, alleged repeated sexual abuse by his grandfather John T. McKown between ~2012–2017 while visiting his father’s home; allegations included anal penetration, oral contact, touching, and semen on J.M.’s buttocks.
- Defendant gave multiple recorded statements to police admitting various sexual acts in J.M.’s presence (masturbation, ejaculation, some contact) but his accounts changed over time and denied some specific allegations.
- Two Child Advocacy Center (CAC) interviews and trial testimony from J.M. contained inconsistencies about locations, participants, frequency, and some acts; trial was a bench trial.
- Police seized collages in defendant’s basement: cut‑outs of real children’s faces juxtaposed with adult male genitalia; court found these to be child pornography.
- Trial court convicted defendant of predatory criminal sexual assault (count I), two counts of aggravated criminal sexual abuse (counts IV and V), and possession of child pornography (count VII), and sentenced him to 20 years; on appeal the court affirmed in part and reversed count IV.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether count IV (J.M.’s hand on defendant’s penis) violated corpus delicti/corroboration rule | Defendant’s recorded admissions corroborate that specific act; other sexual‑act evidence supports conviction | Count IV is supported only by defendant’s confession; no independent evidence corroborates J.M. touching defendant’s penis | Reversed — conviction for count IV violated corpus delicti because no independent corroboration of that specific act |
| Whether counts I (penis in J.M.’s anus) and V (semen on J.M.’s buttocks) satisfied corpus delicti and sufficiency | J.M.’s trial testimony and earlier CAC interview described anal penetration and semen; defendant’s admissions corroborate those acts | Inconsistencies in J.M.’s accounts and reliance on defendant’s statements render evidence insufficient | Affirmed — J.M.’s statements (trial + initial CAC) combined with defendant’s admissions sufficiently corroborated and supported convictions for counts I and V |
| Whether defendant’s collages constituted child pornography and whether criminalizing them violates the First Amendment | Collages use images of real children combined with adult genitalia, fall within Illinois child‑pornography statute, and are unprotected under Ferber/Osborne | Collages are virtual/altered images not depicting actual sexual acts by children and thus protected per Ashcroft | Affirmed — collages constituted child pornography under the statute; Ashcroft (virtual porn) inapplicable because images used real children and posed harms described in Ferber; conviction upheld |
| Whether trial‑court confusion about counts/credibility undermined verdicts | Defendant’s admissions corroborated the counts the court convicted; court properly exercised fact‑finding | Trial court’s comments show confusion between counts (IV vs VI), potentially undermining the guilty finding for count IV | Court acknowledged confusion but corrected outcome by reversing count IV and affirming other convictions; sentence otherwise upheld |
Key Cases Cited
- People v. Sargent, 940 N.E.2d 1045 (Ill. 2010) (corroboration rule requires independent evidence tending to show commission of each specific offense charged)
- People v. Lara, 983 N.E.2d 959 (Ill. 2012) (defendant’s confession must be corroborated by independent evidence for corpus delicti proof)
- People v. Harris, 120 N.E.3d 900 (Ill. 2018) (standard for reviewing sufficiency of evidence—view evidence in light most favorable to prosecution)
- New York v. Ferber, 458 U.S. 747 (U.S. 1982) (child pornography is outside First Amendment protection; state may proscribe materials depicting sexual conduct by minors)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (U.S. 2002) (struck portions of federal statute banning virtual child pornography created without using real children)
- People v. Alexander, 791 N.E.2d 506 (Ill. 2003) (Illinois statute provision banning virtual child pornography invalidated; prohibitions applying to images of actual children remain constitutional)
- People v. Lamborn, 708 N.E.2d 350 (Ill. 1999) (discusses Ferber and the State’s interest in preventing harm to children in child‑pornography context)
- United States v. Hotaling, 599 F. Supp. 2d 306 (D. N.D. 2008) (computer‑morphed images combining real children's faces with sexual content not protected by First Amendment and implicate real‑child interests)