2022 IL 127683
Ill.2022Background
- Defendant John T. McKown was charged with multiple sexual offenses against his grandson J.M., including predatory criminal sexual assault (count I) and aggravated criminal sexual abuse (counts IV–VI), and with child pornography (count VII).
- J.M. (then 12 at trial) testified he was repeatedly anally penetrated and forced to perform oral sex beginning around age six; he reported a sticky substance on his buttocks after abuse.
- Police found in defendant’s basement collages: cut‑out photos of real young girls’ faces with slits in the mouths into which pictures of erect penises were inserted; defendant admitted cutting and masturbating to the images and made recorded admissions about sexual contact with J.M.
- The 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 (as a lesser‑included of count VII); it acquitted on other counts.
- The appellate court reversed one aggravated‑abuse conviction (count IV) for failing the corpus delicti corroboration requirement but affirmed the remaining convictions; the Illinois Supreme Court granted review and affirmed the appellate judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant’s altered pictures of real children constitute child pornography under 720 ILCS 5/11‑20.1 | Images show identifiable children by simulation engaged in sexual conduct (mouth + another’s sex organ), so they fall within the statute | Morphed/handmade images are not within the statute or are protected speech | Yes. Morphed images of real, identifiable children fall within §11‑20.1 and are unlawful to possess |
| Whether §11‑20.1, as applied to morphed images, violates the First Amendment (overbreadth) | Ferber/Osborne permit broad regulation of child pornography involving real children; morphed images implicate the same harms | Free Speech Coalition bars bans on virtual child pornography and shows overbreadth when no child was abused to create the image | No. Statute constitutional as applied to morphed images of identifiable children; defendant failed to show substantial protected speech chilled |
| Whether defendant’s admissions were independently corroborated for corpus delicti (criminal sexual acts on J.M.) | J.M.’s testimony and physical evidence (sticky substance, other facts) corroborate defendant’s admissions | Some convictions rest primarily on defendant’s statements and inconsistent testimony, so corroboration is lacking | Corroboration was sufficient for predatory assault (count I) and aggravated sexual abuse for semen transfer (count V); conviction on one aggravated‑abuse count (count IV) lacked independent corroboration and was reversed |
Key Cases Cited
- New York v. Ferber, 458 U.S. 747 (states may broadly regulate child pornography to protect children)
- Osborne v. Ohio, 495 U.S. 103 (states may prohibit possession/viewing of child pornography)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (virtual child pornography produced without real children is protected speech; morphing provision not decided)
- United States v. Williams, 553 U.S. 285 (statutory interpretation of "simulated" sexual intercourse in child‑pornography context)
- Miranda v. Arizona, 384 U.S. 436 (Miranda warning requirement)
- United States v. Mecham, 950 F.3d 257 (5th Cir.: morphed child pornography unprotected)
- Doe v. Boland, 698 F.3d 877 (6th Cir.: morphed images using real children’s likenesses are not First Amendment protected)
- United States v. Hotaling, 634 F.3d 725 (2d Cir.: sexually explicit images using faces of actual minors not protected)
- State v. Tooley, 872 N.E.2d 894 (Ohio: morphed images of real children may be criminal)
- McFadden v. State, 67 So. 3d 169 (Ala. Crim. App.: collages of child images are not protected)
- People v. Alexander, 204 Ill. 2d 472 (distinguishes and invalidates statutory language that criminalized images that merely "appear to be" of minors)
- People v. Furby, 138 Ill. 2d 434 (independent corroboration need not match confession in every detail)