Background
Anthony Joshua Love was convicted after a jury trial of two counts of predatory criminal sexual assault of a child and one count of attempted predatory criminal sexual assault of a child involving B.Z., his 9-year-old former stepdaughter. The trial court sentenced him to 90 years in prison (consecutive 45-year sentences for the two predatory assault counts plus a concurrent 12-year sentence for the attempted count).
The alleged incidents occurred on August 11-12, 2023, when B.Z. visited defendant’s apartment for an overnight stay with her siblings. B.Z. testified that she went to defendant’s bedroom on three separate occasions because she could not sleep. She stated that on those occasions, defendant rubbed and touched her vagina—first over her shorts, then over her underwear. B.Z. also testified that defendant attempted to lift her shirt and grabbed her buttocks with his hand inside her pants and underwear.
Defendant appealed on multiple grounds, including that the State presented insufficient evidence to support the predatory sexual assault convictions, that secretly recorded phone calls with the victim’s mother violated Illinois eavesdropping statutes, and that the trial court improperly admitted text messages defendant sent the victim’s mother on the night of the alleged offenses.
The Court’s Holding
The Illinois Appellate Court held that while the evidence was sufficient to support a conviction for the attempted predatory assault, it was insufficient to support convictions for the two predatory criminal sexual assault counts. The court noted that Illinois law requires “skin-to-skin contact” between the defendant’s hand and the victim’s sex organ as an essential element of predatory criminal sexual assault. The undisputed evidence showed only that defendant touched the victim’s vagina over her clothing—through shorts and then underwear—which does not constitute the required skin-to-skin contact.
However, the court found that the evidence was sufficient to support convictions for the lesser-included offense of aggravated criminal sexual abuse under 720 ILCS 5/11-1.60(c)(1)(i), which criminalizes sexual conduct (including touching through clothing) with a victim under 13 years of age when the defendant is 17 or older. The court exercised its authority under Illinois Supreme Court Rule 615(b)(3) to reduce the convictions from the more serious charge to this lesser offense. The court rejected defendant’s other appellate arguments, finding the recorded phone calls admissible under the eavesdropping statute’s fear-of-crime exemption and the text messages properly admitted as probative of intent.
The court affirmed the conviction on the attempted assault count and remanded the case for a new sentencing hearing on the reduced aggravated criminal sexual abuse convictions, eliminating the consecutive 45-year sentences for the predatory assault counts.
Key Takeaways
- Predatory criminal sexual assault of a child requires skin-to-skin contact between the defendant’s hand and the victim’s sex organ; touching over clothing is insufficient for this charge.
- When evidence supports a lesser-included offense but not the charged offense, courts may reduce the conviction to the supported offense without acquitting the defendant.
- Aggravated criminal sexual abuse is a proper lesser-included offense for predatory criminal sexual assault and includes contact through clothing.
- Secretly recorded phone calls may be admissible in criminal cases under the fear-of-crime exemption to Illinois’s eavesdropping statutes when the recording party reasonably feared the other party.
- Evidence of a defendant’s sexual interest in or communications about consenting adults can be probative as to intent in child sexual abuse cases when closely tied in time to the alleged offenses.
Why It Matters
This decision underscores the critical importance of precise statutory language in sexual abuse cases, particularly regarding the physical contact required to constitute different degrees of offense. Because many child sexual abuse statutes impose dramatically different penalties based on whether contact is over or under clothing, the distinction between predatory criminal sexual assault (with 90-year consecutive sentences here) and aggravated criminal sexual abuse (Class 2 felony) is substantial. The ruling reinforces that prosecution must present evidence meeting the statutory definition of the charged offense or risk conviction reduction on appeal.
Additionally, the decision clarifies that Illinois courts will permit the admission of evidence regarding a defendant’s sexual communications or interests in adults when such evidence is closely connected in time to alleged child abuse, provided appropriate limiting instructions are given. The decision further confirms that the fear-of-crime exemption to eavesdropping statutes may justify recording conversations without consent when one party reasonably fears the other, a significant protection for parents or guardians reporting suspected abuse.