In People v. Anderson (1992), 148 Ill.2d 15, the Illinois Supreme Court held that even though the criminal hazing statute listed no mental state, Section 4-3(b) still placed on the State the burden of proving either intent, knowledge, or recklessness. Therefore, it would seem to follow that where no mental state is listed in the creating statute and that offense is not an absolute liability offense, some mental state must be alleged. (But see People v. Gean (1991), 143 Ill.2d 281; People v. Tolliver (1992), 147 Ill.2d 397; and People v. Whitlow (1982), 89 Ill.2d 322 for cases in which the Illinois Supreme Court used Section 4-3(b) to choose one or two, but not all three, of these mental states for particular offenses having no statutorily specified mental state.)

However, note that in People v. Gold (1967), 38 Ill. 2d 510, 232 N.E.2d 702, the Illinois Supreme Court held that "the crime of rape is a general-intent crime and does not require the allegation of a specific mental state." Thereafter, in Public Act 83-1067 (Effective: July 1, 1984) the Illinois Legislature repealed the offenses of Rape (11-1), Deviate Sexual Conduct (11-2), Deviate Sexual Assault (11-11-3), Indecent Liberties With a Child (11-4), and Contributing to the Sexual Delinquency of a Child (11-5). In their place, the Legislature created the offenses of Criminal Sexual Assault (12-13), Aggravated Criminal Sexual Assault (12-14), Criminal Sexual Abuse (12-15), and Aggravated Criminal Sexual Abuse (12-16).

Because of Gold and Public Act 83-1067, an issue has arisen concerning whether it is necessary to allege and prove a mental state under the new offenses created by Public Act 83-1067.

The Second Appellate Court District has ruled that in offenses involving "sexual penetration" for which no mental state is explicitly set forth, a mental state of either intent, knowledge, or recklessness will be implied. People v. Burmeister (2nd Dist. 1986), 147 Ill. App. 3d 218, 497 N.E.2d 1212; People v. Ortiz (2nd Dist. 1987), 155 Ill. App. 3d 786, 508 N.E.2d 490. Further, this Appellate Court held, in a case involving aggravated criminal sexual assault, that an indictment charging an accused is not defective for failure to allege the defendant's mental state where the statute defining the offense charged did not include a specific mental state. People v. Leonard (2nd Dist. 1988) 171 Ill. App. 3d 380, 526 N.E.2d 397.

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Thereafter, the Fourth Appellate Court District, following the reasoning of the Second District, held that aggravated criminal sexual assault requires no proof of a mental state. People v. Casey, (4th Dist. 1989), 179 Ill. App. 3d 737, 534 N.E.2d 1036; People v. Myers (4th Dist. 1989), 181 Ill. App. 3d 769, 537 N.E.2d 1089; People v. Terry (4th Dist. 1989) 177 Ill. App. 3d 532 N.E.2d 568. Further, along this same line of reasoning, the Fourth District, relying on these cases, has ruled that in robbery and armed robbery (both general intent offenses) a mental state on the part of the defendant was not an essential element of these offenses and may be omitted from the jury instructions. People v. Talley (4th Dist. 1988), 177 Ill. App. 3d 170, 531 N.E.2d 1139; People v. Avant (4th Dist. 1989), 178 Ill. App. 3d 139, 532 N.E.2d 1141.

Finally, in People v. Avila (1st Dist. 1989), 180 Ill. App. 3d 345, 535 N.E.2d 1027, the First District Appellate Court, in a cause involving criminal sexual assault, cited Gold and Ortiz and stated almost as an afterthought that, "(i)n addition, acts of sexual penetration involve general intent and do not require an allegation of a specific mental state from the nature of the act."

However, the Illinois Supreme Court in People v. Jones (1992) 149 Ill 2d 288 held that "either intent, knowledge or recklessness is an element of robbery even though the statutory definition of robbery does not expressly set forth a mental state." Thus, the issue of whether an indictment or information charging a robbery like offense must state on its face the type of mental state possessed by the defendant while he or she committed the charged offenses seems to have been answered.

Concerning those offenses involving sexual penetration (or any other general intent offense), uncertainty still exists. As you will note, in those complaints involving sexual penetration, a mental state on the part of the defendant has been omitted. The Illinois Pattern Jury Instructions (Criminal) do not contain such allegations of a mental state except for those dealing with predatory criminal sexual assault of a child. Those instructions do now contain such allegations. Concerning the other sex offenses, to include those allegations in your charging instrument without a similar jury instruction might invite confusion. However, until the Illinois Supreme Court rules on this issue concerning these offenses, you must, depending upon the jurisdiction in which you are located, decide whether or not to allege and prove a mental state on the part of the defendant in cases involving general intent offenses.