text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT GAINES, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—1125
    Opinion filed September 30, 1991.

      Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Tyra H. Taylor, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant Robert Gaines was charged by indictment with aggravated criminal sexual assault, armed violence, criminal sexual assault, aggravated kidnapping and kidnapping. Prior to defendant’s trial he filed a petition to quash arrest and suppress evidence. The court denied that petition.

Defendant’s first trial resulted in a “hung jury.” He was subsequently tried by a second jury and convicted of two counts of aggravated criminal sexual assault and aggravated kidnapping. (Ill. Rev. Stat. 1985, ch. 38, pars. 10—2(a), 12—14(a)(1), (a)(2).) Defendant was sentenced to serve 15 years in prison for one count of aggravated criminal sexual assault and a concurrent eight years for aggravated kidnapping. Defendant was not sentenced for the second aggravated criminal sexual assault conviction.

On appeal defendant argues that: (1) the trial court erred in denying his petition to quash arrest and suppress evidence; and (2) that under the principle of “one act, one crime,” the court improperly sentenced him for both aggravated criminal sexual assault and aggravated kidnapping.

At the evidentiary hearing on defendant’s motion to quash arrest and suppress statements, defendant’s mother, Rebecca Gaines, testified that about 9 p.m. on September 21, 1985, a Chicago police officer came to her door and asked whether anyone named “Grimes” lived at that address. She replied “no,” then the officer asked whether the owner of the car parked in the yard lived at that address. She responded “yes” and sent her grandson to get the defendant. Before defendant reached the open front door, Ms. Gaines advised defendant that the officer wanted to speak with him. Ms. Gaines stated that at the door defendant asked the officer “what is up” and told the officer that he owned the Toyota parked in the yard. The officer then told defendant to “step outside,” which he did. Ms. Gaines testified that the officer then immediately suggested that he and defendant step inside in order to avoid “making a scene.”

Ms. Gaines testified that defendant and the officer walked inside the house and left through the back door. When defendant stepped outside, there were two policemen there. Ms. Gaines stated that she followed the policemen and defendant outside and into the yard, where the officer searched the interior and trunk of the car. The officer lifted defendant’s briefcase and a bottle of liquid detergent from the trunk. Ms. Gaines described her home and stated that a four-foot wire fence enclosed the yard. She did not remember whether the gate to the fence was opened or closed before the police arrived.

Defendant’s sister, Karen Gaines, testified that on the evening of the incident she was present at the house when defendant was arrested. She stated that after hearing a voice calling for “Grimes,” she walked downstairs where a police officer and Ms. Gaines were talking in the kitchen. Karen went outside the house, where she saw several police officers searching defendant’s car. Karen stated that defendant was handcuffed after the officers searched the trunk.

Defendant testified at the hearing on the motion to quash arrest and suppress evidence that about 4 p.m. on September 21, 1985, he was in the basement of his home when his mother called him to come upstairs because the police wanted to see him. Defendant stated that he walked to the front door, asked “what is happening,” and the officer told him to “step outside.” He went outside, and the officer asked him whether he owned the Toyota parked in the yard and whether his name was “Grimes.” He told the officer that he owned the car, but that his name was not “Grimes.” He stated that the officer then said “Let’s step back into the house. Let’s not make a scene.” Defendant testified that he and the officers walked out the back door of the house and that one officer asked for the keys to his car.

Officer Curd testified that on the day of the incident, Sergeant Giles informed him that the victim had been sexually assaulted and that the offender drove a beige Toyota with license plate number FTC 552. Giles also gave Curd a description of the offender.

Officer Curd testified further that he went to the address registered to the license plate number, knocked on the door and observed the vehicle described by Giles parked in the yard. Ms. Gaines answered the door, and Curd asked her if she owned the car parked in the yard. Curd testified that Ms. Gaines stated that the car belonged to her son. Curd asked to speak with defendant and explained to Ms. Gaines that he was investigating a sexual assault. Ms. Gaines sent a child to get defendant, then asked Curd to step inside the house. Curd and Giles entered the house and Curd then asked defendant if his car was parked outside and whether anyone else drove it. Defendant answered “yes” and “no,” respectively, then they walked into the backyard where the car was parked. Curd further testified that once in the backyard, Giles asked defendant if they could search the car and defendant replied it was fine with him. After searching the trunk of the car, Curd discovered a bottle of Solo laundry detergent, and defendant was then arrested. Curd stated that he did not have a search or arrest warrant and that defendant willingly gave him the keys to the car. Curd drove defendant’s car to the police station after defendant was arrested.

Detective Egan testified that about 9:45 p.m. on September 21, 1985, he advised defendant of his Miranda rights in the presence of Officers Vimarco and Peak, and that defendant stated that he understood his rights. Egan interviewed both defendant and the victim. He testified that the victim identified defendant in the lineup, and that following the lineup, he obtained defendant’s written consent to search his car, which had been brought to the station. Egan stated that he removed the bottle of Solo detergent from the car.

Sergeant Giles testified at the pretrial hearing that about 45 minutes prior to arriving at defendant’s home, he received a flash message that a sexual assault had occurred. The offender was described as a black male, age 26, 5 feet 6 inches and 140 pounds. The message indicated that the offender used a knife and drove a beige Toyota, license plate number FTC 552. He stated that he and another tactical unit responded to the message. The officers drove to defendant’s home, displayed their badges to Ms. Gaines, then asked her who owned the Toyota parked in the backyard. Giles stated that Ms. Gaines allowed him and Curd into the house, then called for defendant. Giles testified that when defendant appeared, they asked him if he owned the Toyota in the backyard, and defendant replied “yes.” He testified that defendant then voluntarily gave the officers the keys to his car and gave permission for a search. Giles testified further that defendant was not arrested in the house, nor was he handcuffed. He stated that he searched the car and found a bottle of Solo liquid detergent in the trunk then arrested and handcuffed defendant. Defendant was taken to the police station and advised of his Miranda rights.

At the conclusion of the evidence on the motion to quash arrest and suppress evidence, the court stated that the burden of proving the allegations in the petition was on the defendant. The court found that there was no suggestive identification, even though defendant never raised this issue orally or in his petition, and that defendant was properly identified as the offender following a lawful arrest. The court, however, found that any statements which defendant made in the house or evidence seized from the house was inadmissible. The court further found that the Solo detergent seized from defendant’s car was admissible because exigent circumstances were present and the officers were in “hot pursuit” of a suspected rapist. The court denied the petition in part and granted it in part.

Defendant’s first trial resulted in a “hung jury.” At the second trial the victim, J.B., testified that on September 21, 1985, she washed her clothes at a laundromat in the Roseland Plaza. She then packed her clothes along with the Solo detergent at about 7:15 p.m. and walked to a bus stop. Defendant drove by in a four-door beige Toyota and told her his name was “James” and asked her how far she was going. The victim told defendant her name and that she was going to Altgeld Gardens. Defendant offered her a ride and told her that he was also headed to Altgeld Gardens, but initially she declined the offer. However, because it was raining, she eventually accepted the ride with defendant. Defendant placed the victim’s clothes and the Solo detergent in the trunk of his car and began driving in a direction not leading to her home. He explained to the victim that he planned to take the expressway to her home instead of the street. Defendant drove to Doty Road, and the victim again asked him where he was going. Defendant stopped the car and instructed the victim to “suck his dick.” The victim testified that she refused and defendant pulled out a knife and placed it at her throat. He then drove to a McDonald’s parking lot and parked. He unzipped his pants, took out his penis and forced the victim to perform fellatio. Thereafter, defendant placed the knife at the victim’s side, forced her to have sexual intercourse and ejaculated in her vagina.

Defendant refused to allow the victim to remove a towel from the trunk to clean herself, but gave her napkins from his glove compartment. She used the napkins and discarded them out the window. Defendant then drove the victim back to Doty Road, removed her clothes from his trunk and left her standing. The victim memorized the license plate number as FTC 552. The victim walked down the street, flagged down a cab and told the driver she had been raped. The cab driver then flagged down a police car.

The victim told the police officers that she had been raped and gave them a description of the offender. She described the offender as a black male, 5 feet 6 inches, 140 pounds, with a mustache and a scar over his right eye. The offender wore dark pants and a leather or vinyl jacket. The victim was taken to a hospital where an examination of her mouth and vagina tested positive for sperm. After the medical examination, she was taken to the police station, where she viewed a lineup. She identified the defendant in the lineup as the offender. Following the lineup, she was taken to the police parking lot, where she identified defendant’s car as the one in which the offense was committed, and identified the Solo detergent. The victim also identified defendant at trial.

Rick Roberts, a criminologist with the Chicago police department, testified that the vaginal smear from the victim tested positive for sperm. The napkins found at the crime scene also tested positive for sperm and contained pubic hairs similar to those of the victim.

Detective Egan’s trial testimony was substantially similar to his testimony at the hearing on the pretrial motion.

Officer Howard testified that on the day of the incident he was flagged down by a cab driver and the victim. Howard testified that the victim complained that she had been sexually assaulted and gave him a full description of the offender, his car and license plate number. Howard radioed a “flash message” and completed a registration check on the license plate number. The car was jointly registered to defendant and one Ms. Varnado. Howard gave the registration address to Officers Peak and Vimarco.

' Officer Peak testified that he and Officers Giles, Curd and Mc-Keaver went to the address they obtained from the license number registration. Peak waited by the south side of defendant’s home, where he saw a car in the yard which fit the description given by the victim. Another officer knocked on the front door. Peak testified that about six minutes later defendant and other officers walked to the car. The trunk was opened, and Peak saw a bottle of Solo detergent inside. Peak testified that defendant and his car were driven to the police station. Peak sent McKeaver and Curd back to the crime scene to locate the discarded napkins, which they did.

Officer Curd testified at trial that on the night of September 21, 1985, he went to defendant’s home and defendant’s mother answered the front door. He asked whether the owner of the car parked in the yard was there and eventually defendant came to the door. Curd stated that defendant voluntarily walked with him to the car, that the car was searched and a bottle of Solo detergent was discovered in the trunk, but not removed. Defendant was then handcuffed.

Assistant State’s Attorney Michael Kelly testified that on the day of the incident he and his partner, LuAnn Rodi, interviewed the victim at the police station. Following the interview, Kelly advised defendant of his Miranda rights and interviewed him. Kelly testified that defendant waived his rights and agreed to speak with Kelly and Rodi. Kelly stated that defendant denied all knowledge of the incident and stated that he had watched television on the night of the incident. Kelly stated that he asked defendant what really happened, and defendant said he was ready to tell the truth.

Kelly testified further that defendant told him that he saw the victim waiting for the bus and stopped to ask if she wanted a ride. Eventually the victim accepted his offer and he drove her to a nearby McDonald’s parking lot and asked her to have sex with him. When the victim refused he pulled a knife out and forced her mouth onto his penis. Shortly thereafter he forced her to have sexual intercourse. Once they completed this act he gave her napkins which she used then discarded out the window. He drove a short distance, then told her to leave his car. After giving this statement, defendant agreed to sign a written statement.

Defendant’s mother, Rebecca Gaines, testified that about 8:30 p.m. on September 21, 1985, two police officers came to her door and asked whether a “Grimes” lived there. She told them “no.” The officers then asked whether the owner of the Toyota parked in the yard lived at her address, and she told them “yes” and then sent for defendant. After coming to the door, defendant and the officers walked through the house and out the back door to this car. Ms. Gaines followed them outside and saw the officers search defendant’s car trunk and remove a bottle of Solo detergent. She testified that defendant was handcuffed after the trunk was opened.

Defendant’s fiancee, Larita Varnado, testified that she and defendant were together all day on September 21, 1985. She claimed that they washed clothes, went shopping and returned home about 2:30 p.m. She testified that they listened to the radio and watched television until 9 p.m. She stated that she heard voices at the back door and went outside, where she saw the police open the trunk, search defendant’s car and handcuff him. She also stated that the police picked up the Solo detergent and kept it in their possession. She claimed that she purchased the detergent. She further stated that she did not see defendant’s mother outside during this time.

Defendant’s trial testimony was very similar to his testimony at the pretrial hearing. He further testified that he was interviewed by three persons and a document was placed before him to sign. He stated that he refused to sign it, and that one police officer kicked him in the chest and another hit him in the eye. He claimed that he then signed the paper, but denied ever having made the statements it contained. He alleged that the officers did not conduct a lineup, that no fingerprints or photographs were taken that night, and that he had never seen Detective Egan before the trial. He also claimed that Kelly and Rodi never identified themselves as assistant State’s Attorneys, and that he was not advised of his Miranda rights.

At the conclusion of the trial, the jury found defendant guilty of two counts of aggravated criminal sexual assault and aggravated kidnapping. The court sentenced defendant to 15 years in prison on only one count of aggravated criminal sexual assault, and an eight-year concurrent term for aggravated kidnapping.

Defendant first argues that the trial court erred in denying his petition to quash arrest and suppress evidence. Specifically, he argues that the police violated Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371; that the seizure of evidence from his car trunk was unconstitutional; and that the court erred in placing the burden of persuasion on him.

In Payton, the Supreme Court held that the United States Constitution in general prohibits police officers from making warrant-less, nonexigent entries into a private residence to make an arrest. However, the fourth amendment does not prohibit officers from entering a home without a warrant if exigent or compelling circumstances justify the entry. (People v. Foskey (1990), 136 Ill. 2d 66, 554 N.E.2d 192.) We consider first whether the trial court erred in determining that exigent circumstances existed so as to justify the warrantless arrest.

The trial court here determined that defendant was arrested when he came to the door and made statements without being advised of his Miranda rights. The court held that any statements made by defendant while he was in the house, and any evidence seized from inside the house, were inadmissible. However, the court held that the Solo detergent seized from the vehicle was admissible because the officers were in “hot pursuit” of a suspected rapist when they obtained the evidence.

While no list of factors constituting exigent circumstances is exhaustive, the Illinois Supreme Court has set out several factors which may be taken into account in assessing exigency in a particular situation: (1) whether the offense under investigation was recently committed; (2) whether there was any deliberate or unjustifiable delay of the officers during which time a warrant could have been obtained; (3) whether a grave offense is involved, particularly one of violence; (4) whether the suspect was reasonably believed to be armed; (5) whether the police officers were acting upon a clear showing of probable cause; (6) whether there was a likelihood that the suspect would have escaped if not swiftly apprehended; (7) whether there was strong reason to believe that the suspect was on the premises; and (8) whether the police entry, though nonconsensual, was made peaceably. People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677.

In this case, about 45 minutes after Officer Giles was notified of the assault, he and Officer Curd went to defendant’s home. During the interim the officers traced the license plate number given to them by the victim to determine the name and address of the person to whom the car was registered. Officer Curd testified that once he arrived at defendant’s home he observed the car described by the victim parked in the yard and was informed that the owner of the car lived there. Curd testified that once defendant came to the door, he asked him to step outside. Defendant then voluntarily took the officers through the house and into the yard where the car was parked.

Although there is conflicting testimony as to whether defendant was outside the home when he talked with the officers, there is no allegation that the officers’ entry into the home was the result of force or coercion. The offense committed by defendant was one of violence, and the officers had knowledge that he used a knife in his sexual assault of the victim. Further, defendant used a vehicle in the commission of the offense and it was reasonable to believe that he would flee if not apprehended. Also, the delay between the time that the officers were notified of the assault and the time they arrived at defendant’s home was justified, considering that they first traced the license plate number to obtain the name and address of the vehicle’s owner. Moreover, the court determined that there was no Payton issue because the police did not enter the home to arrest defendant.

In determining whether the police acted reasonably, the court must look to the totality of the circumstances confronting the officers at the time the entry was made. (People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369.) The circumstances must militate against delay and justify the officers’ decision to proceed without a warrant. (People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543.) The guiding principle in such cases is reasonableness, and each case must be decided on its own facts. People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677.

In this case, the court properly determined that the police officers had probable cause to arrest defendant. The arresting officers received a “flash message” that a sexual assault had occurred and were given a description of the suspect, as well as the license plate number of the car he drove. The officers were also advised that the suspect committed the assault while using the knife. In People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056, the arresting officers had a general description of the suspect, a description of the car in which the assault took place and the car’s license plate number when they arrested the suspect without a warrant. The court held that there was probable cause to arrest even though the car described was not the car in which the defendant was subsequently arrested. Walls, 87 Ill. App. 3d at 263.

The instant case presents stronger facts than Walls. The officers here had a description of defendant, the car he drove, the license plate number, and saw the car parked at defendant’s home. Further, once the officers arrived at defendant’s home, defendant came to the door, asked “what’s up” and then stepped outside willingly. These facts are similar to People v. Graves (1985), 135 Ill. App. 3d 727, 482 N.E.2d 223, where the suspect came to the doorway expecting a friend and not knowing the persons knocking on his door were police officers. The suspect lost the privacy he could have expected inside his home by coming to the door.

Similarly, the instant case is stronger than Graves. In this case, defendant came to the door with the knowledge that the police officers were waiting for him. Further, as in Graves, there was no improper conduct by law enforcement officers. The court determined that there was probable cause for defendant’s arrest, and the court’s finding was reasonably supported by the facts.

Defendant’s reliance on Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1321, is misplaced. That case involved the seizure of property without a warrant from a suspect’s home when that suspect was not present. Likewise, Riddick v. New York (1979), 445 U.S. 930, 63 L. Ed. 2d 639, 100 S. Ct. 1321, is also distinguishable where the suspect did not consent to the arresting officer’s entry into his home, nor did he appear in a public place such as his doorway.

In People v. Wormack (1980), 91 Ill. App. 3d 169, 414 N.E.2d 177, the officers forced entry through a locked door. This is distinguishable from the instant case, where the entry was consensual. Also, the offenses in Wormack were robbery and burglary, less violent than aggravated criminal sexual assault and aggravated kidnapping. Further, the arrest occurred a day after the crime, and there was no strong probability that the suspect would likely be in the building wherein he was arrested.

For the foregoing reasons, we find that the arrest of defendant did not violate Payton.

Defendant also argues that the trial court erred in determining that the admission of the Solo detergent and his confession into evidence was proper. The police must obtain a search warrant prior to searching a motor vehicle, unless the circumstances fall within an exception to the warrant requirement. A search warrant need not be obtained if: (1) the police have probable cause to believe that the vehicle was used in or contains evidence of a crime; (2) the police obtain valid consent to the search; (3) the police search the vehicle incident to a lawful arrest; or (4) the vehicle is lawfully impounded and an inventory search results. People v. Kelk (1991), 208 Ill. App. 3d 313, 566 N.E.2d 835.

In this case, the court held that the police officers had probable cause to arrest the defendant. The court reasoned that the victim complained that she had been sexually assaulted and gave a description of the offender and the automobile. She also gave the license plate number of the automobile in which the offense took place. The court further held that no Payton issue existed because exigent circumstances were present.

We find that the trial court’s determination that there was probable cause and that exigent circumstances existed supported defendant’s warrantless arrest. The officers went to defendant’s home about 45 minutes after the victim complained of the offense. There they saw the vehicle she described parked in the yard. The officers knew that the offense took place in the car and that a bottle of Solo detergent was left inside the trunk by the victim. They also knew that there was a co-owner who could have driven the car away.

Furthermore, where probable cause has been determined, a valid search not incidental to an arrest may be made without a warrant. (People v. Jones (1967), 38 Ill. 2d 427, 433, 231 N.E.2d 580.) In Jones, the police chased a vehicle driven by defendant that was used in a burglary. The vehicle crashed and defendant abandoned it. He was later arrested while walking down the highway. The keys fitting the trunk of the vehicle were found on defendant’s person, and the trunk searched without a warrant. Fifty suits were found inside the trunk of the vehicle. The court stated that the search of the vehicle’s trunk was valid notwithstanding the fact that it was at a time and place remote from where defendant was arrested. Jones, 38 Ill. 2d at 434.

In this case, the court determined that the defendant was arrested when he voluntarily presented himself at the front door of his home. The vehicle was subsequently searched when the officers went outside his home. Although no search warrant was obtained and defendant did not consent to a search of the vehicle, the court held that under People v. Drummond (1981), 103 Ill. App. 3d 621, 431 N.E.2d 1089, the search was reasonable.

We find that the court’s decision was not against the manifest weight of the evidence. Therefore, the court did not err in admitting the Solo detergent into evidence.

Having determined that the trial court properly found that defendant was arrested at the front door of his home, defendant’s later statement at the station admitting to the crime was also properly admitted into evidence.

Defendant further argues that the trial court improperly placed the burden of persuasion on him. At a hearing on a motion to suppress where a defendant raises the allegation that the search and seizure were unlawful, the burden is on the accused to prove that allegation. (Ill. Rev. Stat. 1987, ch. 38, par. 114—12(b).) The State’s burden to proceed forward occurs only when the defendant proves a prima facie case supporting his motion. People v. Burton (1985), 131 Ill. App. 3d 153, 475 N.E.2d 583.

Defendant’s reliance upon People v. Talley (1975), 34 Ill. App. 3d 506, 340 N.E.2d 167, is misplaced. In Talley, the State failed to meet its burden of going forward after the defendant established his prima facie case. Further, the police in Talley did not have sufficient evidence to warrant a search, while the officers in the instant case had probable cause to arrest the defendant.

For all the foregoing reasons, we hold that the trial court’s decision on defendant’s motion to quash arrest and suppress evidence was not manifestly erroneous.

Defendant finally argues that he was improperly convicted on both aggravated criminal sexual assault and aggravated kidnapping. He asserts that under the doctrine of “one act, one crime,” separate verdicts for aggravated criminal sexual assault and aggravated kidnapping were improper.

Following the trial, the jury found defendant guilty of two counts of aggravated criminal sexual assault (use of a dangerous weapon: to wit, a knife, and during the commission of aggravated kidnapping) and a separate offense of aggravated kidnapping. The aggravating factor for the kidnapping charge was that defendant committed aggravated criminal sexual assault. The court sentenced defendant for only one aggravated criminal sexual assault count (use of a deadly weapon) and defendant was also convicted of aggravated kidnapping.

In People v. Rodarte (1989), 190 Ill. App. 3d 992, 547 N.E.2d 1256, this court upheld defendant’s sentences for four counts of aggravated criminal sexual assault and aggravated battery. In Rodarte, the defendant went to the victim’s home to rest because he had been drinking. Once inside her bedroom he gagged the victim, tied her hands, then placed his mouth over her breast and inserted his tongue and fingers into the victim’s vagina. He later forced the victim to leave the apartment building and pushed her into a garage dumpster. In following the conclusion reached in the Illinois Supreme Court case, People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802, the appellate court held that a defendant who commits mutiple acts of equal value, i.e., Class X felonies, may be prosecuted and convicted for each act.

In a more recent case, People v. Casiano (1991), 212 Ill. App. 3d 680, 571 N.E.2d 742, the court held that the defendant was properly convicted of both kidnapping and criminal sexual assault. In that case, the victim waited for a bus and began walking down a Chicago street when the defendant approached her, stuck a sharp object into her back, and forced her to walk with him to his apartment about IV2 blocks away. At knifepoint, he later undressed the victim, raped and sodomized her. The court found that defendant used force to carry the victim from one place to another, with the intent to confine her secretly against her will. Thus, the court convicted defendant of one count of kidnapping. The court also found that defendant committed criminal sexual assault based on the forced sexual intercourse and sodomy. (Casiano, 212 Ill. App. 3d at 685.) Further, the criminal sexual assault was aggravated by the kidnapping.

Here, defendant kidnapped the victim, drove her to a parking lot and forced her to perform fellatio. He then, at knifepoint, forced the victim to have sexual intercourse with him. Aggravated criminal sexual assault and aggravated kidnapping are two distinct offenses requiring different elements of proof. Aggravated criminal sexual assault requires proof of sexual penetration by force and the display, threat of use or the actual use of a dangerous weapon, or bodily harm to the victim. (Ill. Rev. Stat. 1985, ch. 38, pars. 12—14(a)(1), (a)(2).) Aggravated kidnapping occurs when there is a kidnapping and the defendant inflicts either great bodily harm, criminal sexual assault, robbery, or aggravated criminal sexual assault upon the victim. Ill. Rev. Stat. 1985, ch. 38, par. 10—2(a).

In this case, as in Casiano, the defendant moved the victim from the street to a parking lot with the intent to secretly confine her against her will. He later engaged in several acts of criminal sexual assault upon the victim while displaying a knife. Each act of rape regardless of how it is committed is punishable, since rape is unlike other offenses in that with each act, the victim’s psychological constitution and most intimate part of her being have been violently invaded. (Rodarte, 190 Ill. App. 3d at 1003.) Therefore, multiple convictions with concurrent sentences are proper. People v. Brown (1991), 214 Ill. App. 3d 836, 574 N.E.2d 190.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE CERDA JUSTICE GREIMAN,

license: Public Domain

text:
      In re MARRIAGE OF SHERRY KANTAR, Petitioner-Appellant, and MICHAEL KANTAR, Respondent and Counterpetitioner (Albert Brooks Friedman, Ltd., Respondent-Appellee).
    First District (3rd Division)
    No. 1—89—3289
    Opinion filed July 10, 1991.
    Rehearing denied November 5, 1991.

      GREIMAN, J., specially concurring.

      Janet Rubel, of Northbrook, for appellant.
    David M. Goldman, of Albert Brooks Friedman, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Petitioner, Sherry Kantar, appeals from an order granting her former divorce attorney’s motion for summary judgment and denying her section 2—1401 petition (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) and her request for a hearing on attorney fees. She argues that: (1) there were genuine issues of material fact precluding entry of summary judgment; (2) she exercised due diligence in filing her section 2—1401 petition; (3) it was error not to grant the section 2—1401 petition, whether or not she exercised due diligence, because she alleged sexual misconduct by her divorce attorney and that the attorney fees were obtained as a result of undue influence, breach of fiduciary duty, coercion, duress, and fraud; (4) she had an absolute right to a hearing on the attorney fees awarded to her divorce attorney because she questioned the reasonableness of the fees; and (5) her divorce attorney breached a fiduciary duty by engaging in a sexual relationship with her while representing her.

Petitioner’s attorney, Albert Brooks Friedman, Ltd. (Friedman, Ltd.), filed a petition for dissolution of marriage on her behalf on May 24, 1985. A prove up hearing was held on March 31, 1988, and petitioner’s attorney, David M. Goldman, who was an attorney with Friedman, Ltd., asked petitioner the following questions concerning attorney fees and was given the following responses:

“Q. You also agreed that you each will be responsible for your own attorney’s fees; is that correct?
A. Yes.
Q. You have agreed today that you will be responsible for the sum of Fifteen Thousand Five Hundred Dollars ($15,500.00) to Albert Brooks Friedman, Ltd.?
A. Yes.
Q. You also agreed that the judgment will be entered against you today in that amount in favor of Albert Brooks Friedman, Ltd.?
A. Yes.
Q. Prior to agreeing to, you had an opportunity to discuss the attorney’s fees with myself and Mr. Friedman in his office; is that correct?
A. Yes.
Q. We gave you an itemized statement?
A. Yes.
Q. You have had an opportunity to review that statement?
A. Yes.
Q. Do you believe those fees incurred in this matter were fair and reasonable?
A. Yes.
Q. You understand that you have a right to have a hearing on your attorney’s fees; is that correct?
A. Yes.
Q. Knowing you have a right to a hearing on your attorney’s fees, you are agreeing to waive that right and have the judgment entered here today; is that correct?
A. Yes.
* * *
Q. Throughout the proceedings two lawyers from our office have represented you, Mr. Friedman and myself; is that correct?
A. Yes.
Q. You are satisfied with our representation; is that correct?
A. Yes.
* * *
Q. Do you have any questions about this agreement at this time?
A. No.”

On the same date, judgment was entered in favor of Friedman, Ltd., for $15,500.

The settlement agreement provided that each party was to be responsible for his own attorney fees and that the petitioner was responsible for the payment of the balance of her attorney fees of $15,500 to Friedman, Ltd. A judgment of dissolution of the marriage was entered on April 5, 1988.

On June 17, 1988, Michael Kantar, petitioner’s former husband, filed a petition for rule to show cause alleging that petitioner violated the judgment of dissolution. A section 2—1401 petition and a supporting affidavit were filed on June 21, 1988, by petitioner’s new attorney, Grace Wein. A copy of the petition was mailed to, but not served upon, Friedman, Ltd., on the same date. The notice of motion stated that on July 8, 1988, petitioner would present both her response to the petition for rule to show cause and her section 2—1401 petition. Also on June 21, 1988, Wein filed an appearance and petitioner’s response to Michael Kantar’s petition for rule to show cause.

On July 1, 1988, Friedman, Ltd., moved for, and was given, leave to withdraw as petitioner’s attorney on the basis of irreconcilable differences between it and petitioner as to the conduct of the litigation. Petitioner argues on appeal that Friedman, Ltd., was not given leave to withdraw, but the order appears in the supplemental record. Also on July 1, 1988, Michael Kantar filed a petition for rule to show cause and a petition for sanctions and attorney fees. On August 3, 1988, petitioner filed an emergency motion to reschedule the August 5, 1988, hearing, which apparently was related to the section 2 — 1401 petition because notice of the emergency motion was given to Friedman, Ltd., in addition to Michael Kantar. On August 3, 1988, Michael Kantar filed a motion to strike and dismiss the section 2 — 1401 petition and a motion to strike petitioner’s supporting affidavit. The August 5, 1988, hearing date was continued to August 19, 1988. On August 10, 1988, Michael Kantar filed a petition for rule to show cause to be heard on August 19, 1988. On August 22, 1988, the hearing on the petitions for rule to show cause was continued to August 30,1988.

On September 1, 1988, Michael Kantar’s petition for rule to show cause, petition for sanctions, and petition to strike were dismissed and withdrawn with prejudice, and petitioner’s section 2 — 1401 petition was dismissed with prejudice and withdrawn only as against Michael Kantar. On the same date, petitioner was given leave until November 1, 1988, to file an amended section 2 — 1401 petition, attorney Wein was given leave to withdraw, and a new attorney, Glen Kaufman, was given leave to file an appearance for petitioner.

Petitioner filed a pro se amended section 2 — 1401 petition on October 31, 1988, and another supporting affidavit on March 10, 1989. A notice of filing by Kaufman stated that on March 10, 1989, petitioner filed a “supplemental petition to vacate,” but the petition does not appear in the record. On March 13, 1989, petitioner filed a motion to compel the appearance of David Goldman at an April 14, 1989, hearing, and filed a notice to take Friedman’s deposition on March 20, 1989. On March 17, 1989, Friedman, Ltd., filed a motion to strike the supplemental petition to vacate which argued, in part, that no due diligence had been shown and that the original petition had not been served upon the law firm.

On May 15, 1989, petitioner filed a consolidated amended and supplemental petition to vacate. A copy was mailed to Friedman, Ltd. In part she alleged that: (1) she never willingly or knowingly agreed to pay to Friedman, Ltd., $15,500 for attorney fees; (2) the agreement to pay the attorney fees was procured by undue influence, coercion, misrepresentation, and intimidation; (3) the request for $15,500 in additional attomey fees was unconscionable and unfair; (4) Friedman, Ltd., repeatedly threatened to withdraw from representation if petitioner did not acquiesce to the demands of her husband; (5) the attorney fees were unreasonable and arbitrary without any basis in the amount of work performed; (6) a few days prior to the prove up, an attorney from Friedman, Ltd., stated to petitioner that if she did not sign the judgment for dissolution, she would lose everything and that the result could not be rectified; (7) on the day of the signing of the judgment for dissolution, petitioner had been in court for approximately six hours during which time an attorney from Friedman, Ltd., stated to her that she would have to negotiate her case on her own if she did not agree to its terms and that the bill would remain the same nevertheless; (8) Goldman told her on the day of the prove up that she could not get divorced unless she agreed to pay the fee; (9) she and Friedman engaged in sexual relations at least 20 times prior to the entry of the judgment of dissolution; (10) the billing statement contained fraudulent and untruthful entries about the time spent; (11) legal fees were billed for time during which petitioner and Friedman engaged in sexual relations and for personal telephone calls to her; (12) after she requested an itemized billing statement, Friedman stated that the fee would be $15,000 regardless of whether she received a statement; (13) the billing statement was handed to petitioner 10 minutes prior to the prove up hearing; (14) although requested to do so, neither Friedman nor anyone from his firm ever discussed the accuracy or legitimacy of the fee request; (15) as a result of being seduced, she was incapable of making a meaningful decision with regard to the payment of attorney fees on the day of the prove up; (16) at the time of the prove up, she was under extreme duress as a result of her relationship with Friedman; and (17) she exercised due diligence by filing the first petition within 60 days of the entry of the judgment of dissolution. Petitioner’s supporting affidavit was filed with the petition. The affidavit and petition did not repeat the allegations contained in the affidavit supporting the first petition that on April 13, 1988, petitioner spoke to Friedman and indicated her dissatisfaction with the settlement and that Friedman refused to take any legal action.

On June 9, 1989, Friedman, Ltd., filed a motion for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005). It argued that: (1) petitioner did not exercise due diligence in presenting the petition; and (2) the petition did not allege why petitioner did not move within 30 days to vacate the judgment. Friedman, Ltd., attached to a subsequent pleading a copy of a statement for its services dated July 18, 1986, for $5,377.50, less a $2,000 retainer fee. In addition, attached was a copy of a March 31, 1988, itemized statement of services rendered from January 16, 1985, through March 31, 1988, which stated a total of $22,150.50 that was reduced by a retainer fee of $4,500 which was further adjusted “per agreement” to $15,500. From this latter amount, deducted were a $1,615 payment made March 31, 1988, and a $50 delivery charge, and the final balance was $13,835.

The motion for summary judgment was granted on September 28, 1989. On October 10, 1989, petitioner filed a motion to reconsider. On October 26, 1989, petitioner filed a petition for a hearing to determine the appropriateness of the attorney fees. On October 30, 1989, both motions were denied and an order was entered that petitioner owed to Friedman, Ltd., $13,835 plus 9% interest for a total of $16,392.71.

Respondent argues on appeal that petitioner never exercised due diligence in filing her section 2—1401 petition, that the first section 2—1401 petition was not served as required by Supreme Court Rules 105 (134 Ill. 2d R. 105) and 106 (134 Ill. 2d R. 106), and that because service was not achieved until February 24, 1989, the original and amended petitions were nullities until that date.

In the motion to strike the petition to vacate, Friedman, Ltd., argued the merits by stating that petitioner’s allegations of sexual relations were a scurrilous attack and that many allegations were irrelevant, nonsensical, conclusory, and contained no information. The motion to strike further stated there was no allegation made that $2,000 paid by petitioner was not properly credited to her account.

We hold that any objection to service of the section 2—1401 petition was waived by Friedman, Ltd.’s response to the merits of the petition in its motion to strike. See Slade v. Bowman (1977), 49 Ill. App. 3d 242, 246, 364 N.E.2d 922, 925 (defects of service of petition to vacate were waived when defendant generally appeared to argue the motion).

A section 2—1401 petition must set forth specific factual allegations supporting these elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim to the circuit court in the original action; and (3) due diligence in filing the petition. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386.) The following are the relevant dates in determining if petitioner exercised due diligence in filing her petition: (1) the prove up hearing was held on March 31,1988; (2) the judgment of dissolution was entered on April 5, 1988; (3) petitioner indicated to Friedman her dissatisfaction with the settlement and Friedman refused to take action on April 13, 1988; (4) the first section 2—1401 petition was filed on June 21, 1988; and (5) Friedman, Ltd., moved for leave to withdraw as petitioner’s attorney, and leave was granted, on July 1, 1988.

None of the section 2 — 1401 petitions specifically alleged how petitioner exercised due diligence in filing the petition about 11 weeks after the judgment was entered, but petitioner alleged that eight days after the judgment was entered, she discussed with Friedman her dissatisfaction with the judgment. The record shows that after he refused to take legal action, she hired a new attorney within 10 weeks at the latest because that is how much later the section 2 — 1401 petition was filed.

We hold that petitioner exercised due diligence in filing the section 2—1401 petition because she had to hire a new attorney in order to file a petition alleging Friedman, Ltd.’s wrongful conduct in connection with the attorney fees judgment sought to be vacated. See Chastain v. Chastain (1986), 149 Ill. App. 3d 579, 582, 500 N.E.2d 998, 1000 (due diligence exercised where section 2—1401 petition was filed three months after judgment and where petitioner changed attorneys before filing the petition); In re Marriage of Pagano (1989), 181 Ill. App. 3d 547, 557, 537 N.E.2d 402, 404 (due diligence exercised where a section 2—1401 petition to challenge attorney fees award in divorce case was filed two months after the judgment and where petitioner had to retain new counsel); In re Marriage of Pitulla (1986), 141 Ill. App. 3d 956, 960, 491 N.E.2d 90, 93 (the dismissal of a section 2—1401 petition for the lack of due diligence was reversed on the partial basis that the client diligently pursued out-of-court methods to settle her dispute with her divorce attorney about the amount of the attorney fees).

When attorney fees from a client are sought in a dissolution of marriage lawsuit, the attorney and client are in an unusual situation:

“While section 508 [of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 508)] permits judicial economy by eliminating the need for an attorney to sue his own client in a separate action to obtain a judgment for his attorney fee, we must not lose sight of the fact that it also places an attorney and his client in adversary positions during the course of court proceedings. Moreover, the situation presents a circumstance where the client is not represented by counsel although he or she is being opposed by counsel on a matter in which a judgment may be entered against a client. Plainly, what is permitted by section 508 is unique in, and is otherwise inimical to, the legal profession.” Pitulla, 141 Ill. App. 3d at 961, 491 N.E.2d at 93.

The relationship between a client and his attorney was also commented on in In re Marriage of Pagano (1989), 181 Ill. App. 3d 547, 555, 537 N.E.2d 398, 403:

“Because section 508 [of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 508)] puts clients in a position where they are effectively before the court without representation, we are of the opinion that precautions must be taken to ensure that any rights of the client are not relinquished unknowingly and that any resulting attorney fee is fair.”

We note that on March 31, 1988, shortly before the prove up of her divorce case, petitioner was presented with an itemized statement of attorney fees. The statement covered the period of January 16, 1985, through March 31, 1988, and consisted of eight pages and included 131 items. It is doubtful that petitioner could make a meaningful examination of the statement. She alleged that she only had a short time to examine and approve the statement before proceeding to the prove up hearing. She alleged that no one ever responded to her request to discuss the accuracy or legitimacy of the fee request. Petitioner included in her petition the allegation that the billing statement contained untruthful and unnecessary time spent by Friedman. Because the petition as a whole contains sufficient allegations of improprieties, petitioner is entitled to a hearing to decide the correct amount of attorney fees she should pay.

The facts that the client is no longer represented and is in an adversarial position with the attorney when he seeks his fees from the client were relied upon by Pagano (181 Ill. App. 3d at 557, 537 N.E.2d at 404), which stated that a hearing on the section 2—1401 petition alleging attorney impropriety should be granted even in the absence of due diligence. We need not determine whether due diligence is required where there are allegations of attorney impropriety, but we note the authority that holds that section 2—1401 relief can be granted in the absence of due diligence if required in the interests of justice. E.g., Zee Jay, Inc. v. Illinois Insurance Guaranty Fund (1990), 194 Ill. App. 3d 1098, 1103, 552 N.E.2d 1027, 1031.

The issue whether the alleged sexual relationship breached the attorney’s fiduciary duty also is not reached because the alleged attorney fees’ impropriety alone would be a sufficient reason, if proven, to vacate the judgment. See Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 989, 403 N.E.2d 615, 616 (purpose of petition to vacate is to bring before the court facts not appearing on the record which, if known to the court at the time the judgment was entered, would have prevented its rendition).

We also hold that the trial court erred in entering summary judgment in favor of Friedman, Ltd., because there were genuine issues of material fact, e.g., whether the charged attorney fees were accurate. Also, the entry of summary judgment was inappropriate because the merits of the petition were not reached by the trial court, which only held that petitioner had not exercised due diligence in filing the petition.

The judgments of the circuit court entering summary judgment and awarding $16,392.17 in attorney fees are reversed, and the cause is remanded.

Reversed and remanded.

RIZZI, J., concurs.

JUSTICE GREIMAN,

specially concurring:

I concur with the result reached by the majority in reversing the trial court, but believe the attorney’s alleged sexual misconduct, if it is misconduct, should be considered.

Petitioner, a client of the respondent, filed a section 2 — 1401 petition 77 days after the entry of the decree of dissolution, which established petitioner’s liability to respondent for attorney fees.

The petition alleges improprieties in the computation of attorney fees as well as improper conduct by respondent or his employees in the period immediately prior to and during the approval of the fees by the trial court.

Additionally, petitioner alleges she and respondent engaged in sexual relations at least 20 times prior to the entry of the judgment of dissolution and during the time respondent acted as her counsel.

Petitioner’s section 2—1401 petition was dismissed by the trial court for lack of due diligence in presenting the petition and that service on respondent was not properly perfected. The majority rightly recognizes that respondent’s response on the merits to the petition waives the alleged defect in service and after a careful analysis of petitioner’s actions concludes that petitioner exercised due diligence in filing the section 2—1401 petition.

The court correctly followed In re Marriage of Pagano (1989), 181 Ill. App. 3d 547, 537 N.E.2d 398, and In re Marriage of Pitulla (1986), 141 Ill. App. 3d 956, 491 N.E.2d 90, which provided that petitioner’s need for time to retain new counsel and out of court settlement discussions satisfied the due diligence requirements and further acknowledged that under Pagano (181 Ill. App. 3d 547, 537 N.E.2d 398), a section 2—1401 petition which alleges an attorney’s impropriety or misconduct should be granted a hearing even in the absence of due diligence if required in the interest of justice.

Since the requirement of due diligence is not imposed by statute, but rather by judicial mandate, it is perfectly appropriate for this court to carve out a significant exception to the requirement of due diligence where there is an allegation of a sexual relationship between a domestic relations lawyer and client which I believe constitutes a per se conflict of interest.

While the majority declines to address the import of the alleged sexual liaison between petitioner and respondent, I believe that the precedential value of this case should be consideration of the legal profession’s “dirty little secret.”

We conjure up with ease the client entering her lawyer’s office. Her marriage has collapsed and she is concerned about her failed relationship. Perhaps she has been rejected by her spouse. More often than not, she has serious financial problems which may present her with areas of stress with which she has not previously been required to cope. Her children may be severely disturbed over the failed marriage and the pulling and tugging by the parents which is generally attendant to these situations. As she walks through the door of the office, at last she finds someone who cares about her problem, someone who will protect her legally and someone whom she can trust.

Not every woman involved in matrimonial litigation fits the stereotype of a vulnerable person without knowledge of her rights, who relies in an emotional way upon her lawyer. Women in divorce, if they so choose, and lawyers, like everyone else, are generally not restrained from engaging in adult consensual sexual relations.

Having made that observation, however, no citation is needed to state that women involved in matrimonial litigation are often emotionally vulnerable. They feel the pain of divorce and search for a champion for their rights and for the rights of their minor children. They place a heavy reliance on the fact that their lawyer will work in their best interest.

In Illinois, a divorce lawyer who has sexual intercourse with his client has engaged in a per se violation of rules governing conflict of interest. The Illinois Supreme Court has not adopted a rule exclusively dealing with sexual relations between attorney and client. However, Rule 1.7 (Conflict of Interest) or Rule 3.7 (Lawyer as Witness) may be sufficient to regulate such conduct. Illinois Rules of Professional Conduct, 134 Ill. 2d Rules 1.7, 3.7.

Generally, an attorney who benefits from a transaction with a client must show that the transaction was fair, equitable and just and that it did not proceed from undue influence. To prove that the benefit received did not proceed from undue influence, the attorney must prove that he made a full and frank disclosure of all relevant information, that the consideration was adequate, and that the client had independent advice before completing the transaction. (In re Imming (1989), 131 Ill. 2d 239, 545 N.E.2d 715.) It is hardly likely that a lawyer about to begin a sexual relationship with a client would meet that rigorous test.

Moreover, the activity or conduct which is proscribed need not be explictly prohibited by the canons of ethics. In re Lamberis (1982), 93 Ill. 2d 222, 443 N.E.2d 549 (censure for plagiarism).

Although Illinois has adopted “no fault” divorce (Ill. Rev. Stat. 1989, ch. 40, par. 401(a)(2)), adultery remains one of the several grounds upon which a dissolution may be sought (Ill. Rev. Stat. 1989, ch. 40, par. 401(a)(1)). Adultery with her lawyer has provided the husband with grounds for divorce. A lawyer is required to act in the best interest of the client, and if called upon to testify, the lawyer would be required to give testimony contrary to the best interests of such client. (In re Marriage of Lee (1985), 135 Ill. App. 3d 509, 481 N.E.2d 1045; People v. Chatman (1982), 105 Ill. App. 3d 276, 434 N.E.2d 309; People v. Hill (1978), 56 Ill. App. 3d 510, 371 N.E.2d 1257.) His testimony might adversely affect child custody and might have some impact on the distribution of property, prohibitions in that regard to the contrary notwithstanding.

A lawyer is a fiduciary and his client’s best interests must be first and foremost on his mind. Blinois has a strong public policy favoring reconcilation. Could a lawyer who had spent the night with his client enter the office in the morning to discuss the possibility of reconciliation of his client with her husband?

Further, the relationship might affect the attorney-client privilege with respect to communications passing between them. Generally, the privilege does not extend to communications made to an attorney in any other capacity than as an attorney for the party making the communication. (Dickerson v. Dickerson (1926), 322 Ill. 492, 153 N.E. 740.) Hence, some tidbit of information gleaned during their personal time together might eliminate one of the essential elements to maintain the lawyer-client privilege. People v. Adam (1972), 51 Ill. 2d 46, 280 N.E.2d 205.

A lawyer who has engaged in sexual relations with his client has provided a conflict of interest which may require him to testify adversely to his client’s best interests, place the client in a more difficult position with respect to resolution of the issues in the domestic relations case, possibly impair the attorney-client privilege as to communications between them, and make it difficult to pursue the client’s interests with the appropriate kind of zeal and objectivity required by the canons of ethics.

Lawyers who engage in sexual relations with their clients are living on the edge. They might face (i) disciplinary proceedings before the ARDC or (ii) be subject to a malpractice case, or (iii) release of the client from the payment of any fees or sums which may be due or require return of monies paid for services rendered after the act of sexual intercourse. These three remedies are not mutually exclusive and a client could pursue all three.

The Illinois Senate has adopted a resolution directing the Illinois Supreme Court to adopt a rule of professional conduct which would deal with such behavior. However, while such an amendment might be an appropriate statement on the issue, I believe the present rules governing professional conduct may be adequate.

The case at bar deals only with the appropriateness of the attorney fees charged petitioner. Issues of malpractice and discipline must be left to another forum. Accordingly, a domestic relations client ought to be freed of the obligation of paying attorney fees from and after the time that the lawyer has a conflict of interest.

Illinois Law and Practice states: “An attorney may be deprived of compensation because *** he has represented adverse, conflicting and antagonistic interests in the same litigation. *** Unprofessional conduct has some effect on attorneys fees and in some cases, may be a complete bar to any recovery.” 4 Ill. L. & Prac. Attorneys and Counselors §124, at 211 (1971).

This court may refer to the rules of professional conduct as a reliable guide to what constitutes unprofessional conduct on the part of an attorney and upon such reference may determine that there ought to be a complete bar to any recovery of attorney fees. Talley v. Alton Box Board Co. (1962), 37 Ill. App. 2d 137, 185 N.E.2d 349.

Illinois courts have often been willing to set aside agreements for the payment of legal fees if they are violative of public policy. O’Hara v. Ahlgren, Blumenfeld & Kempster (1989), 127 Ill. 2d 333, 537 N.E.2d 730 (payment to deceased law partner’s surviving spouse); Phillips v. Joyce (1988), 169 Ill. App. 3d 520, 523 N.E.2d 933 (fee-splitting agreements); Leoris v. Dicks (1986), 150 Ill. App. 3d 350, 501 N.E.2d 901.

There are those who will argue that such a rule invites mischief and perjury. I note, however, that conviction for sexual assault can be obtained upon the testimony of the complainant alone without corroboration. (People v. Stengel (1991), 211 Ill. App. 3d 337, 570 N.E.2d 391.) Surely, if one’s liberty can be forfeited without corroboration, a lawyer’s fee ought to suffer the same fate upon a proper showing.

It ought to be no defense that the lawyer has handled or negotiated the matter in a lawyerlike fashion or otherwise properly accounted for himself in accordance with the best of his abilities. The sexual relationship between lawyer and client in a divorce setting is inherently an exploitive situation. The sexual relationship with a client always constitutes a conflict of interest, and as Jeffrey C. Hazard, Jr., of the Yale Law School wrote in The National Law Journal, April 15,1991:

“If the sexual relationship is emotionally serious, the lawyer cannot be dispassionate about the client’s legal problems. If the relationship is not emotionally serious, the lawyer may be exploiting the client. Of course, there can be cases where the relationship is genuine and not exploitive. But the probabilities are stronger the other way. Hence, a per se rule might be justified ***. The concept of a per se rule is not unheard of in conflict-of-interest matters.”

I believe the sexual relationship between matrimonial lawyer and client contaminates their professional relationship and establishes a per se conflict of interest which would render his fees forfeit where the client brings the matter to the attention of the court within a reasonable time and provides evidence sufficient to carry her burden of proof.

      Section 2—1401 of the Illinois Code of Civil Procedure is substantially the same as was contained in the previous section 72 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72). Both have their roots in the writ of error coram nobis which required due diligence on the part of the person seeking the writ. M.L.C. Corp. v. Pallas (1978), 59 Ill. App. 3d 504, 375 N.E.2d 560; Diacou v. Palos State Bank (1976), 65 Ill. 2d 304, 357 N.E.2d 518.

      About 1% of the 5,000 complaints which the Illinois Attorney Registration and Disciplinary Commission received during 1989 involved attorney-client sexual encounters. The ARDC determined that the problem is “a systematic, unchanging and consistent trend” in the domestic relations field. (Illinois Gender Bias Task Force, Illinois Task Force on Gender Bias in the Courts, at 54 (1990) (hereinafter cited as Task Force).) The Task Force expresses its concern about sexual relationships between domestic relations attorneys and their clients and states: “(1) the likelihood that the client is in a vulnerable emotional state and that the sexual relationship may increase her emotional dependency; (2) the possibility that the result of this increased emotional dependency is that the client is not able to give full voluntary and informed consent either to the relationship or to continued representation by the attorney; (3) the possibility that the attorney-client relationship may prevent any possible reconciliation between the client and her husband; (4) the inability to anticipate how the client’s spouse might react to the relationship if he were to find out, and how this discovery would affect the negotiation of property rights in their divorce and, if children are involved, the client’s right to custody; and (5) the possibility that the attorney may breach the fiduciary relationship with the client by being unable to render competent representation without a conflict of interest.” Task Force at 55; see also Du-bin, Sex and the Divorce Lawyer: Is the Client Off Limits, 1 Geo. J. of Legal Ethics, 585, 589 (1988).

      Conduct prior to August 1, 1990, would have been governed by Rule 1—102 (Misconduct) or Rule 5 — 101 (Conflict of Interest) or Rule 5—102 (Lawyer as Witness) of the Code of Professional Responsibility repealed August 1, 1990. 107 Ill. 2d Rules 1—102, 5-101, 5-102.

      A proposal to the California Bar would have required the lawyer to provide informed consent to the client by advising her of the potential pitfalls of a lawyer-client sexual experience and suggesting that the client discuss the matter with a second lawyer and sign a written waiver. (Bishop, Cracking Down on Sex with Clients, N.Y. Times, March 15, 1991, §B (Law), at 16, col. 3.) This would appear to be the legal equivalent of a cold shower!

      In 1955 the General Assembly enacted then section 6a (Ill. Rev. Stat. 1955, ch. 40, par. 7a) which provided for commencement of divorce actions by praecipe and the filing of a complaint 60 days thereafter to encourage reconciliation during a cooling off period. In 1961, the “litigate by day, copulate by night” statute was passed encouraging litigants to reconcile during the pendency of litigation and not lose their respective grounds for relief. (Ill. Rev. Stat. 1961, ch. 40, par. 21.2.) A similar provision appears in our “No Fault” statute. (Ill. Rev. Stat. 1987, ch. 40, par. 401(aX2).) Courts may order litigants to attend conferences and counselling if the court or any party concludes that there is a prospect of reconciliation. (Ill. Rev. Stat. 1987, ch. 40, par. 404(a); Cir. Ct. Cook County R. 13.4(f)(iii)(A).) Additionally, the Illinois legislature provided in the preamble of the Illinois Marriage and Dissolution Act of 1977 that one of the avowed purposes of the Act is to “strengthen and preserve the integrity of marriage and safeguard family relationships.” Ill. Rev. Stat. 1987, ch. 40, par. 102(2).

      It is not clear that malpractice will be an easy road to follow since Suppressed v. Suppressed (1990), 206 Ill. App. 3d 918, 565 N.E.2d 101. (See also Warden, Secret Suits, Chicago Lawyer, April 18, 1989, at 1, col. 2; Wisniewski, Sex With Clients An Unfair Affair, Chicago Daily Law Bulletin, April 20, 1991, at 1, col. 5.) Different rules may apply to health care providers. Corgan v. Muehling (1988), 167 Ill. App. 3d 1093, 522 N.E.2d 15, aff’d (1991), 143 Ill. 2d 296.

      Although Illinois has not adopted a specific rule, California recently drafted a rule which, if approved by the California Supreme Court, would prohibit sexual relations with clients if there is no coercion, intimidation or undue influence when entering into the sexual relationship and continuing representation if the sexual relations would reflect on his ability to perform legal services in a competent manner. The rule does not apply to lawyer-client sexual relations predating the initiation of the lawyer-client relationship and it presents only a presumption that the rule has been violated. Rule 3 — 120 of the Business and Professional Code of California.

      Lawyers disciplined for sexual advances to their clients: In re Stanton (1985), 103 N.M. 413, 708 P.2d 325; State v. Heilprin (1973), 59 Wis. 2d 312, 207 N.W.2d 878; Cincinnati Bar Association v. Fettner (1983), 8 Ohio St. 3d 17, 455 N.E.2d 1288; State of Michigan Attorney Disciplinary Board v. Gold (June 30, 1981), File No. DP 18/81; In re Adams (Ind. 1981), 428 N.E.2d 786; In re Merrifield, before the Comm. on Legal Ethics of the W.Va. State Bar, L.E.C. 85—12 (March 27, 1986); In re Gibson (1985), 124 Wis. 2d 466, 369 N.W.2d 695; Committee on Professional Ethics & Conduct of Iowa State Bar Association v. Durham (Iowa 1979), 279 N.W.2d 280. Trading sexual favors for legal services: In re Wood (1976), 265 Ind. 616, 358 N.E.2d 128; In re Howard (1984), 297 Or. 174, 681 P.2d 775. Grant of custody to husband where wife had moved in with lawyer: In re Marriage of Lehr (1978), 36 Or. App. 23, 583 P.2d 1157. Suit against lawyer for failure to use condom: Barbara A. v. John G. (1983), 145 Cal. App. 3d 369, 193 Cal. Rptr. 422 (partial compilation set out in Dubin, Sex and the Divorce Lawyer: Is the Client Off Limits, 1 Geo. J. of Legal Ethics 585 (1988)).

      I make no determination as to a per se rule with respect to patent lawyer and inventor; real estate lawyer and developer; personal injury lawyer and injured plaintiff; corporate lawyer and CEO or any of the innumerable other possible combinations nor do I determine whether the lawyer is entitled to fees accrued or received prior to their sexual relationship.