• 1, 2 Where a rape conviction turns on the complainant's testimony, it must be clear and convincing, or corroborated by other evidence. ( People v. Wilcox (1975), 33 Ill. App.3d 432, 436.) When the victim retains the power to resist, voluntary submission, however reluctant, constitutes consent.
Acts such as the latter example imply an intention to obtain sexual gratification. Defendant's intentions may be inferred from his actions and the surrounding circumstances. ( People v. Wilcox (1975), 33 Ill. App.3d 432, 337 N.E.2d 211.) The State contends that no other inference can be drawn from defendant's conduct except that he was attempting to obtain sexual gratification. Finally, the State asserts that a court of review should not set aside a finding of guilt unless the evidence is so palpably contrary or so unreasonable, improbable, or unsatisfactory as to cause reasonable doubt as to the guilt of the accused.
Cf. State v. Forshner, 43 N.H. 89 (1861). See also Commonwealth v. Kendall, 113 Mass. 210 (1873) (evidence of "former familiarities" between victim and defendant admitted); McLean v. United States, 377 A.2d 74, 78 n. 5 (D.C.App. 1977) (testimony that defendant and complainant had sexual intercourse "on many occasions" admitted); People v. Wilcox, 33 Ill. App.3d 432, 435 (1975) (defendant testified regarding sexual relations with victim occurring "ten or more times" prior to alleged incident). Thus, the trial judge in the instant case was correct in assuming that, under the common law rule, according to his discretion, the evidence could have been admitted.
We note that evidence of specific acts of sexual intercourse with the defendant himself should be admitted where either there may be an issue of identity at trial or to rebut the government's evidence that the prosecutrix did not consent to sexual intercourse on the particular occasion. See State v. Roberson, 543 S.W.2d 817, 820 (Mo.App. 1976); Pope v. Superior Court, supra, 545 P.2d at 953; People v. Wilcox, 33 Ill. App.3d 432, 337 N.E.2d 211, 216 (1975); People v. Whitfield, supra, 228 N.W.2d at 478. In the present case, the court permitted testimony by appellant that he had sexual intercourse with the complainant on many occasions, including a trip to Atlantic City, New Jersey, and this testimony was properly presented to the jury.
The previous consent to vaginal intercourse, "does not give the defendant a license to forcefully require other sexual acts which the complaining witness testified were against her will." People v. Wilcox (1975), 33 Ill. App.3d 432, 436, 337 N.E.2d 211, 216. The fact that S.M. did not call the police while defendant was asleep, because she was afraid he would wake up and hurt her, does not, under the circumstances, seriously impeach her testimony.
The supreme court, however, found no reversible error because all of the hearsay information was also established directly in the testimony of the complainant, the out-of-court declarant whom the defense counsel could and did cross-examine. Accord, People v. Leggans (1980), 80 Ill. App.3d 51, 399 N.E.2d 349; People v. Wilcox (1975), 33 Ill. App.3d 432, 337 N.E.2d 211. Accordingly, we affirm the judgment of the circuit court of Winnebago County.
In McLean v. United States, 377 A.2d 74 (D.C. App. 1977), the District of Columbia Court of Appeals stated at page 78, footnote 5: We note that evidence of specific acts of sexual intercourse with the defendant himself should be admitted where either there may be an issue of identity at trial or to rebut the government's evidence that the prosecutrix did not consent to sexual intercourse. . . . See State v. Roberson, 543 S.W.2d 817, 820 (Mo. App. 1976); Pope v. Superior Court, [113 Ariz. 22], 545 P.2d at 953 [(1976)]; People v. Wilcox, 33 Ill. App.3d 432, 337 N.E.2d 211, 216 (1975); People v. Whitfield, [ 58 Mich. App. 585], 228 N.W.2d at 478 [(1975)]. Once a woman has had intercourse with a particular man, an argument can be made that she consented on a subsequent, albeit remote, occasion.
(See People v. Chaney (1977), 48 Ill. App.3d 775, 362 N.E.2d 1375; People v. Sweeney (1977), 46 Ill. App.3d 858, 361 N.E.2d 344.) Where a conviction for either offense is based upon the testimony of the complainant, it must be clear and convincing or otherwise corroborated by other evidence. See People v. Williams (1977), 54 Ill. App.3d 848, 368 N.E.2d 1109; People v. Wilcox (1975), 33 Ill. App.3d 432, 337 N.E.2d 211. • 2 Applying these principles, we believe the evidence was sufficient to prove defendant guilty of rape and deviate sexual assault beyond a reasonable doubt.
(See People v. Secret (1978), 72 Ill.2d 371, 378, 381 N.E.2d 285.) In People v. Wilcox (1975), 33 Ill. App.3d 432, 337 N.E.2d 211, appeal denied (1976), 62 Ill.2d 591, a conviction for deviate sexual assault was upheld where the victim had engaged in sexual intercourse with the defendant on a number of prior occasions and had been willing to do so on the night of the assault, but unwilling to engage in a deviate act. Further aspects of the State's evidence regarded by defendant as inconsistent and improbable we find to be of too minor a character to warrant discussion here.
Here, Pierchalski called Benny Johnson who testified that the complainant's reputation for chastity was bad. While Pierchalski cites People v. Wilcox (1975), 33 Ill. App.3d 432, 337 N.E.2d 211, for the proposition that previous acts of intercourse between the defendant and the complainant are to be considered in weighing the evidence against the defendant, Wilcox is distinguishable. There the complainant admitted having prior sexual relations with the defendant.