Regardless of the specific claims or defenses, Illinois judges nearly always grant emergency protective orders, largely because they only hear one side of the story. Therefore, the issue for alleged abusers is not so much what defenses to present but rather how to deal with the fallout from an EOP.
In most cases, violating a protective order is a Class A misdemeanor, which means a maximum one year in jail and $2,500 fine. A person violates a protective order if he or she does something that the order prohibits, such as contacting the alleged victim, or does not do something that the order requires, such as paying support. An alleged EOP violation, and even the mere fact that the alleged victim obtained such an order, is also probably admissible in a divorce or child custody proceeding.
Like almost all other criminal offenses, there are two parts to a protective order violation, which are actus reus (a physical act) and mens rea (intent or knowledge of wrongdoing). The physical act is relatively easy to prove in court because, for example, the alleged abuser texted the alleged victim or he did not. However, the mental element is much more subjective and must be established by circumstantial evidence.
Aggressive officers often arrest defendants in these situations regardless of whether the defendant has been served with the order. In court, the prosecutor must prove beyond a reasonable doubt that the the defendant had “actual knowledge of the contents of the order.” That is almost impossible to do if the defendant has not seen a copy of the order.
If the alleged victim provided false information at the hearing regarding the alleged abuser’s whereabouts in order to deny a hearing, the defendant may have an affirmative defense under section (a-5).
As a preliminary note, EOPs are almost never fatal to a family law case because absent extreme circumstances, few judges will deny child visitation altogether because of such an order. That being said, EOPs can have significant repercussions.
At the very least, EOPs cause expensive delays. If either party obtains a protective order, the judge almost invariably orders a social study to determine the veracity of these allegations, and depending on the type of case and jurisdiction, these studies could take months and cost thousands of dollars.
At the very worst, the judge will probably disqualify the alleged abuser from obtaining custody, severely limit visitation, and require the abuser to jump through a number of hoops as a condition of visitation, such as paying restitution or attending classes.
One of the best ways to limit these effects is to focus on the alleged victim’s motives for bringing the protective order. Sometimes the timing is suspect, such as an alleged victim who files an EOP request shortly before, or shortly after, a child custody matter. Other times, these orders are arguably overkill, such as an alleged victim who requests a full range of no-contact orders after only one mild altercation.
Regardless of the motives, it is important for everyone concerned that the alleged abuser comply with all the terms of the EOP until a judge says otherwise.
Contact Assertive Attorneys
Aggressive and thoughtful legal action can usually reduce or eliminate the fallout from an EOP. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Alexander Dimitrov)