Illinois HB 3718 Goes into Effect

One of the spate of new laws to take effect on January 1 alters and consolidates the protective order process in Chicago.

The changes are largely procedural and designed to streamline this area of the law. The measure largely does away with the distinction between “civil” and “criminal” protective orders, so most protective order violations are now criminal law matters. The changes have significance for both alleged abusers, who now always have the right to counsel, and alleged victims, who may be better protected under criminal laws than civil ones.

The new protective order statute does not allow for any hearing. The statute specifically provides that a prima facie case is made by the filing of any complaint indictment or petition for juvenile delinquency. That means that if you are arrested, it is a foregone conclusion that a protective order shall issue in the case as the statute is currently written.

The offices of Glasgow & Olsson are currently litigating the constitutionality of this statute in Illinois courts as it is our belief that it is a due process violation to enter a protective order and curtail both proprietary rights and personal freedoms without due process of a court hearing. It allows the executive branch and the police to determinate if a protective order should issue rather than the courts and offers no opportunity to contest the evidence, cross examine the witnesses, or test the evidence.

It also has the potential for misuse. One can imagine a vindictive soon-to-be-ex-spouse who is going to file for divorce making up allegations about a soon-to-be-ex-spouse in order to gain the advantage of sole possession of the house, the children, and establishment of maintenance and child support without a Court hearing.

Under this statute in a State that has a zero tolerance policy for any domestic violence complaint, arrest and a protective order is a foregone conclusion if a complaint is made to the police by one of the parties.

Types of Protective Orders in Illinois

State law basically defines domestic violence as either a forcible assault or a pattern of conduct designed to harass, annoy, frighten, or otherwise harm the alleged victim. In either case, there must be a specific relationship between the parties. The protected relationships include:

  • Spouses: People who are divorced or had their marriages annulled, even if the divorce or annulment occurred decades ago, are still “spouses” for the purposes of domestic violence laws in Illinois.
  • Blood or Marriage Relationship: This list includes bonds like parents and children, aunts and uncles, stepchildren and stepparents, or grandparents and parents. Typically, the two people must be in the same “household,” a word that is somewhat subjective.
  • Dating Partners or Roommates: These categories are quite vague, as there is no hard-and-fast rule as to how many dates constitutes a “dating relationship” and how many overnights makes two people “roommates.”
  • Caregivers and Disabled Individuals: This type of relationship usually only applies to anti-assault protective orders, as a judge is unlikely to issue a stalking-no contact order in these cases.

To obtain a protective order, the alleged victims must essentially show that they reasonably fear for their physical safety. As a result, such orders commonly contain provisions that:

  • Prohibit Physical Violence: While the protective order itself obviously cannot prevent such acts, violation of a protective order is now almost always a serious criminal offense, so many people may think twice about violating one.
  • Establish Buffer Zones: Most protective orders prohibit alleged abusers from coming too close to an alleged victim’s residence, place of work, or other such place. The order usually only applies to people named in the protective order..
  • Exclude Defendants from Residences: Even if the alleged abuser pays the rent and is the only person named on the lease, some protective orders may include “kick-out” orders if the judge believes that such an order is necessary..

Some protective orders also include counselling requirements, directives to pay financial support, instructions to surrender firearms, and other such protective measures.

Stalking/no contact orders prohibit things like following the alleged victims, going near their workplaces or property, calling them repeatedly, or delivering things to them. HB 3781 also closed a loophole, so alleged abusers who convince other people to stalk alleged victims violated their protective orders.

Contact Tenacious Lawyers

Despite the new law, protective order law in Illinois is still very complex. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Rene Bohmer)

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