Posted on September 4, 2022

Criminal Orders Of Protection In An Illinois Divorce

Divorce is contentious. Often, divorce so contentious that one party to the divorce requests that the other party no longer contact or communicate with them via an order of protection.

There are two types of orders of protection: criminal and civil petitions for order of protection.

Civil orders of protection are prosecuted in divorce court by the party with the petition (and/or their lawyer). A civil order of protection puts the issue of abuse front and center with the judge that will be deciding all the other issues in the case.

If you have a legitimate petition for an order of protection, a civil order of protection is a great way to frame your divorce case in front of a divorce judge.

Furthermore, a civil order or protection only requires a finding of “abuse”.

“’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1)

These types of abuse are very easy to prove with a mere description of the incidence when the alleged abuse occurred.

A spouse who is truly in fear of their abuser may want the extra “oomph” that a criminal order of protection can provide, however.

Criminal Orders Of Protection In Illinois

If one party to a divorce has committed a crime such as battery, assault, stalking, harassment, etc., the other party can inform the police or state’s attorney’s office who can subsequently open a criminal case against the alleged abuser.

“The following protective orders may be entered in conjunction with a delinquency petition or a criminal prosecution:(1) a domestic violence order of protection in cases involving domestic violence;(2) a civil no contact order in cases involving sexual offenses; or(3) a stalking no contact order in cases involving stalking offenses.” 725 ILCS 5/112A-2.5

90% of criminal orders of protection stem from an instance of domestic battery.

“A person commits domestic battery if he or she knowingly without legal justification by any means:(1) Causes bodily harm to any family or household member;(2) Makes physical contact of an insulting or provoking nature with any family or household member.” 720 ILCS 5/12-3.2

Domestic battery has a low bar of proof. “Physical pain” is enough to sustain a claim of domestic bate

“Although it may be difficult to pinpoint exactly what constitutes bodily harm for the purposes of the statute, some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent is required.” People v. Mays, 437 NE 2d 633 – Ill: Supreme Court 1982

In conjunction with this accusation of domestic battery or any other criminal abusive behavior by a spouse, the victim can request an order of protection.

“A petition for a protective order shall be filed in conjunction with a…criminal prosecution…The petition may include a request for an ex parte protective order, a final protective order, or both. The petition shall be in writing and verified or accompanied by affidavit and shall allege that:(1) petitioner has been abused by respondent, who is a family or household member;(2) respondent has engaged in non-consensual sexual conduct or non-consensual sexual penetration, including a single incident of non-consensual sexual conduct or non-consensual sexual penetration with petitioner; or(3) petitioner has been stalked by respondent.” 725 ILCS 5/112A-5

“”Protective order” means a domestic violence order of protection, a civil no contact order, or a stalking no contact order.” 725 ILCS 5/112A-2.5

The protective order will protect both the victim and the victim’s children. “The following persons are protected by this Article in cases involving domestic violence:(1) any person abused by a family or household member;(2) any minor child or dependent adult in the care of such person” 725 ILCS 5/112A-4(a)

If children are a protected party in an order of protection, the order of protection becomes a custody order for the pendency of the order of protection.

Having the police and/or state’s attorney to agree that the underlying crime has occurred is necessary to in order for a criminal order of protection to issue. The police and/or state’s attorney might choose not to prosecute your charge, however.

You can remind the State’s Attorney that “The duty of each State’s Attorney shall be:(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for the county, in which the people of the State or county may be concerned.” 55 ILCS 5/3-9005 (emphasis mine)

Likewise, the local police agency will have a municipal code that requires them the investigate and charge offenses. A polite reminder might help get your case the criminal prosecution it needs in order to get a criminal order of protection.

An abused spouse does not need to wait for a finding of guilty for the underlying crime in order to obtain an order of protection. The court will issue an order of protection while the case is pending if the accusation doesn’t have a reasonable and credible excuse.

“[T]he court shall grant the petition [for order of protection] and enter a protective order if the court finds prima facie evidence that a crime involving domestic violence, a sexual offense, or a crime involving stalking has been committed.” 725 Ill. Comp. Stat. Ann. 5/112A-11.5

Prima facie evidence is “[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced” Black’s Law Dictionary (11th ed. 2019)

So, the mere allegation of domestic violence, a sex offense or stalking is sufficient to obtain a criminal order of protection unless the alleged abuser has a rock-solid alibi.

Bail Bonds Are, Effectively, Criminal Orders Of Protection In Illinois

People accused of crimes after arrest are usually released from custody on bond. The bond will have conditions.

“When a person is charged with a criminal offense and the victim is a family or household member…conditions shall be imposed at the time of the defendant’s release on bond that restrict the defendant’s access to the victim. Unless provided otherwise by the court, the restrictions shall include requirements that the defendant do the following: (1) refrain from contact or communication with the victim for a minimum period of 72 hours following the defendant’s release; and (2) refrain from entering or remaining at the victim’s residence for a minimum period of 72 hours following the defendant’s release.” 725 ILCS 110-10(d)

Any subsequent violation of bond’s terms is a class A misdemeanor.

“Whoever, having been admitted to bail for appearance before any court of this State, while charged with a criminal offense in which the victim is a family or household member…, knowingly violates a condition of that release…commits a Class A misdemeanor.” 720 ILCS 5/32-10)(b)

“For a Class A misdemeanor: The sentence of imprisonment shall be a determinate sentence of less than one year” 730 ILCS 5/5-4.5-55(a)

How Long Does A Criminal Order Of Protection Last In Illinois

When the underlying crime is prosecuted and a guilty verdict is reached, a protective order shall be entered that will remain in effect “until 2 years after the expiration of any supervision, conditional discharge, probation, periodic imprisonment, parole, aftercare release, or mandatory supervised release for domestic violence orders of protection and civil no contact orders” 725 ILCS 5/112A-20(b)(3)

Protective orders are only “permanent for a stalking no contact order if a judgment of conviction for stalking is entered” 725 ILCS 5/112A-20(b)(5)

Sex related crimes allow the victim to request permanent protective orders against the offender. Protective orders can be “permanent for a civil no contact order at the victim’s request if a judgment of conviction for criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse…or aggravated criminal sexual abuse is entered.” 725 ILCS 5/112A-20(6)

What’s The Penalty For Violating A Criminal Order Of Protection In Illinois

Violation of a criminal order of protection is not the end of the world. The police will take the violator away and the violator will be charged with a Class A misdemeanor.

“Violation of an order of protection is a Class A misdemeanor.” 720 ILCS 5/12-3.4(d)

If the criminal order of protection violator has any criminal history at all, including violating previous protective orders than the penalty will be a severe Class 4 felony.

“Violation of an order of protection is a Class 4 felony if the defendant has any prior conviction under this Code for domestic battery (Section 12-3.2) or violation of an order of protection (Section 12-3.4 or 12-30) or any prior conviction under the law of another jurisdiction for an offense that could be charged in this State as a domestic battery or violation of an order of protection. Violation of an order of protection is a Class 4 felony if the defendant has any prior conviction under this Code for first degree murder (Section 9-1), attempt to commit first degree murder (Section 8-4), aggravated domestic battery (Section 12-3.3), aggravated battery (Section 12-3.05 or 12-4), heinous battery (Section 12-4.1), aggravated battery with a firearm (Section 12-4.2), aggravated battery with a machine gun or a firearm equipped with a silencer (Section 12-4.2-5), aggravated battery of a child (Section 12-4.3), aggravated battery of an unborn child (subsection (a-5) of Section 12-3.1, or Section 12-4.4), aggravated battery of a senior citizen (Section 12-4.6), stalking (Section 12-7.3), aggravated stalking (Section 12-7.4), criminal sexual assault (Section 11-1.20 or 12-13), aggravated criminal sexual assault (Section 11-1.30 or 12-14), kidnapping (Section 10-1), aggravated kidnapping (Section 10-2), predatory criminal sexual assault of a child (Section 11-1.40 or 12-14.1), aggravated criminal sexual abuse (Section 11-1.60 or 12-16), unlawful restraint (Section 10-3), aggravated unlawful restraint (Section 10-3.1), aggravated arson (Section 20-1.1), aggravated discharge of a firearm (Section 24-1.2), or a violation of any former law of this State that is substantially similar to any listed offense, or any prior conviction under the law of another jurisdiction for an offense that could be charged in this State as one of the offenses listed in this Section, when any of these offenses have been committed against a family or household member as defined in Section 112A-3 of the Code of Criminal Procedure of 1963.” 720 ILCS 5/12-3.4(d)

“For a Class 4 felony:…The sentence of imprisonment shall be a determinate sentence of not less than one year and not more than 3 years.” 730 § 5/5-4.5-45 5/5-4.5-45

A second time order of protection violator is going to jail. Period.

“The court shall impose a minimum penalty of 24 hours imprisonment for defendant’s second or subsequent violation of any order of protection.” 720 ILCS 5/12-3.4(d)

Relying on a third party to both prosecute the underlying crime and get an order of protection may be overly cumbersome and slow for your circumstances (living with an abuser).

Also, many divorcing parties don’t want to charge their spouse (and parent of their children) with the underlying crime. Many divorcing spouses just want to be left alone by the alleged abuser.

For this reason, many divorcing parties in Illinois simply pursue a civil order of protection.

The remedy in a civil petition for order of protection is largely the same: an order of protection…that has all the same penalties if violated.

Sometimes I do not want to be hired by a person in the throes of divorce. Sometimes it is better if the victim of domestic violence, harassment or stalking uses the resources of the state to obtain an order of protection which will allow them and their children the peace they need to later pursue their objectives in an Illinois divorce. Still, it cannot hurt to call me and find out if a criminal order of protection is the best fit for you and your situation.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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