Orders of protection are powerful tools and once an order of protection is in place, its violation has serious penalties. Orders of protection can be violated even if the protected party consents to the so-called violation.
Orders of protection keep people apart who used to live together.
Orders of protection are ony available to “any person abused by a family or household member” 750 ILCS 60/201(a)(i)
Orders of protection can also be issued for people who used to date. “Family or household member” include “persons who have or have had a dating or engagement relationship.” 750 ILCS 60/103(6)
People that used to share some kind of familial or dating relationship often will reach out their former abusers either out of nostalgic desire for reconciliation or as a trap to force the defendant to violate the order of protection.
Is it a valid defense to say that an order of protection was not violated because the protected party was, in reality, the person who contacted the defendant? Can a defendant to an order of protection argue that the protected party was not threatened or abused by the defendant but, rather, invited the defendant to contact them…which may, technically, violate the order of protection but not the spirit of the order of protection: to protect?
The violation of an order of protection depends on what remedies were granted in the order of protection.
When an order of protection is issued different remedies are established that prohibit future contact between the parties.
Virtually all orders of protection include a “[p]rohibition of abuse, neglect, or exploitation. Prohibit respondent’s harassment, interference with personal liberty, intimidation of a dependent, physical abuse, or willful deprivation, neglect or exploitation…stalking of the petitioner” 750 ILCS 60/214(a)(1)
Answering a petitioner’s phone call or coming over to a petitioner’s house after being invited is hardly “abuse, neglect, exploitation…harassment, etc.” However, most orders of protection additionally prohibit ANY contact.
The Illinois Domestic Violence Act allows a court to “[o]rder respondent to stay away from petitioner or any other person protected by the order of protection, or prohibit respondent from entering or remaining present at petitioner’s school, place of employment, or other specified places at times when petitioner is present, or both, if reasonable, given the balance of hardships. Hardships need not be balanced for the court to enter a stay away order or prohibit entry if respondent has no right to enter the premises.” 750 ILCS 60/214(a)(3)
An order to “stay away” will be enforced broadly whether the contact is harassing or not. People v. Olsson, 335 Ill. App. 3d 372, 373 (Ill. App. Ct. 2002)
If the protected party initiates contact and the defendant replies, is that a violation of an order “to stay away from petitioner of any other person protected by the order of protection?”
Yes!
“[W]e do not agree that a victim’s invitation to violate the court’s order frees those contemnors from conviction for wilful misconduct.” People v. Townsend, 538 NE 2d 1297 – Ill: Appellate Court, 4th Dist. 1989
The protected party has no control over the order of protection. The order of protection is issued by the court NOT by the protected party.
“Protective orders are orders of the court, not of the person to whom they extend protection. Here, the court ordered that contact between [the defendant], or his agents, and [the protected party] was prohibited. Therefore, because [the protected party] could not waive that protection on his own, who initiated the contact is irrelevant to whether [the defendant] acted in contempt of the circuit court’s order.” Doe v. Lutz, 625 NE 2d 325 – Ill: Appellate Court, 1st Dist., 2nd Div. 1993
This concept that a court’s order is binding despite the wishes of a protected party is made even clearer when considering that children are often protected by an order of protection. Children want to see their parents (even the abusive ones) but children also want to eat ice cream for dinner. We do not follow the wishes of children. We follow court orders.
“[E]ven if respondent was correct in her belief that her children did not want to visit with her, the wishes of the children would be immaterial. Court orders are not contingent upon the approval of third parties whom those orders were intended to benefit, and even if those third parties later decide they do not wish the benefits of the court order, persons subject to that court order are in no way relieved from obeying it.” In Interest of BJ, 644 NE 2d 791 – Ill: Appellate Court, 4th Dist. 1994
What Happens When An Order Of Protection Is Violated?
Violations of an order of protection can be enforced by a criminal court or within the civil court that issued the order of protection (usually a domestic relations court).
“A violation of any valid protective order, whether issued in a civil or criminal proceeding or by a military judge , may be enforced through civil or criminal contempt procedures, as appropriate, by any court with jurisdiction” 725 ILCS 5/112A-23(b)
“A violation of any protective order, whether issued in a civil, quasi-criminal proceeding or by a military judge , shall be enforced by a criminal court” 725 ILCS 5/112A-23(a)
If prosecuted as a crime, “[v]iolation of an order of protection is a Class A misdemeanor.” 720 ILCS 5/12-3.4(d)
“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)
Multiple violations of an order of protection can be charged as a 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.” 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 multiple time violator of any order of protection violator is going to jail.
“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)
The protected party to an order of protection may want to show the judge who ordered the order of protection how right the judge was to have made that order. The protected party can file a petition to hold the violator in indirect criminal contempt.
“Criminal contempt…consist[s] of disobedience of a court order” In re Marriage of Betts, 558 NE 2d 404 – Ill: Appellate Court, 4th Dist. 1990
“A party who understands the court’s meaning but chooses to ignore the mandate commits contempt of court.” In re Parentage of Melton, 748 NE 2d 291 – Ill: Appellate Court, 1st Dist., 1st Div. 2001
One can imagine how bringing a petition for contempt before a judge in an ongoing divorce could firmly establish one party as “the bad guy.” Judges do not want their orders violated.
Judges get to tailor the penalty for those who have violated their orders. A violation of an order of protection may result in further limiting contact with children or additional financial penalties.
“The trial court is in the best position to determine a suitable sentence for a person found guilty of indirect criminal contempt, and a reviewing court will not disturb that determination absent an abuse of discretion.” Woodstock Hunt Club v. Hindi, 684 NE 2d 1089 – Ill: Appellate Court, 2nd Dist. 1997
If the protected party did, in fact, initiate contact or lure the alleged violator into violating the order of protection, the alleged violator can argue that the violation was not a “willful violation.”
“To sustain a finding of indirect criminal contempt for the violation of a court order outside the presence of the court, two elements must be proved: (1) the existence of a court order; and (2) a willful violation of that order.” In re Marriage of Almquist, 704 NE 2d 68 – Ill: Appellate Court, 3rd Dist. 1998
Stumbling upon a protected party in a grocery store aisle may not be a “willful violation” of an order of protection but continuing contact and not turning your cart around probably is a “willful violation” of the order of protection.
Likewise, a criminal charge of violation of an order of protection requires that the defendant “knowingly” violated the order of protection.
“A person commits violation of an order of protection if…He or she knowingly commits an act which was prohibited by a court” 720 ILCS 5/12-3.4(a)(1)
It only takes a few seconds for someone violating an order of protection to realize they are doing so. If the defendant does not reverse their actions immediately, they will be found guilty and punished accordingly.
To reiterate, an order of protection cannot be waived by protected party. If a protected party wants to terminate the order of protection, they must formally request the court terminate that order of protection. Until then, the order of protection is in full effect no matter what anyone feels.
Orders of protection follow a byzantine logic that needs to be understood and applied by a seasoned attorney. Contact my Illinois family law firm today to speak with an experienced Illinois order of protection lawyer.
