Posted on August 13, 2022

Self-Defense And Orders Of Protection In Illinois

Getting an order of protection in Illinois is not difficult.

“A petition for an order of protection may be filed only: (i) by a person who has been abused by a family or household member” 750 ILCS 60/201(b)(1)

“A petition for an order of protection shall be in writing and verified or accompanied by affidavit and shall allege that petitioner has been abused by respondent, who is a family or household member.” 750 ILCS 60/203(a)

“If the court finds that petitioner has been abused by a family or household member…an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214

Abuse is “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.” 750 ILCS 60/103(1) (West 2020)

Just seeming dangerous is enough for an order of protection to issue

“”Physical abuse” …means any of the following:(i) knowing or reckless use of physical force…or(iii) knowing or reckless conduct which creates an immediate risk of physical harm.” 750 ILCS 60/103

Proving dangerous behavior for the purposes of obtaining an order of protection is not like a criminal trial that requires proof “beyond a reasonable doubt.”

“Any proceeding to obtain, modify, reopen or appeal an order of protection, whether commenced alone or in conjunction with a civil or criminal proceeding, shall be governed by the rules of civil procedure of this State. The standard of proof in such a proceeding is proof by a preponderance of the evidence, whether the proceeding is heard in criminal or civil court.” 750 ILCS 60/205(a)

When the “standard of proof is only a preponderance of the evidence, [a Petitioner] must prove that it is more probably true than not true that [Respondent] was guilty of such acts of [abuse].” In re Marriage of Gordon, 599 NE 2d 1151 – Ill: Appellate Court, 1st Dist., 6th Div. 1992

If ANY seemingly dangerous behavior is credibly testified to, the order of protection is getting issued against the respondent. The only way to effectively defend against a petition for an order of protection is to deny the behavior…and that is impossible if the petitioner sustained an injury.

Of course, if blows were exchanged, it will be tempting to say that any “abuse” was actually self-defense.

Illinois courts are only allowed to consider self-defense in regards to petitions for orders of protection in very limited circumstances

“Denial of any remedy shall not be based, in whole or in part, on evidence that:(1) Respondent has cause for any use of force, unless that cause satisfies the standards for justifiable use of force provided by Article 7 of the Criminal Code of 2012” 750 ILCS 60/214(e)(1) (emphasis mine)

In Illinois, self-defense for orders of protection must meet the same strict standards that criminal defendants use when they invoke self-defense.

Ҥ 7-1. Use of force in defense of person.

(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of “aggressor” set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.” 720 ILCS 5/7-1. (emphasis mine)

“Self-defense includes the following elements: (1) unlawful force threatened against a person, (2) the person threatened was not the aggressor, (3) the danger of harm was imminent, (4) the use of force was necessary, (5) the person threatened actually and subjectively believed a danger existed that required the use of force applied, and (6) the beliefs of the person threatened were objectively reasonable.” People v. Gray, 2017 IL 120958, ¶ 50.

Most self-defense claims will fail because “the use of force” was not necessary. Courts will more likely find that any use of force was not to prevent unlawful force but, rather, was in “retaliation, not…an effort to defend himself from an imminent threat of unlawful force.” Richardson v. Booker, No. 1-21-1055, 16 (Ill. App. Ct. 2022)

The argument “well they started it, first” can sway the court if there is sufficient evidence that the alleged victim had a history of aggressive and violent behavior.

“[W]hen the theory of self-defense is raised, the victim’s aggressive and violent character is relevant to show who was the aggressor, and the defendant may show it by appropriate evidence, regardless of when he learned of it. ” People v. Lynch, 104 Ill. 2d 194, 200 (Ill. 1984)

But, wait? Even if the abuser was retaliation. Doesn’t that mean the petitioner was the first to abuse…and therefore the order of protection should be against the petitioner NOT the respondent? Probably…but the petitioner got to the courthouse first and filed the order of protection before the respondent.

You can file your own petition for an order of protection but you still have to defend against the order of protection that was filed against you.

“Correlative separate orders of protection undermine the purposes of this Act and are prohibited unless both parties have properly filed written pleadings…In these cases, the court shall hear relevant evidence, make findings, and issue separate orders…The fact that correlative separate orders are issued shall not be a sufficient basis to deny any remedy to petitioner or to prove that the parties are equally at fault or equally endangered.” 750 ILCS 60/215

You both have to go to hearing on each of your petitions. You cannot agree to both have orders of protections against you both.

“Mutual orders of protection are prohibited.” 750 ILCS 60/215

If you really both agree to stay away from each other, you can enter into a mutual stay away order (which I almost always recommend as an alternative to an order of protection).

If you are reading this, you obviously had a really terrible experience…and now you are accused of being the bad guy. That is terrible…and you know it will get worse before it gets better. Contact my Chicago, Illinois family law firm today to speak with an experienced Illinois family law attorney.

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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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