A divorce is the end of a relationship. For some people, the relationship is never over. The continuous contact with an ex-spouse can be described as stalking.
What is stalking in an Illinois divorce? How can you accuse an ex of stalking you within an Illinois divorce.
Technically, There Is No Stalking In An Illinois Divorce
Illinois has a robust Stalking No Contact Order Act. “Under the [Stalking No Contact Order] Act, a victim of stalking may file a civil petition in the trial court for a stalking no contact order requiring the offender respondent to stay away from the victim petitioner and any protected third parties.” Lovelace v. TREND, 2021 IL App (3d) 200253 – Ill: Appellate Court, 3rd Dist. 2021 (Note this is a non-binding Rule 23 case)
The Stalking No Contact Order Act provides “a remedy for victims who have safety fears or emotional distress as a result of stalking.” McNally v. Bredemann, 2015 IL App (1st) 134048, ¶ 10 (Internal quotation marks omitted.)
The Stalking No Contact Order Act is only for unmarried people who aren’t in a relationship with the person they are stalking.
“A petition for a stalking no contact order may be filed when relief is not available to the petitioner under the Illinois Domestic Violence Act.” 740 ILCS 21/15
The Illinois Domestic Violence Act is for “any person abused by a family or household member” 750 ILCS 60/201(a)(i)
“Family or household members” include spouses [and/or] former spouses” 750 ILCS 60/103(6)
If stalking is happening between two spouses or former spouses, a petition for order of protection must be filed NOT a petition for a stalking no contact order.
There will be no question as to whether you are or were married. The only question is whether the stalking amounts to “abuse” under the Illinois Domestic Violence Act.
The definition of abuse under the Illinois Domestic Relations Act is extremely broad and any version of stalking would clearly qualify as abuse.
“”Abuse” means…harassment” 725 ILCS 5/112A-3(b)(1)
““Harassment” means knowing conduct which is not necessary to accomplish a purpose which is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:
(i) creating a disturbance at petitioner’s place of employment or school;
(ii) repeatedly telephoning petitioner’s place of employment, home or residence;
(iii) repeatedly following petitioner about in a public place or places;
(iv) repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner’s windows;
(v) improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner’s from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor child from petitioner, or making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing from an incident or pattern of domestic violence; or
(vi) threatening physical force, confinement or restraint on one or more occasions.” 725 ILCS 5/112A-3(b)(4)
An Order Of Protection Specifically Forbids Stalking In Illinois
“The remedies to be included in an order of protection shall be determined…as appropriate
…
Prohibition 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, as defined in this Act, or stalking of the petitioner, as defined in Section 12-7.3 of the Criminal Code of 2012, if such abuse, neglect, exploitation, or stalking has occurred or otherwise appears likely to occur if not prohibited.” 750 ILCS 60/214(b)(1)
An order of protection does not punish stalking per se. An order of protection makes stalking punishable if the stalking occurs in the future as harassment (which is very loosely defined) or if the stalking matches the criminal definition of stalking.
“(a) A person commits stalking when he or she knowingly engages in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to:(1) fear for his or her safety or the safety of a third person; or(2) suffer other emotional distress.(a-3) A person commits stalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions follows another person or places the person under surveillance or any combination thereof and:(1) at any time transmits a threat of immediate or future bodily harm, sexual assault, confinement or restraint and the threat is directed towards that person or a family member of that person; or(2) places that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement or restraint to or of that person or a family member of that person.(a-5) A person commits stalking when he or she has previously been convicted of stalking another person and knowingly and without lawful justification on one occasion:(1) follows that same person or places that same person under surveillance; and(2) transmits a threat of immediate or future bodily harm, sexual assault, confinement or restraint to that person or a family member of that person.(a-7) A person commits stalking when he or she knowingly makes threats that are a part of a course of conduct and is aware of the threatening nature of his or her speech.” 720 ILCS 5/12-7.3
Furthermore, there is no requirement that the victim of stalking lets the stalker know, “your actions are making me uncomfortable.”
“A victim does not need to contact her stalker to inform him or her that the contact is unwanted…. The focus is on whether the stalker’s behavior would cause a reasonable person to be fearful for her safety or to suffer emotional distress.” Piester v. Escobar, 2015 IL App (3d) 140457, ¶ 12.
A stalker should know better. Additionally, a stalker’s threatening words are not covered by 1st Amendment free speech protections. “When words are a component of the stalking behavior, then
the speech does not fall within constitutional protections.” Henby v. White, 2016 IL App (5th) 140407, ¶ 26
Of course, if the violator of the order of protection committed the crime of stalking, would the violator not be charged separately for the crime of stalking?
Stalking can carry a more serious penalty than violating an order of protection.
“Stalking is a Class 4 felony” 720 ILCS 5/12-7.3(b)
Whereas, a “[v]iolation of an order of protection is a Class A misdemeanor.” 720 ILCS 5/12-3.4
So, why would anyone get an order of protection instead of going to the police to get a charge of stalking?
A person can independently petition for an order of protection and a judge can grant that order of protection based on showing “that petitioner has been abused by a family or household member” 750 ILCS 60/214
“Abuse” can be just about anything and “[t]he standard of proof in such a proceeding is proof by a preponderance of the evidence” 750 ILCS 60/205(a)
Asking a police officer to charge someone with stalking means the police officer will have to agree with you that the behavior is stalking. The criminal charge will then trigger a multitude of substantive and procedural rights the defendant can exercise. Ex: the right to confront their accuser, the right to a jury trial, the standard of a finding of guilt being beyond a reasonable doubt.
It is simply easier to get an order of protection and to prove a subsequent incidence of stalking.
If the stalking persists (it always persists), the penalty is as severe as the independent criminal charge of stalking.
“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
Stalking and Children In Illinois
It is one thing to be a creep…but it is another thing to be a creep to a child. Stalking your own child will not be looked kindly upon in later determinations of parenting time and parenting responsibility.
If a parent wants to see their child, they should follow the current court order governing parenting time, modify the current order for access to the child or file an initial petition for parenting time whereupon “[a] court may order a temporary allocation of parental responsibilities in the child’s best interests before the entry of a final allocation judgment.” 750 ILCS 5/603.5(a)
Trying to see a child without the permission of the other parent or a court order will look like an attempt to “improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner’s from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor child from petitioner, or making a single such threat following an actual or attempted improper removal or concealment” 750 ILCS 60/103(7)
The stalking of a child could easily be perceived as harassment under the above statutory definition, which is a basis for an order of protection.
Furthermore, if anyone can characterize behavior of stalking, a custody battle will soon be at hand which means a Guardian Ad Litem will likely be appointed to investigate all behavior from the merely creepy to legitimate stalking.
If you are being stalked or being accused of stalking, you need an attorney immediately. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
