People break up. But, often one person is not ready for the break up. It is one thing to call or text a former partner to get their attention. It is, frankly, extreme to appear in person at that person’s residence or workplace when uninvited.
A polite “no thank you” will, hopefully, be observed and respected by the former partner who appeared at your home or workplace. If not, a call to the police will drive the point home.
Afterwards, a petition for an order of protection can be filed to emphasize that you do NOT want to see the person again and provide a criminal penalty if your former partner appears at your home or workplace.
Orders of Protection And Trespassing In Illinois
An order of protection in Illinois uses backwards-looking logic. Were you abused? Then you need an order of protection.
“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
Orders of protection are only for family, household members and former relationships. The Illinois Domestic Violence Act defines a “[f]amily or household member” to include “persons who have or have had a dating or engagement relationship.” 750 ILCS 60/103(6)
“’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1)
Trespassing will almost certainly qualify as “abuse” for the purposes of obtaining an order of protection in Illinois because trespassing is defined as a form of harassment.
“Harassment” means knowing conduct which is not necessary to accomplish a purpose that 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 an incident or pattern of domestic violence; or(vi) threatening physical force, confinement or restraint on one or more occasions.” 750 ILCS 60/103(7)
Upon a finding of harassment, an Illinois court can “[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)
Once the order of protection is entered with specific prohibitions for the respondent to NOT be present at specific locations, any violation of that order of protection can be enforced later in court.
“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)
A criminal court or a civil court can punish violations of orders of protection.
“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)
But, wait! With only an order of protection, a former partner can show up at your house, cause a ruckus, be told to go home without any real penalty….so long as they don’t do it again.
Trespassing on its own is a crime and can be prosecuted as such on the first instance without the cat-and-mouse dance required by an order of protection.
Trespassing In Illinois
It is illegal to go into someone else’s building without permission. It is illegal to be on someone’s land when they have told you that you are not welcome there.
“A person commits criminal trespass to real property when he or she:(1) knowingly and without lawful authority enters or remains within or on a building;(2) enters upon the land of another, after receiving, prior to the entry, notice from the owner or occupant that the entry is forbidden;(3) remains upon the land of another, after receiving notice from the owner or occupant to depart” 720 ILCS 5/21-3(a)
The notice required for a trespasser to know they are not welcome is simply telling them. A simple “Scram!” should suffice.
“A person has received notice from the owner or occupant within the meaning of Subsection (a) if he or she has been notified personally, either orally or in writing” 720 ILCS 5/21-3
More specifically, you can’t be in someone’s residence without permission. It is not enough to just not be told you could not be in their house or apartment.
“A person commits criminal trespass to a residence when, without authority, he or she knowingly enters or remains within any residence, including a house trailer that is the dwelling place of another.(2) A person commits criminal trespass to a residence when, without authority, he or she knowingly enters the residence of another and knows or has reason to know that one or more persons is present or he or she knowingly enters the residence of another and remains in the residence after he or she knows or has reason to know that one or more persons is present.” 720 ILCS 5/19-4(a)
Even if you thought you had the right to be at the residence (but you were wrong), you have still committed the crime of criminal trespass to a residence.
“[T]he statute is clear in that it did not require the State to prove that defendant knew he lacked authority to enter the residence.” People v. Davis, 968 NE 2d 682 – Ill: Appellate Court, 2nd Dist. 2012
If someone is trespassing on your property and especially in your residence, call the police!
Trespassing is a Class A misdemeanor under both statutes.
Defenses To Trespass In Illinois
Former partners are not shadowy strangers who simply barge into a house.
Former partners, however, are often on a house’s deed or lease. This gives them “lawful authority [to] enter[] or remain[] within or on [the] building.” 720 ILCS 5/21-3(a)(1)
Former partners may still be living on the land or in the residence they are accused of trespassing upon.
“This Section [720 ILCS 5/21-3] does not apply to any person…living on the land with permission of the owner…nor to anyone living on the land at the request of, or by occupancy, leasing or other agreement or arrangement with the owner or his or her agent, nor to anyone invited by…[an] other person so living on the land to visit him or her at the place he is so living upon the land.” 720 ILCS 5/21-3(c)
Former partners also know the other people who live in the home. Those other residents may even be the former partner’s children. Those other people may have invited the so-called trespasser into the home.
“[720 ILCS 5/21-3(a)] provides that notice must come from an owner or occupier. [But} [i]t does not preclude one invited person from inviting another person onto the property when properly authorized to do so.” People v. Carroll, 751 NE 2d 44 – Ill: Appellate Court, 2nd Dist. 2001
Any of these defenses would qualify as an “affirmative defense” to trespass.
An affirmative defense is “a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are true.” Black’s Law Dictionary (11th ed. 2019)
It is pretty easy to raise an affirmative defense and, once, raised, the prosecution must prove the affirmative defense is not applicable.
“If an affirmative defense is raised, the State must disprove the affirmative defense beyond a reasonable doubt in addition to proving the other elements of the offense. A defendant must present sufficient evidence to raise an affirmative defense. “Sufficient evidence” has been described as “slight” or “some” evidence to support the affirmative defense.” People v. Washington, 762 NE 2d 698 – Ill: Appellate Court, 4th Dist. 2002 (citations omitted)
Perhaps this is why most former romantic partners do not pursue trespass charges as they can so easily devolve into “he said/she said” situations where the prosecution doesn’t have the resources to disprove affirmative defenses.
If you are divorcing someone or have had a bad break-up to the point where your former partner is trespassing on your property or you are being accused of trespassing on your former partner’s property, call my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.
