A. INTRODUCTION

It is against the law for anyone to beat or physically hurt another person, no matter how the two people are related. There are a number of legal steps you can take to protect yourself from further abuse, to bring the abuser to justice, to end your relationship with him, to get custody of your children, and to obtain support for yourself and your children. This chapter will briefly explain how to do these things.

There are basically two kinds of courts: criminal court and civil court.

Criminal court deals with people who have committed crimes, such as assault and battery*. The police can arrest anyone who commits a crime, and the Peoria County State's Attorney prosecutes the case without charge. Although it is not required, in most cases the victim must sign a criminal complaint ("press charges") and must testify in court about the crime which took place. There must always be sufficient evidence on which to base charges. If the offender pleads guilty or is convicted by the judge, he can be sentenced to supervision, probation, jail, and/or payment of a fine (these terms are explained below). Jail is very unlikely unless the offender has a previous criminal record or the crime is a very serious one.

Civil court handles non-criminal matters such as divorce and child custody. It can order people to do or not to do certain things, such as to pay child support. If its orders are not obeyed, the judge can hold the violator in "contempt of court" and either fine or jail him.

There is a law, called the Illinois Domestic Violence Act, which is designed to protect and assist domestic violence victims. It creates a legal remedy, called an Order of Protection, which is obtainable in either criminal or civil court. The law also states what law enforcement officers must do to help and protect victims.

• Assault: Placing another in reasonable fear of receiving a battery
• Battery: Causing another bodily harm, or touching them in an insulting or provoking nature. without legal justification

The following three sections describe in greater detail the Illinois Domestic Violence Act, how to press criminal charges, and relief available through civil court. Before taking any legal action, it is important to understand the advantages and disadvantages of each alternative course. Also, it is important to know that the legal process can be a very lengthy, confusing and frustrating one. However, you are entitled to its protection and assistance, and the threat of arrest or being in contempt of court can be a very effective way to prevent the abuser from continuing his violence toward you.

B. ILLINOIS DOMESTIC VIOLENCE ACT

The Illinois Domestic Violence Act (IDVA) recognizes domestic violence as a serious crime. It creates a legal remedy for domestic violence victims called an Order of Protection and requires that law enforcement officers provide specific types of assistance to victims.

1. What is an Order of Protection?

An Order of Protection is a written court order, signed by a judge, which requires an abusive household or family member to do or not to do certain things. The judge can order any or all of the following remedies:

1. 1. Forbid any further abuse, neglect or exploitation.
2. 2. Order the abuser not to enter the shared home for a period of time. This is often called a vacate order or an exclusive possession order.
3. 3. Order the abuser to stay away from person or persons protected by the order or prohibit the abuser from entering or remaining in a specified place.
4. 4. Require or recommend counseling for the abuser.
5. 5. Award physical care and possession of minor child.
6. 6. Award temporary legal custody.
7. 7. Determine visitation.
8. 8. Prohibit the abuser from removing the child from the state or concealing the child within the state.
9. 9. Order the abuser to appear in court alone or with the child.
10. 10. Grant possession of personal property to the victim.
11. 11. Forbid the abuser from taking, transferring or destroying the victim's property.
12. 12. Order the abuser to pay temporary support to the victim and/or children.
13. 13. Order the abuser to pay the victim for losses suffered as a direct result of the abuse (medical and dental expenses, repair/ replacement of damaged property, attorney's fees, court cost, etc.).
14. 14. Prohibit the abuser from entering or remaining in the residence or household while the abuser is under the influence of alcohol or drugs.
15. 15. Prohibit the abuser access to school records if the abuser is prohibited contact with a minor child.
16. 16. Order the abuser to reimburse a shelter providing temporary shelter and counseling to petitioner.
17. 17. Order injunctive relief as necessary or appropriate to prevent further abuse.
18.  

If the abuser violates remedy 1, 2, 3 or 14 listed above, he has committed the crime of violation of an Order of Protection, a Class A misdemeanor, punishable by up to one year in jail or a fine of up to $1,000. Such severe punishment is unlikely. However, the abuser can be immediately arrested if he repeats the abuse or if he enters the home after he has been ordered not to do so.

If the abuser violates remedies 6, 8 or Misted above, he has committed the crime of child abduction, a Class 4 felony which is punishable by 1-3 years imprisonment or a fine of up to $10,000.

If the abuser violates any of the other remedies, he can be found in contempt of court, which can also result in a fine or imprisonment. He will not be arrested (except in unusual circumstances), but he can be ordered before the judge to explain his actions.

2. Who Can Get and Order of Protection?

A petition for an Order of Protection may be filed by a person who has been abused by a family or household member or by any person on behalf of a minor child or adult with disabilities abused by a family or household member.  Spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, and persons with disabilities and their personal assistants, can all get an Order of Protection. In Peoria, go to the Peoria Courthouse's Office of the Circuit Clerk to receive an order of protection (672-6074).

In addition, any person may file an Order of Protection on behalf of a high-risk adult with disabilities who has been abused, neglected or exploited by a family or household member.

In the case of high-risk adults with disabilities, "family or household member" includes any person who has the responsibility for a high-risk adult as a result of a family relationship or who has assumed responsibility for all or a portion of the care of a high-risk adult with disabilities by court order, by contract, or voluntarily.

High risk adults with disabilities are particularly vulnerable to crimes of domestic violence because of impairments in their ability to seek or obtain protection. It is a serious problem which takes many forms, including physical abuse, sexual abuse, neglect and exploitation.

A) What is an adult with disabilities?

An "adult with disabilities" means an elder adult with disabilities or a high-risk adult with disabilities. A person may be an adult with disabilities even though he or she has never been adjudicated an incompetent adult. However, no proceeding may continue on behalf of an adult with disabilities over the adult's objection, unless such proceeding is approved by his or her legal guardian.

B) What is an elder adult with disabilities?

An "elder" adult with disabilities means an adult prevented by advanced age from taking appropriate action to protect himself or herself from abuse by a family or household member.

C) What is a high-risk adult with disabilities?

A "high-risk" adult with disabilities means a person aged 18 or over whose physical and/or mental disability impairs his or her ability to seek or obtain protection from abuse, neglect or exploitation.

3. What is Abuse?

Abuse means physical abuse, harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation.

4. What is Neglect?

Neglect means omitting or failing to do what a reasonable person would do under the circumstances. It includes failure to provide food, shelter, clothing and personal hygiene to a dependent person who need such assistance; failure to take care of the needs of the dependent person; and the failure to protect the dependent person from health and safety hazards. However, the law does not create a duty to provide caretaker services; therefore, if a person has never held himself or herself out as a caretaker this does not apply.

5. What is Exploitation?

Exploitation means improperly using the financial or other resources of one person for the profit or benefit of another. It includes taking another's assets or resources by undue influence, deception or fraud.

6. How Can You Get an Order of Protection?

Any person who is abused by a household or family member can ask the court for an Order of Protection, and anyone can ask one for a child, an elderly person, or someone who is unable because of a disability to ask for one personally. The victim or person requesting the Order should have enough evidence of abuse to convince the judge it has taken place. Evidence includes such things as:

1. 1) The victim's statements as to the abuse inflicted;
2. 2) Hospital or doctor's reports of injuries;
3. 3) Dated photographs of injuries;
4. 4) Police reports;
5. 5) Statements from other family members, neighbors or others who saw or heard the abuse;
6. 6) Weapons used;
7. 7) Torn or bloody clothing or broken household items; and
8. 8) Pictures of the house or room in disarray.
9.  

The more evidence you have the more likely it is the judge will believe you and grant you the legal remedies you need.

7. Where Can You Get an Order of Protection?

An Order of Protection can be obtained in three ways:

• In criminal court, if you press criminal charges against the abuser. This means that you want the state to prosecute the abuser for the commission of a crime, such as assault or battery. If the abuser has not been arrested, go to the Peoria County State's Attorney's office to file charges. The State's Attorney is located in the Peoria Courthouse located at 324 Main Street. While there, tell the State's Attorney that you also want an Order of Protection. It may be difficult to get any of the child custody or economic support remedies in criminal court
• In civil court in connection with such actions as divorce, separation, child support or parentage actions. If you are filing for divorce, ask your attorney to file for an Order of Protection as well.
• In civil court as an action by itself. This means that you want the Order of Protection in order to have the legal system help stop the violence against you. However, you do not want to press criminal charges or file for divorce or separation (see below for more information about civil court and finding a lawyer).

X. How Long Does an Order of Protection Last?

There are three kinds of Orders of Protection:

• Emergency: An emergency Order may be obtained just on your testimony and court appearance; that is, the abuser is not there to tell his side of the story. Before issuing an emergency Order of Protection, the judge must find that there is good cause to grant it without first notifying the abuser, and the judge just apply different standards before granting individual remedies (for example, that you would likely be harmed if the abuser knew you were seeking legal protection). Emergency Orders of Protection can last for not less 14 days nor more than 21 days and can be extended one or more times for an additional 14-21 day period. The judge can award you "physical care" or possession of your child but you cannot obtain legal custody in an Emergency Order. However, the Order can contain all the remedies except those ordering the abuser to attend counseling or to pay any money.
• Interim: An interim Order of Protection can be obtained in cases where the abuser has been notified of the court hearing but has not necessarily been personally served with all the legal papers. Interim Orders of Protection are good for up to 30 days, and can be extended one or more times. Interim Orders can contain all the remedies, although the ones ordering the abuser to attending counseling or to pay money are available only when the abuser has been personally served or has filed a general appearance with the court. In other words, the abuser has received a copy of your written request for the Order and has indicated to the court he know of the hearing and plans t be there.
• Plenary: A plenary, or full Order of Protection, is available when all the legal requirements of notice, service, etc. for the abuser have been satisfied. All the remedies can be requested. A plenary Order of Protection can last for up to two years from the date the judge signs it, and it can be extended by the judge for up to two years longer.

Please note that it is always up to the judge how long any particular Order will last. For example, if the abuser is convicted of a crime and sentenced to six months Probation. the judge might issue a plenary order to last for six months only.

9. What To Do After You Have an Order of Protection

If the judge in criminal or civil court grants you an Order of Protection, get several copies made and keep one with you at all times. If the abuser violates it by abusing you again, or by coming onto your property when the Order forbids him to do so, call the police. Show them the Order. If you do not have a copy to show them, they can verify its existence through their police radio. If there is proof of the Order's violation, they should arrest him for a Class A misdemeanor or a Class 4 felony (for child abduction).

If you decide you want to go back with your husband or partner after the court has issued an Order of Protection forbidding his entry into your home, it is important that you go back to the court to modify the Order. Request that this particular remedy (the vacate order) be stricken, but that the remedies forbidding further abuse of you or ordering him to attend counseling remain in effect. If you do not modify the Order and your abuser violates it by being in the house with your permission, the police and the court may be less willing to extend their protection to you again in the future.

10. Law Enforcement Officer's Responsibilities

When police officers or sheriff's deputies respond to a domestic violence call at your home, the Illinois Domestic Violence Act requires that they take all reasonable steps to prevent any further abuse of you, including:

• Arresting the abuser when the officer has enough evidence to believe that a crime has been committed (battery, etc.). It is not required that you sign a complaint; however, many officers will be unwilling to make an arrest if you are unlikely to testify in court. It is also not necessary for the officers to have seen the actual offense so long as there is sufficient "probable cause"(visible injuries or other evidence of violence). The fact that you are married to or living with the abuser should not affect whether or not he is arrested.
• Assisting you by providing or arranging transportation for you to a hospital, if necessary, or to a safe place or shelter. The police are also required to accompany you back to your home after you've left to protect you while you collect some necessary personal belongings (clothing for you and the children, medicines, legal paper, etc).
• Advising you of your right under the law, including how to press charges if they have not arrested the abuser. The police are required to give you a written summary of your legal rights, which is to be printed in both English and Spanish. The officer is to sign the paper and write down his or her badge number, and to give you one referral to a social service agency.
• Reporting on every legitimate allegation of domestic violence. This means that the officers must fill out a police report every time they respond to a domestic violence call. The report must contain your statement about whether and how often you have been abused by the same person in the past. If possible, it is a good idea to get a copy of the report or the report number so that you can use it as evidence if you decide to press criminal charges or file for an Order of Protection.

C. CRIMINAL COURT

1. Domestic Battery

If any family or household member causes bodily harm to you or makes physical contact of an insulting or provoking nature, that is a domestic battery

The offense of domestic battery is a Class A Misdemeanor which means the abuser faces a fine of up to $1,000 and/or a jail sentence of up to 364 days.

An abuser found guilty of a second or subsequent violation will receive a mandatory minimum 48 consecutive hour jail sentence, which is not subject to suspension or other alteration.

Interfering with the reporting of domestic violence (Sec. 12‑6.3)

(a) A person commits the offense of interfering with the reporting of domestic violence when, after having committed an act of domestic violence, he or she prevents or attempts to prevent the victim of or a witness to the act of domestic violence from calling a 9‑1‑1 emergency telephone system, obtaining medical assistance, or making a report to any law enforcement official.

(b) For the purposes of this Section, the following terms shall have the indicated meanings:

(1) "Domestic violence" shall have the meaning

(2) "Family or household members" shall have the meaning ascribed to it in Section 112A‑3 of the Code of Criminal Procedure of 1963.

(c) Sentence. Interfering with the reporting of domestic violence is a Class A misdemeanor.

(Source: P.A. 90‑118, eff. 1‑1‑98.)

2. Aggravated Battery to a Pregnant Woman

If you are pregnant and an abuser intentionally harms you, the offense becomes a Class 3 Felony punishable by a prison sentence of between 2 and 5 years and/or a fine of up to $10,000.

3. Stalking A

The abuser can be charged with stalking, if the abuser threatens you in such a way that you are afraid of death, bodily harm, sexual assault, confinement, or restraint, and on at least two separate occasions the abuser also does one of the following:

1) Follows you, or

2) Places you under surveillance by remaining present outside your school, place of employment, vehicle, other place occupied by you, or residence other than the abuser's residence

Stalking is a Class 4 Felony.

4. Aggravated Stalking

An abuser commits aggravated stalking when he or she, in conjunction with committing the offense of stalking also does any of the following: 1) Causes bodily harm to you, or 2) Confines or restrains you, or 3) Violates an Order of Protection.

Aggravated stalking is a Class 3 Felony punishable by a prison sentence of between 2 and 5 year and/or a fine up to $10,000.

5. Pressing Charges

If you want to charge the abuser with the commission of a crime, such as battery, either tell the police responding to your call that you want him arrested, or go to the Peoria State's Attorney's office located in Peoria Courthouse. In Peoria, you do not need to go to the Police Department before going to the State's Attorney.

Find out what time domestic violence cases are taken in the State's Attorney's office. If no specific time is set, be there the first thing in the morning no more than one week after the beating. Tell them what happened, and that you want to sign a complaint to press charges. Take with you as much evidence as possible (medical records, photographs, etc.), including the number of the police report. You need to have the police report number in order to file a complaint. Do not ask for a peace bond. Peace bonds are virtually useless. Do not sign a complaint for disorderly conduct as it is likely to be dismissed.

If you want an emergency, interim or plenary Order of Protection, ask the State's Attorney to prepare a petition for you. Many State's Attorneys will ask for the protection remedies but not the child custody or support remedies.

After you sign the complaint, one of two things should happen:

1. 1) A summons will be sent to the abuser ordering him to come to court, or
2. 2) A warrant will be issued for his arrest. If a summons is sent, be sure to note the date, time and place of the trial. If a warrant is issued, ask for the phone number and location of the police department or station that will be handling it. Call them to find out when they have the warrant on file and to request that they find the abuser and arrest him. You may have to call there several times.

You may have to be persistent and convince the State's Attorney of your willingness to follow through in order to press criminal charges. However, studies have shown that battered women who seek help through the legal system are less likely to be repeat victims, because abusers who face arrest are not likely to continue the violence. Remember, however, that it is always the State's Attorney's decision whether to go forward with a case.

6. The Criminal Court Hearing

Criminal court can be a scary and frustrating experience, so try to bring a friend or advocate when you go to court. The State's Attorney, or the Assistant State's Attorney (ASA), will prosecute the charges against the abuser. She/he will act as your attorney; you do not need a private lawyer in criminal court.

Arrive early. Bring witnesses, medical reports, and pictures of your injuries. If you have not already done so, try to talk to the ASA assigned to your case before the trial begins. If you cannot find the ASA, step up to the bench as soon as you hear your case called ("State" [or people/ vs. Your Abuser"). Tell the ASA that you are the complaining witness. Ask her or him to have the case "passed" (that is, postponed for a few minutes) so that you can discuss it.

When you talk to the ASA, time will be rather short. Be ready to explain the most important facts about the beating:

• Date, time and place of beating.
• Where on you body did he hit you; what did he hit you with? (Was there a weapon?)
• Bruises, cuts, redness, soreness, swelling, or other injury which resulted.
• Medical attention you received, if any.
• Police involvement, if any. (Were they called? Did they come? What did they do?)
• Threats made to you by the abuser.
• Property damage, if any.
• Past history of beating, of calls to the police, and of medical attention.
• Show the ASA any photos, medical record, torn clothing or other evidence and tell the ASA if you have any witnesses.

The case may be continued to a later date at least once (possibly set several times). Tell the ASA that if the case is continued, you want your Order of Protection, if necessary, to be extended also. Take you evidence ~ with you each time you go to court.

On the day your case is heard, you should be ready to ask the ASA for the remedy you want:

Probation. The abuser must first be convicted; then he has to report periodically to a probation officer. He can also be ordered to attend counseling.

Jail is very unlikely unless the abuse was severe, or the abuser has other convictions on his record. If you want the abuser to go to jail because that is the only way you will be safe, tell the ASA, preferably the day before you go to court.

Fines are another possible form of sentence.

Also ask for an extension of modification of you Order of Protection when appropriate. When your case is heard, you will be questioned about what took place. Be as specific as you can. Try to remain calm and respectful.

Judges and State's Attorneys should regard your beating as a crime and should treat you seriously. If they do not, you have a right to feel angry and frustrated. But even though you may not be satisfies with the legal results, you have exposed the abuser and his criminal behavior. You have shown him that you know he has no right to abuse you. You have established a record which may be useful in case of further abuses Finally, as noted above, you may have decreased your chances of being assaulted again just by pursuing legal action.

7. Complaining About and Commending Criminal Justice Officials

If you feel that the police did not comply with the law or treated you inappropriately, you can complain by reporting them to their superiors (for example, the police chief or sheriff, their captain, etc.). You do not always have to have their names or badge numbers but it is very helpful if you do. If you have a complaint, please also call or write the Illinois Coalition Against Domestic Violence (the address and telephone number are on the last page of this book). If you call long distance, the Coalition can call you back.

If a warrant of fleer or Assistant State's Attorney did not comply with the law or treated you inappropriately, report it to the State's Attorney and please write or call the Coalition as above.

If you have a complaint about a judge's conduct, report it to the Judicial Inquiry Board, 100 West Randolph, Room 14-500, Chicago, IL 60601. Phone 312/814-5554 or 800/227-9429. Again, please contact ICADV as well.

If you were treated especially well by a law enforcement officer, someone in the State's Attorney's office, or by a judge or other court Official, it would mean a lot if you sent a letter of thanks for their assistance. Send a carbon copy to their superior and please send a copy to the Illinois Coalition Against Domestic Violence. Such positive feedback will encourage all officials to treat battered women with the dignity and respect they deserve.

D. CIVIL COURT

1. When to Use

Civil courts settle disputes which are non-criminal, and make decisions about legal relationships such as marriage.

If you do not want to press criminal charges against the abuser, but do want and need legal protection, you can ask for an Order of Protection in civil court. If your husband or partner violates either the remedy against further abuse or the one barring him from the home, he can be arrested. If he complies with the Order, however, he will have no criminal record and you will be protected. In addition, it is much easier to get the remedies dealing with child custody and monetary support in civil court rather than criminal court. You do not have to file for divorce or separation, or even be married to the abuser, to ask for an Order of Protection.

If you do wish to become legally separated or divorce, you must do so through civil court. You can ask for an Order of Protection at the same time you file for divorce or separation.

The major drawback to using the civil rather than criminal court is that in most cases you will need a private attorney, which can be expensive (please see the next section about how to find one).

It is possible to represent yourself in court without a lawyer, but it can be a very confusing and difficult process. Clerks of the court are now required to provide simplified forms and clerical assistance to domestic violence victims who do not have attorneys. However, if you are getting divorce, in most cases you should have a lawyer.

2. Finding a Lawyer

If you are receiving Public Aid or have very little money, you may be eligible for free legal assistance. Call one of the agencies listed in the back of this book and ask where you can receive free legal help in your area, or check under Attorneys, Legal Assistance Foundation in the Yellow Pages of the telephone book

When looking for lawyers, it is a good idea to ask questions about their services before hiring them.

Here are some suggestions:

• How much do you charge for the first meeting; how much do you charge for each additional hour?
• What is your minimum fee for my kind of case? What is covered by your fee?
• How many negotiation sessions are included? How many court appearances are included?
• What is your rate for appearance in court?
• Do you have a written retainer agreement that I can sign and a copy for me to keep?
• Can you suggest a family counselor, or social worker, or psychologist?
• Will you take my case and ask the court to order the abuser to pay your fees (possible in an Order of Protection)?

After telling the lawyer the facts of your case, ask:

• Do you know about the Illinois Domestic Violence Act?
• How would an Order of Protection help me? What should I do to help you with my case? What do you expect of me?
• What papers, document and witnesses should I assemble for you?

If you do not like the first attorney, do not be afraid to shop around. Decide who will represent you before you start the case. People who change lawyers more than once after the start of a lawsuit hurt their chances of being believed by the judge.

There are many lawyers. If you take the time to choose carefully, you should be able to find one you trust and respect. Often domestic violence programs know of attorneys who are sensitive and knowledgeable about domestic violence and the Illinois Domestic Violence Act, and who will arrange a payment plan for you.