HB4368 102ND GENERAL ASSEMBLY

LRB102 22606 LNS 31749 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB4368

Introduced 1/5/2022, by Rep. Frances Ann Hurley

SYNOPSIS AS INTRODUCED:

725 ILCS 5/112A-3	from Ch. 38, par. 112A-3
725 ILCS 5/112A-5.1 new
725 ILCS 5/112A-21	from Ch. 38, par. 112A-21
750 ILCS 60/103	from Ch. 40, par. 2311-3
750 ILCS 60/202.5 new
750 ILCS 60/221	from Ch. 40, par. 2312-21

Amends the Protective Orders Article of the Code of Criminal Procedure of 1963 and the Illinois Domestic Violence Act of 1986. Includes coercive control behavior in the definition of "abuse". Defines "coercive control behavior" as a pattern of behavior that unreasonably interferes with a person's free will and personal liberty. Provides that if the court finds that a pattern of frivolous and intentionally fabricated pleadings or motions are filed by one party, the court shall sanction the party in an appropriate manner to allow the proceedings to continue without undue delay or obstruction by the party filing the pleadings. Effective immediately.

A BILL FOR

AN ACT concerning domestic violence.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Criminal Procedure of 1963 is amended by changing Sections 112A-3 and 112A-21 and by adding Section 112A-5.1 as follows:

(725 ILCS 5/112A-3) (from Ch. 38, par. 112A-3)

Sec. 112A-3. Definitions.

(a) In this Article:

"Advocate" means a person whose communications with the victim are privileged under Section 8-802.1 or 8-802.2 of the Code of Civil Procedure or Section 227 of the Illinois Domestic Violence Act of 1986.

"Named victim" means the person named as the victim in the delinquency petition or criminal prosecution.

"Protective order" means a domestic violence order of protection, a civil no contact order, or a stalking no contact order.

(b) For the purposes of domestic violence cases, the following terms shall have the following meanings in this Article:

(1) "Abuse" means physical abuse, harassment, intimidation of a dependent, interference with personal liberty, coercive control behavior, or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.

(2.5) "Coercive control behavior" means a pattern of behavior that unreasonably interferes with a family or household member's free will and personal liberty, including, but not limited to:

(i) isolating the family or household member from friends, relatives, or other sources of support;

(ii) depriving the family or household member of basic necessities;

(iii) controlling, regulating, or monitoring the family or household member's movements, communications, daily behavior, finances, economic resources, or access to services;

(iv) compelling the family or household member by force, threat of force, or intimidation, including, but not limited to, threats based on actual or suspected immigration status, to engage in conduct from which the family or household member has a right to abstain, or abstain from conduct in which the family or household member has a right to engage;

(v) committing or threatening to commit cruelty to animals that intimidates the family or household member; and

(vi) forced sex acts, or threats of a sexual nature, including, but not limited to, threatened acts of sexual conduct, threats based on a person's sexuality, or threats to release sexual images.

(2) "Domestic violence" means abuse as described in paragraph (1) of this subsection (b).

(3) "Family or household members" include 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, persons with disabilities and their personal assistants, and caregivers as defined in subsection (e) of Section 12-4.4a of the Criminal Code of 2012. For purposes of this paragraph (3), neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed to constitute a dating relationship.

(4) "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.

(5) "Interference with personal liberty" means committing or threatening physical abuse, harassment, intimidation or willful deprivation so as to compel another to engage in conduct from which she or he has a right to abstain or to refrain from conduct in which she or he has a right to engage.

(6) "Intimidation of a dependent" means subjecting a person who is dependent because of age, health, or disability to participation in or the witnessing of: physical force against another or physical confinement or restraint of another which constitutes physical abuse as defined in this Article, regardless of whether the abused person is a family or household member.

(7) "Order of protection" or "domestic violence order of protection" means an ex parte or final order, granted pursuant to this Article, which includes any or all of the remedies authorized by Section 112A-14 of this Code.

(8) "Petitioner" may mean not only any named petitioner for the domestic violence order of protection and any named victim of abuse on whose behalf the petition is brought, but also any other person protected by this Article.

(9) "Physical abuse" includes sexual abuse and means any of the following:

(i) knowing or reckless use of physical force, confinement or restraint;

(ii) knowing, repeated and unnecessary sleep deprivation; or

(iii) knowing or reckless conduct which creates an immediate risk of physical harm.

(9.3) "Respondent" in a petition for a domestic violence order of protection means the defendant.

(9.5) "Stay away" means for the respondent to refrain from both physical presence and nonphysical contact with the petitioner whether direct, indirect (including, but not limited to, telephone calls, mail, email, faxes, and written notes), or through third parties who may or may not know about the domestic violence order of protection.

(10) "Willful deprivation" means wilfully denying a person who because of age, health or disability requires medication, medical care, shelter, accessible shelter or services, food, therapeutic device, or other physical assistance, and thereby exposing that person to the risk of physical, mental or emotional harm, except with regard to medical care and treatment when such dependent person has expressed the intent to forgo such medical care or treatment. This paragraph (10) does not create any new affirmative duty to provide support to dependent persons.

(c) For the purposes of cases involving sexual offenses, the following terms shall have the following meanings in this Article:

(1) "Civil no contact order" means an ex parte or final order granted under this Article, which includes a remedy authorized by Section 112A-14.5 of this Code.

(2) "Family or household members" include spouses, parents, children, stepchildren, and persons who share a common dwelling.

(3) "Non-consensual" means a lack of freely given agreement.

(4) "Petitioner" means not only any named petitioner for the civil no contact order and any named victim of non-consensual sexual conduct or non-consensual sexual penetration on whose behalf the petition is brought, but includes any other person sought to be protected under this Article.

(5) "Respondent" in a petition for a civil no contact order means the defendant.

(6) "Sexual conduct" means any intentional or knowing touching or fondling by the petitioner or the respondent, either directly or through clothing, of the sex organs, anus, or breast of the petitioner or the respondent, or any part of the body of a child under 13 years of age, or any transfer or transmission of semen by the respondent upon any part of the clothed or unclothed body of the petitioner, for the purpose of sexual gratification or arousal of the petitioner or the respondent.

(7) "Sexual penetration" means any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including, but not limited to, cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.

(8) "Stay away" means to refrain from both physical presence and nonphysical contact with the petitioner directly, indirectly, or through third parties who may or may not know of the order. "Nonphysical contact" includes, but is not limited to, telephone calls, mail, e-mail, fax, and written notes.

(d) For the purposes of cases involving stalking offenses, the following terms shall have the following meanings in this Article:

(1) "Course of conduct" means 2 or more acts, including, but not limited to, acts in which a respondent directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other contact, or interferes with or damages a person's property or pet. A course of conduct may include contact via electronic communications. The incarceration of a person in a penal institution who commits the course of conduct is not a bar to prosecution.

(2) "Emotional distress" means significant mental suffering, anxiety, or alarm.

(3) "Contact" includes any contact with the victim, that is initiated or continued without the victim's consent, or that is in disregard of the victim's expressed desire that the contact be avoided or discontinued, including, but not limited to, being in the physical presence of the victim; appearing within the sight of the victim; approaching or confronting the victim in a public place or on private property; appearing at the workplace or residence of the victim; entering onto or remaining on property owned, leased, or occupied by the victim; or placing an object on, or delivering an object to, property owned, leased, or occupied by the victim.

(4) "Petitioner" means any named petitioner for the stalking no contact order or any named victim of stalking on whose behalf the petition is brought.

(5) "Reasonable person" means a person in the petitioner's circumstances with the petitioner's knowledge of the respondent and the respondent's prior acts.

(6) "Respondent" in a petition for a civil no contact order means the defendant.

(7) "Stalking" means engaging 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 fear for his or her safety or the safety of a third person or suffer emotional distress. "Stalking" does not include an exercise of the right to free speech or assembly that is otherwise lawful or picketing occurring at the workplace that is otherwise lawful and arises out of a bona fide labor dispute, including any controversy concerning wages, salaries, hours, working conditions or benefits, including health and welfare, sick leave, insurance, and pension or retirement provisions, the making or maintaining of collective bargaining agreements, and the terms to be included in those agreements.

(8) "Stalking no contact order" means an ex parte or final order granted under this Article, which includes a remedy authorized by Section 112A-14.7 of this Code.

(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)

(725 ILCS 5/112A-5.1 new)

Sec. 112A-5.1. Frivolous and intentionally fabricated pleadings or motions. If the court finds that a pattern of frivolous and intentionally fabricated pleadings or motions are filed by one party under this Article, the court shall sanction the party in an appropriate manner to allow the proceedings to continue without undue delay or obstruction by the party filing the pleadings.

(725 ILCS 5/112A-21) (from Ch. 38, par. 112A-21)

Sec. 112A-21. Contents of orders.

(a) Any domestic violence order of protection shall describe, in reasonable detail and not by reference to any other document, the following:

(1) Each remedy granted by the court, in reasonable detail and not by reference to any other document, so that respondent may clearly understand what he or she must do or refrain from doing. Pre-printed form orders of protection shall include the definitions of the types of abuse, as provided in Section 112A-3 of this Code. Remedies set forth in pre-printed form for domestic violence orders shall be numbered consistently with and corresponding to the numerical sequence of remedies listed in Section 112A-14 of this Code (at least as of the date the form orders are printed).

(2) The reason for denial of petitioner's request for any remedy listed in Section 112A-14 of this Code.

(b) A domestic violence order of protection shall further state the following:

(1) The name of each petitioner that the court finds is a victim of a charged offense, and that respondent is a member of the family or household of each such petitioner, and the name of each other person protected by the order and that such person is protected by this Code.

(2) For any remedy requested by petitioner on which the court has declined to rule, that that remedy is reserved.

(3) The date and time the domestic violence order of protection was issued.

(4) (Blank).

(5) (Blank).

(6) (Blank).

(c) Any domestic violence order of protection shall include the following notice, printed in conspicuous type:

"Any knowing violation of a domestic violence order of protection forbidding physical abuse, harassment, intimidation, interference with personal liberty, coercive control behavior, willful deprivation, or entering or remaining present at specified places when the protected person is present, or granting exclusive possession of the residence or household, or granting a stay away order is a Class A misdemeanor for a first offense, and a Class 4 felony for persons with a prior conviction for certain offenses under subsection (d) of Section 12-3.4 of the Criminal Code of 2012. Grant of exclusive possession of the residence or household shall constitute notice forbidding trespass to land. Any knowing violation of an order awarding legal custody or physical care of a child or prohibiting removal or concealment of a child may be a Class 4 felony. Any willful violation of any order is contempt of court. Any violation may result in fine or imprisonment."

(d) (Blank).

(e) A domestic violence order of protection shall state, "This Order of Protection is enforceable, even without registration, in all 50 states, the District of Columbia, tribal lands, and the U.S. territories pursuant to the Violence Against Women Act (18 U.S.C. 2265). Violating this Order of Protection may subject the respondent to federal charges and punishment (18 U.S.C. 2261-2262). The respondent may be subject to federal criminal penalties for possessing, transporting, shipping, or receiving any firearm or ammunition under the Gun Control Act (18 U.S.C. 922(g)(8) and (9))."

(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)

Section 10. The Illinois Domestic Violence Act of 1986 is amended by changing Sections 103 and 221 and by adding Section 202.5 as follows:

(750 ILCS 60/103) (from Ch. 40, par. 2311-3)

Sec. 103. Definitions. For the purposes of this Act, the following terms shall have the following meanings:

(1) "Abuse" means physical abuse, harassment, intimidation of a dependent, interference with personal liberty, coercive control behavior, or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.

(2) "Adult with disabilities" means an elder adult with disabilities or a high-risk adult with disabilities. A person may be an adult with disabilities for purposes of this Act even though he or she has never been adjudicated an incompetent adult. However, no court proceeding may be initiated or continued on behalf of an adult with disabilities over that adult's objection, unless such proceeding is approved by his or her legal guardian, if any.

(2.5) "Coercive control behavior" means a pattern of behavior that unreasonably interferes with a family or household member's free will and personal liberty, including, but not limited to:

(i) isolating the family or household member from friends, relatives, or other sources of support;

(ii) depriving the family or household member of basic necessities;

(iii) controlling, regulating, or monitoring the family or household member's movements, communications, daily behavior, finances, economic resources, or access to services;

(iv) compelling the family or household member by force, threat of force, or intimidation, including, but not limited to, threats based on actual or suspected immigration status, to engage in conduct from which the family or household member has a right to abstain, or abstain from conduct in which the family or household member has a right to engage;

(v) committing or threatening to commit cruelty to animals that intimidates the family or household member; and

(vi) forced sex acts, or threats of a sexual nature, including, but not limited to, threatened acts of sexual conduct, threats based on a person's sexuality, or threats to release sexual images.

(3) "Domestic violence" means abuse as defined in paragraph (1).

(4) "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.

(5) "Exploitation" means the illegal, including tortious, use of a high-risk adult with disabilities or of the assets or resources of a high-risk adult with disabilities. Exploitation includes, but is not limited to, the misappropriation of assets or resources of a high-risk adult with disabilities by undue influence, by breach of a fiduciary relationship, by fraud, deception, or extortion, or the use of such assets or resources in a manner contrary to law.

(6) "Family or household members" include 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, persons with disabilities and their personal assistants, and caregivers as defined in Section 12-4.4a of the Criminal Code of 2012. For purposes of this paragraph, neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed to constitute a dating relationship. In the case of a high-risk adult with disabilities, "family or household members" 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 voluntarily, or by express or implied contract, or by court order.

(7) "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.

(8) "High-risk adult with disabilities" means a person aged 18 or over whose physical or mental disability impairs his or her ability to seek or obtain protection from abuse, neglect, or exploitation.

(9) "Interference with personal liberty" means committing or threatening physical abuse, harassment, intimidation, or willful deprivation so as to compel another to engage in conduct from which she or he has a right to abstain or to refrain from conduct in which she or he has a right to engage.

(10) "Intimidation of a dependent" means subjecting a person who is dependent because of age, health or disability to participation in or the witnessing of: physical force against another or physical confinement or restraint of another which constitutes physical abuse as defined in this Act, regardless of whether the abused person is a family or household member.

(11) (A) "Neglect" means the failure to exercise that degree of care toward a high-risk adult with disabilities which a reasonable person would exercise under the circumstances and includes but is not limited to:

(i) the failure to take reasonable steps to protect a high-risk adult with disabilities from acts of abuse;

(ii) the repeated, careless imposition of unreasonable confinement;

(iii) the failure to provide food, shelter, clothing, and personal hygiene to a high-risk adult with disabilities who requires such assistance;

(iv) the failure to provide medical and rehabilitative care for the physical and mental health needs of a high-risk adult with disabilities; or

(v) the failure to protect a high-risk adult with disabilities from health and safety hazards.

(B) Nothing in this subsection (10) shall be construed to impose a requirement that assistance be provided to a high-risk adult with disabilities over his or her objection in the absence of a court order, nor to create any new affirmative duty to provide support to a high-risk adult with disabilities.

(12) "Order of protection" means an emergency order, interim order or plenary order, granted pursuant to this Act, which includes any or all of the remedies authorized by Section 214 of this Act.

(13) "Petitioner" may mean not only any named petitioner for the order of protection and any named victim of abuse on whose behalf the petition is brought, but also any other person protected by this Act.

(14) "Physical abuse" includes sexual abuse and means any of the following:

(i) knowing or reckless use of physical force, confinement or restraint;

(ii) knowing, repeated and unnecessary sleep deprivation; or

(iii) knowing or reckless conduct which creates an immediate risk of physical harm.

(14.5) "Stay away" means for the respondent to refrain from both physical presence and nonphysical contact with the petitioner whether direct, indirect (including, but not limited to, telephone calls, mail, email, faxes, and written notes), or through third parties who may or may not know about the order of protection.

(15) "Willful deprivation" means wilfully denying a person who because of age, health or disability requires medication, medical care, shelter, accessible shelter or services, food, therapeutic device, or other physical assistance, and thereby exposing that person to the risk of physical, mental or emotional harm, except with regard to medical care or treatment when the dependent person has expressed an intent to forgo such medical care or treatment. This paragraph does not create any new affirmative duty to provide support to dependent persons.

(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)

(750 ILCS 60/202.5 new)

Sec. 202.5. Frivolous and intentionally fabricated pleadings or motions. If the court finds that a pattern of frivolous and intentionally fabricated pleadings or motions are filed by one party under this Act, the court shall sanction the party in an appropriate manner to allow the proceedings to continue without undue delay or obstruction by the party filing the pleadings.

(750 ILCS 60/221) (from Ch. 40, par. 2312-21)

Sec. 221. Contents of orders.

(a) Any order of protection shall describe the following:

(1) Each remedy granted by the court, in reasonable detail and not by reference to any other document, so that respondent may clearly understand what he or she must do or refrain from doing. Pre-printed form orders of protection shall include the definitions of the types of abuse, neglect, and exploitation, as provided in Section 103. Remedies set forth in pre-printed form orders shall be numbered consistently with and corresponding to the numerical sequence of remedies listed in Section 214 (at least as of the date the form orders are printed).

(2) The reason for denial of petitioner's request for any remedy listed in Section 214.

(b) An order of protection shall further state the following:

(1) The name of each petitioner that the court finds was abused, neglected, or exploited by respondent, and that respondent is a member of the family or household of each such petitioner, and the name of each other person protected by the order and that such person is protected by this Act.

(2) For any remedy requested by petitioner on which the court has declined to rule, that that remedy is reserved.

(3) The date and time the order of protection was issued, whether it is an emergency, interim or plenary order and the duration of the order.

(4) The date, time and place for any scheduled hearing for extension of that order of protection or for another order of greater duration or scope.

(5) For each remedy in an emergency order of protection, the reason for entering that remedy without prior notice to respondent or greater notice than was actually given.

(6) For emergency and interim orders of protection, that respondent may petition the court, in accordance with Section 224, to re-open that order if he or she did not receive actual prior notice of the hearing, in accordance with Section 211, and alleges that he or she had a meritorious defense to the order or that the order or any of its remedies was not authorized by this Act.

(c) Any order of protection shall include the following notice, printed in conspicuous type: "Any knowing violation of an order of protection forbidding physical abuse, neglect, exploitation, harassment, intimidation, interference with personal liberty, coercive control behavior, willful deprivation, or entering or remaining present at specified places when the protected person is present, or granting exclusive possession of the residence or household, or granting a stay away order is a Class A misdemeanor. Grant of exclusive possession of the residence or household shall constitute notice forbidding trespass to land. Any knowing violation of an order awarding legal custody or physical care of a child or prohibiting removal or concealment of a child may be a Class 4 felony. Any willful violation of any order is contempt of court. Any violation may result in fine or imprisonment."

(d) An emergency order of protection shall state, "This Order of Protection is enforceable, even without registration, in all 50 states, the District of Columbia, tribal lands, and the U.S. territories pursuant to the Violence Against Women Act (18 U.S.C. 2265). Violating this Order of Protection may subject the respondent to federal charges and punishment (18 U.S.C. 2261-2262)."

(e) An interim or plenary order of protection shall state, "This Order of Protection is enforceable, even without registration, in all 50 states, the District of Columbia, tribal lands, and the U.S. territories pursuant to the Violence Against Women Act (18 U.S.C. 2265). Violating this Order of Protection may subject the respondent to federal charges and punishment (18 U.S.C. 2261-2262). The respondent may be subject to federal criminal penalties for possessing, transporting, shipping, or receiving any firearm or ammunition under the Gun Control Act (18 U.S.C. 922(g)(8) and (9))."

(Source: P.A. 93-944, eff. 1-1-05.)

Section 99. Effective date. This Act takes effect upon becoming law.