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Public Act 093-0811
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| HB4395 Enrolled | LRB093 18410 LCB 44118 b |
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AN ACT concerning protective orders.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Code of Criminal Procedure of 1963 is |
amended by changing Section 112A-3 as follows:
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(725 ILCS 5/112A-3) (from Ch. 38, par. 112A-3)
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Sec. 112A-3. Definitions. For the purposes of this Article, |
the
following terms shall have the following meanings:
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(1) "Abuse" means physical abuse, harassment, intimidation |
of a
dependent, interference with personal liberty or willful |
deprivation but
does not include reasonable direction of a |
minor child by a parent or
person in loco parentis.
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(2) "Domestic violence" means abuse as described in |
paragraph (1).
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(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 paragraph (3) of
subsection (b) of |
Section 12-21 of the Criminal Code of 1961.
For purposes of |
this paragraph, neither a casual acquaintanceship nor
ordinary |
fraternization between 2 individuals in business or social
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contexts shall be deemed to constitute a dating relationship.
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(4) "Harassment" means knowing conduct which
is not |
necessary to accomplish a purpose which is reasonable under the
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circumstances; would cause a reasonable person emotional |
distress; and
does cause emotional distress to the petitioner.
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Unless the presumption is rebutted by a preponderance of the |
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evidence, the
following types of conduct shall be presumed to |
cause emotional distress:
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(i) creating a disturbance at petitioner's place of |
employment or school;
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(ii) repeatedly telephoning petitioner's place of |
employment, home or
residence;
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(iii) repeatedly following petitioner about in a |
public place or places;
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(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;
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(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
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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
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(vi) threatening physical force, confinement or |
restraint on one or more
occasions.
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(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.
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(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.
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(7) "Order of protection" means an emergency order, interim |
order or
plenary order, granted pursuant to this Article, which |
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includes any or all
of the remedies authorized by Section |
112A-14 of this Code.
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(8) "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 Article.
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(9) "Physical abuse" includes sexual abuse and means any of |
the following:
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(i) knowing or reckless use of physical force, |
confinement or restraint;
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(ii) knowing, repeated and unnecessary sleep |
deprivation; or
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(iii) knowing or reckless conduct which creates an |
immediate
risk of physical harm.
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(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 order of protection.
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(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
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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 does |
not create any new affirmative duty to provide
support to |
dependent persons.
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(Source: P.A. 92-253, eff. 1-1-02.)
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Section 8. The Civil No Contact Order Act is amended by |
changing Sections 103, 202, 213, 214, 217, and 218 and by |
adding Sections 204.3 and 218.5 as follows:
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(740 ILCS 22/103)
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Sec. 103. Definitions. As used in this Act:
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"Abuse" means physical abuse, harassment, intimidation of |
a dependent, or
interference with personal liberty.
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"Civil no contact order" means an emergency order or |
plenary order
granted under this Act, which includes a remedy |
authorized by Section 213
of this Act.
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"Non-consensual" means a lack of freely given agreement.
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"Petitioner" means any named petitioner for the
no contact |
order or any named victim of non-consensual sexual conduct or
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non-consensual sexual penetration on whose behalf the
petition |
is brought.
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"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.
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"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.
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"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. |
(Source: P.A. 93-236, eff. 1-1-04.)
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(740 ILCS 22/202)
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Sec. 202. Commencement of action; filing fees.
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(a) An action for a civil no contact order is commenced:
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(1) independently, by filing a petition for a civil no |
contact order in any civil court,
unless specific courts |
are designated by local rule or order; or
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(2) in conjunction with a
delinquency
petition or a |
criminal prosecution, by filing a petition for a civil no |
contact
order under
the same case number as the delinquency |
petition or criminal prosecution, to be
granted
during |
pre-trial release of a defendant, with any dispositional |
order issued
under Section
5-710 of the Juvenile Court Act |
of 1987 or as a condition of release,
supervision,
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conditional discharge, probation, periodic imprisonment, |
parole, or mandatory
supervised
release, or in conjunction |
with imprisonment or a bond forfeiture warrant,
provided |
that (i) the violation is alleged in an information, |
complaint,
indictment, or
delinquency
petition on file and |
the alleged victim is a person protected by this Act, and
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(ii) the
petition, which is filed by the State's Attorney, |
names a victim of the alleged
crime as a
petitioner.
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(b) Withdrawal or dismissal of any petition for a
civil no |
contact order
prior to adjudication where the petitioner is |
represented by the State shall
operate as a dismissal without |
prejudice. No action for a civil no contact
order shall be |
dismissed because the respondent is being prosecuted for a |
crime
against the petitioner. For any action commenced under |
item (2) of subsection
(a) of
this Section, dismissal of the |
conjoined case (or a finding of not guilty)
shall not require |
dismissal of the action for a civil no contact order;
instead, |
it may be treated as an independent action and, if necessary |
and
appropriate, transferred to a different court or division.
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(c) No fee shall be
charged by the clerk of the court for |
filing petitions or modifying or
certifying orders. No
fee
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shall be charged by the sheriff for service by the sheriff of a
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petition, rule, motion, or order in an action commenced under |
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this
Section.
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(d) The court shall provide, through the office
of the |
clerk of the court, simplified forms for
and clerical |
assistance to
help with the writing and filing of a petition |
under this Section by any
person not represented by counsel.
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(Source: P.A. 93-236, eff. 1-1-04.)
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(740 ILCS 22/204.3 new) |
Sec. 204.3. Appointment of counsel. The court may appoint |
counsel to represent the petitioner if the respondent is |
represented by counsel.
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(740 ILCS 22/213)
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Sec. 213. Civil no contact order; remedy.
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(a) If the court finds that the petitioner has been a |
victim of
non-consensual sexual conduct or non-consensual |
sexual penetration, a civil no
contact order shall issue; |
provided that the petitioner must also satisfy the
requirements |
of Section
214 on emergency orders or Section 215 on plenary |
orders. The petitioner
shall not be denied a civil no contact |
order because the petitioner or the
respondent is a minor. The |
court, when
determining whether or not to issue a civil no |
contact order, may not
require physical injury on the person of |
the victim.
Modification and extension of prior civil no |
contact orders shall be in
accordance with this Act.
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(b) A civil no contact order shall order
one or more of the |
following:
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(1) order the respondent to stay away from the |
petitioner; or
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(2) other injunctive relief necessary or appropriate.
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Order the respondent to stay away from
any other person
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protected by the civil no contact order;
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(3) prohibit the respondent
from abuse, as defined in |
this Act, or stalking of the petitioner, as defined
in
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Section 12-7.3 of the Criminal Code of 1961, if the abuse
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or stalking has occurred or otherwise appears likely to |
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occur if not
prohibited; or
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(4) prohibit the respondent
from
entering or remaining |
present at the petitioner's school or place of
employment, |
or both, or other specified places at times when the |
petitioner is
present, 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 the respondent |
has no right to enter the
premises.
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(c) Denial of a remedy may not be based, in whole or in |
part, on
evidence that:
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(1) the respondent has cause for any use of force, |
unless that
cause satisfies the standards for justifiable |
use of force provided
by Article VII of the Criminal Code |
of 1961;
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(2) the respondent was voluntarily intoxicated;
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(3) the petitioner acted in self-defense or defense of |
another,
provided that, if the petitioner utilized force, |
such force was
justifiable under Article VII of the |
Criminal Code of 1961;
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(4) the petitioner did not act in self-defense or |
defense of
another;
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(5) the petitioner left the residence or household to |
avoid
further non-consensual sexual conduct or |
non-consensual sexual penetration
by the respondent; or
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(6) the petitioner did not leave the residence or |
household to
avoid further non-consensual sexual conduct |
or non-consensual sexual
penetration by the respondent.
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(d) Monetary damages are not recoverable as a remedy.
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(Source: P.A. 93-236, eff. 1-1-04.)
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(740 ILCS 22/214)
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Sec. 214. Emergency civil no contact order.
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(a) An emergency civil no contact order shall issue if
the |
petitioner satisfies the requirements of this subsection (a). |
The
petitioner
shall establish that:
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(1) the court has jurisdiction under Section 206
208;
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(2) the requirements of Section 213 are satisfied; and
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(3) there is good cause to grant the remedy, regardless |
of
prior service of process or of notice upon the |
respondent, because
the harm which that remedy is intended |
to
prevent would be likely to occur if the respondent were |
given
any prior notice, or greater notice than was actually |
given, of
the petitioner's efforts to obtain judicial |
relief.
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An emergency civil no contact order shall be issued by the |
court if it appears from the contents of the petition and the |
examination of the petitioner that the averments are sufficient |
to indicate nonconsensual sexual penetration by the respondent |
and to support the granting of relief under the issuance of the |
civil no contact order.
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An emergency civil no contact order shall be issued if the |
court finds that subsections (1), (2), and (3) above are met.
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(b) If the respondent appears in court for
this hearing for |
an emergency order, he or she may elect to file a
general |
appearance and testify. Any resulting order may be an emergency
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order, governed by this Section. Notwithstanding the |
requirements of
this Section, if all requirements of Section |
215 have been met, the
court may issue a plenary order.
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(c) Emergency orders; court holidays and evenings.
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(1) When the court is unavailable at the close
of |
business, the petitioner may file a petition for a 21-day
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emergency order before any available circuit judge or |
associate
judge who may grant relief under this Act. If the |
judge finds that
there is an immediate and present danger |
of
abuse against the petitioner and
that the petitioner has |
satisfied the prerequisites set forth in
subsection (a), |
that judge may issue an emergency
civil no contact order.
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(2) The chief judge of the circuit court
may designate |
for each county in the circuit at least one judge to
be |
reasonably available to issue orally, by telephone, by |
facsimile,
or otherwise, an emergency civil no contact |
order at all times, whether
or not the court is in session.
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(3) Any order issued under this
Section and any |
documentation in support of the order shall be certified
on |
the next court day to the appropriate court. The clerk of |
that
court shall immediately assign a case number, file the |
petition,
order, and other documents with the court, and |
enter the order of
record and file it with the sheriff for |
service, in accordance with
Section 222. Filing the |
petition shall commence proceedings for
further relief |
under Section 202. Failure to comply with the
requirements |
of this paragraph (3) does not affect the validity of the
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order.
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(Source: P.A. 93-236, eff. 1-1-04.)
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(740 ILCS 22/217)
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Sec. 217. Contents of orders.
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(a) Any civil no contact order shall describe each remedy |
granted by
the court, in reasonable detail and
not by reference |
to any other document, so that the respondent may
clearly |
understand what he or she must do or refrain from doing.
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(b) A civil no contact order shall further state the |
following:
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(1) The name of each petitioner that the court finds |
was the victim of
non-consensual sexual conduct or |
non-consensual sexual penetration by the
respondent and
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the name of each other person protected by the order and |
that the
person is protected by this Act.
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(2) The date and time the civil no contact order was |
issued,
whether it is an emergency or plenary order, and |
the
duration of the order.
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(3) The date, time, and place for any scheduled hearing |
for
extension of that civil no contact order or for another |
order of
greater duration or scope.
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(4) For each remedy in an emergency civil no contact |
order, the
reason for entering that remedy without prior |
notice to the respondent
or greater notice than was |
actually given.
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(5) For emergency civil no contact orders, that the |
respondent may petition the court, in accordance with |
Section 218.5, to reopen the order if he or she did not |
receive actual prior notice of the hearing as required |
under Section 209 of this Act and if the respondent alleges |
that he or she had a meritorious defense to the order or |
that the order or its remedy is not authorized by this Act.
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(c) A civil no contact order shall include the following |
notice,
printed in conspicuous type: "Any knowing violation of |
a civil no contact
order is a Class A misdemeanor. Any second |
or subsequent violation is a
Class 4 felony."
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(Source: P.A. 93-236, eff. 1-1-04.)
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(740 ILCS 22/218)
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Sec. 218. Notice of orders.
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(a) Upon issuance of any civil no contact order, the clerk |
shall
immediately, or on the next court day if an emergency |
order is issued in
accordance with subsection (c) of Section |
214:
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(1) enter the order on the record and file it in |
accordance with the
circuit court procedures; and
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(2) provide a file stamped copy of the order to the |
respondent, if
present, and to the petitioner.
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(b) The clerk of the issuing judge shall, or the petitioner |
may, on the
same day that a civil no contact order is issued, |
file a certified copy of that
order with the sheriff or other |
law enforcement officials charged with
maintaining Department |
of State Police records or charged with serving the
order upon |
the respondent. If the order was issued in accordance with
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subsection (c) of Section 214, the clerk shall, on the next |
court day, file a
certified copy of the order with the Sheriff |
or other law enforcement officials
charged with maintaining |
Department of State Police records.
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(c) Unless the respondent was present in court when the |
order was
issued, the sheriff, other law enforcement official, |
or special process server
shall promptly serve that order upon |
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the respondent and file proof of such
service in the manner |
provided for service of process in civil proceedings. If
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process has not yet been served upon the respondent, it shall |
be served with
the order or short form notification. A single |
fee may be charged for service
of an order obtained in civil |
court, or for service of such an order together
with process, |
unless waived or deferred under Section 208.
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(d) If the person against whom the civil no contact order |
is issued is
arrested and the written order is issued in |
accordance with subsection (c) of
Section 214 and received by |
the custodial law enforcement agency before
the respondent or |
arrestee is released from custody, the custodial law
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enforcement agent shall promptly serve the order upon the |
respondent or
arrestee before the respondent or arrestee is |
released from custody. In no
event shall detention of the |
respondent or arrestee be extended for hearing
on the petition |
for civil no contact order or receipt of the order issued under
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Section 214 of this Act.
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(e) Any order extending, modifying, or revoking any civil |
no contact
order shall be promptly recorded, issued, and served |
as provided in this
Section.
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(f) Upon the request of the
petitioner, within 24 hours of |
the issuance of a civil no contact order, the
clerk of the |
issuing judge shall
send written notice of the order along with
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a certified copy of the order to any school, college, or |
university at which
the
petitioner is enrolled.
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(Source: P.A. 93-236, eff. 1-1-04.)
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(740 ILCS 22/218.5 new) |
Sec. 218.5. Modification; reopening of orders. |
(a) Except as otherwise provided in this Section, upon |
motion by the petitioner, the court may modify an emergency or |
plenary civil no contact order by altering the remedy, subject |
to Section 213. |
(b) After 30 days following entry of a plenary civil no |
contact order, a court may modify that order only when a change |
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in the applicable law or facts since that plenary order was |
entered warrants a modification of its terms.
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(c) Upon 2 days' notice to the petitioner, or such shorter |
notice as the court may prescribe, a respondent subject to an |
emergency civil no contact order issued under this Act may |
appear and petition the court to rehear the original or amended |
petition. Any petition to rehear shall be verified and shall |
allege the following:
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(1) that the respondent did not receive prior notice of |
the initial hearing in which the emergency order was |
entered under Sections 209 and 214; and
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(2) that the respondent had a meritorious defense to |
the order or any of its remedies or that the order or any |
of its remedies was not authorized by this Act.
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Section 10. The Illinois Domestic Violence Act of 1986 is |
amended by changing Section 103 as follows:
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(750 ILCS 60/103) (from Ch. 40, par. 2311-3)
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Sec. 103. Definitions. For the purposes of this Act, the |
following
terms shall have the following meanings:
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(1) "Abuse" means physical abuse, harassment, intimidation |
of a dependent,
interference with personal liberty or willful |
deprivation but does not include
reasonable direction of a |
minor child by a parent or person in loco parentis.
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(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.
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(3) "Domestic violence" means abuse as defined in paragraph |
(1).
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(4) "Elder adult with disabilities" means an adult |
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prevented by
advanced age from taking appropriate action to |
protect himself or herself
from abuse by a family or household |
member.
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(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.
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(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
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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 paragraph (3) of subsection
(b) of |
Section 12-21 of the Criminal Code of 1961.
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.
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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
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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.
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(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.
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Unless the presumption is rebutted by a preponderance of the |
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evidence, the
following types of conduct shall be
presumed to |
cause emotional distress:
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(i) creating a disturbance at petitioner's place of |
employment or school;
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(ii) repeatedly telephoning petitioner's place of |
employment, home or residence;
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(iii) repeatedly following petitioner about in a |
public place or places;
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(iv) repeatedly keeping petitioner under surveillance |
by remaining
present outside his or her
home, school, place |
of employment, vehicle or other place occupied by
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petitioner or by peering in petitioner's windows;
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(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
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(vi) threatening physical force, confinement or |
restraint on one or more occasions.
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(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.
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(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.
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(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 |
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of whether the
abused person is a family or household member.
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(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:
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(i) the failure to take reasonable steps to protect a |
high-risk adult
with disabilities from acts of abuse;
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(ii) the repeated, careless imposition of unreasonable |
confinement;
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(iii) the failure to provide food, shelter, clothing, |
and personal
hygiene to a high-risk adult with disabilities |
who requires such assistance;
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(iv) the failure to provide medical and rehabilitative |
care for the
physical and mental health needs of a |
high-risk adult with disabilities; or
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(v) the failure to protect a high-risk adult with |
disabilities from
health and safety hazards.
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(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.
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(12) "Order of protection" means an emergency order, |
interim
order or plenary order, granted pursuant to this Act,
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which includes any or
all of the remedies authorized by Section |
214 of this Act.
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(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.
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(14) "Physical abuse" includes sexual abuse and means any
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of the following:
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(i) knowing or reckless use of physical force, |
confinement or restraint;
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(ii) knowing, repeated and unnecessary sleep |
deprivation; or
|
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(iii) knowing or reckless conduct which creates an |
immediate
risk of physical harm.
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(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.
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(15) "Willful deprivation" means wilfully denying a person |
who
because of age, health or disability requires medication,
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medical care, shelter, accessible shelter or services, food,
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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
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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.
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(Source: P.A. 92-253, eff. 1-1-02.)
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