BACKGROUND The Illinois Domestic Violence Act of 1986 (the "Act") has been described as a "hybrid" because it can be enforced in either one of two (2) different legal systems: criminal court or civil court. It is perhaps because the Act can be enforced indistinctly in either forum that some victims may be unfairly surprised by the potential legal consequences of attempting to obtain an Order of Protection in civil court.
Notwithstanding the Act, let's first discuss the fundamental differences that exist, in general, between a criminalproceeding and a civil proceeding. There are differences in both thePURPOSE and the PROCESSitself.
PURPOSE: The main purpose in any criminal proceeding is to protect society from somebody who is dangerous, with the ultimate goal of putting that defendant away, in prison. The State brings the action because allegedly that defendant has committed a crime which is punishable by incarceration, for example: rape, murder, robbery, etc. On the other hand, the most common purpose in any civil proceeding is to resolve a dispute or controversy between two (or more) citizens, with the ultimate ideal goal of facilitating the future interaction between the two parties. The action is brought by one citizen (not the State) against another citizen, for example: contract dispute, landlord-tenant, child support, divorce, etc.
PROCESS: In any criminal proceeding, the defendant is presumed to be innocent; the State has to prove its case against the defendant "beyond a reasonable doubt" (almost 100%). If the State doesn't, then the defendant is set free, end of case. In a civil proceeding, there is not necessarily any type of presumption one way or the other, but rather the idea is that there is a controversy between the parties and that neither party may be clearly incorrect or "guilty". Whoever brings the action (the plaintiff) has to prove by "preponderance of the evidence" (a little over 50%) that he/she is right. In a civil proceeding the defendant, in turn, can (and must) bring any and all other actions that he/she might have against the plaintiff: countersue.
ENFORCEMENT OF THE ACT As previously mentioned, the Act can be enforced in a criminal proceeding or a civil proceeding.
In order to obtain an order of protection in criminal court, the abuser has to have allegedly committed an underlying criminal act against the victim, for example: assault, battery, stalking, etc. The criminal court will NOT grant the victim an Order of Protection unless she is willing to testify against the abuser and prosecutes the underlying criminal proceeding to the ultimate consequences. This means that apart from having to come to court for the Order of Protection, the victim may have to come to court more times in order to testify against the abuser for the criminal case. The Order of Protection will be valid for as long as she continues to participate in the prosecution of the underlying criminal case against the abuser. Please understand that the State does not necessarily have to be successful in proving beyond a reasonable doubt that the abuser is guilty of the underlying criminal act for the victim to obtain the order of protection; she simply cannot drop or withdraw the criminal charges in order to maintain it. Unfortunately, once the State concludes its criminal case against the abuser (regardless of the outcome), the Order of Protection usually expires and so the victim may not be legally protected any longer.
CIVIL PROCEEDING An order of protection in civil court can be obtained in one of two basic ways: a) independently, on its own; OR b) as part of another civil proceeding, i.e. divorce, custody, paternity, etc. The usual legal procedure is for the victim to obtain an Emergency order of protection which will be valid for 21 days to return on a day and time certain. During those 21 days, the respondent will be served (if not previously served) with the emergency order of protection and informed to appear in court on the date certain.
On the scheduled date in court, there are basically three (3) possibilities with respect to the order of protection only: a) the abuser, after being properly served defaults, does not appear in court and then the victim, after a brief hearing, may obtain a Plenary order of protection which could be valid for up to 2 years. b) the abuser appears in court but requests time to obtain an attorney; the victim may then obtain an Interim order of protection which will be valid usually from 30 days to three months more. c) the abuser appears in court with an attorney. A full fledged hearing on the order of protection will take place at the conclusion of which, hopefully, a plenary order of protection will be granted to the victim.
If the victim pursues an order of protection in conjunction with another civil proceeding, then she is probably already aware of the abuser's position with respect to the other pertinent issues. This, however, is not the case when the civil order of protection is pursued independently in a situation where there is a permanent relationship between the parties. For example, the parties are married and the victim obtains a civil order of protection from her husband. As previously explained, the emergency order of protection will be granted for 21 days only. When the abuser/husband is served with it, there is a clear possibility that he will consult with an attorney who would recommend not only to respond to the order of protection itself but also to file for divorce.
Let's assume that the parties have children. The wife/mother files for an independent order of protection, without filing for divorce. She does not file for divorce because she feels she is not ready for the divorce, she just wants him to stop abusing her. Let's further assume that the husband/abuser, in response to the order of protection, not only files an answer to the petition for an order of protection but he also files for divorce AND for the custody of the children. In Illinois and with this set of facts, either parent has the same right to have the legal custody of the children. Additionally, only the non-custodial parent is the one who has to pay child support. Under these facts, many women, who have not been legally counseled, assume that they will have the legal custody of the children simply because they are "women" and that as a result, they will get child support automatically. This is specially true in the Hispanic community where there is a long tradition and culture of women being the principal caretakers of the children and seldom or almost never do fathers legally seek the custody of the children. However, those same fathers, when confronted with the possibility of having an order of protection against them, suddenly become very interested in having the custody of the children themselves and "receiving" child support instead of having to pay it. Since a truly contested custody matter may take up to 18 months to resolve, putting the victim/mother through this grueling process may be another way for the abuser to control her and exercise power over her. Although the victim/mother may eventually obtain the custody of the children, the reality is that when she sought the original emergency order of protection she was not ready for the avalanche of legal challenges that followed.
ADVANTAGES AND DISADVANTAGES OF THE CRIMINAL PROCEEDING In general, after all the preliminary requirements for a criminal proceeding are satisfied (see above), the order of protection obtained in criminal court will not afford the victim all the relief that she may be entitled to get under the Act. For example, the criminal court will not make decisions about the legal custody of the children (it will only allow the victim to have "the possession" of the children); it will not make decisions about child support obligations; it will not order counseling for the abuser; etc. However, one of the biggest advantages of the criminal proceeding is that the abuser cannot "countersue" the victim (for divorce, paternity, custody, etc.) right then and there, in that court. So the victim knows that once the order of protection is granted, there cannot be any other legal "surprises" - in the criminal court - that will put her in the defensive. Obviously, the abuser can always hire an attorney who practices in family law and can start any legal proceeding in civil court but that will require the abuser to get involved with a new legal proceeding ... when he does not even know whether he will end up in jail in the criminal one!
ADVANTAGES AND DISADVANTAGES OF THE CIVIL PROCEEDING In general, the victim does not have to have suffered real serious physical harm in order to obtain an order of protection; the process is NOT dependent on an underlying criminal action. Thus, the victim can more easily obtain an order of protection in civil court for mental abuse, insults, threats of physical abuse, repeatedly telephoning the victim, etc. One of the major disadvantages, as previously explained, is that many victims who resorted to the civil legal system for protection only, simply not to be abused anymore, may unwittingly find themselves confronting a plethora of legal issues that they may not have thought through and they may not have been educated about. Another disadvantage, however, is that the order of protection is just a "yellow piece of paper" that prohibits the abuser to continue to act a certain way and many times, unless there is a threat of some other, more intimidating consequence, i.e. threat of ending up in jail, many abusers may not "care" about the order of protection.
CONCLUSION Many victims are not aware that in a civil process the abuser can retaliate by filing for other legal relief such as divorce and/or custody of the children. Very often, once they learn of the legal consequences of forcing the abuser in a civil process, the victims themselves decide to take a more comprehensive approach, for example file for the order of protection in conjunction with a divorce and/or custody of the children. Or, in the alternative, they might still decide to go ahead and obtain an order of protection ONLY and not take a comprehensive approach. The important point is that the victim herself will make the choice, fully aware of the consequences of her actions and be ready - and not unpleasantly surprised - if she is served herself with other civil legal proceedings.