Getting an order of protection is feat unto itself. Once the order of protection is issued by the court, what makes the order of protection more than a piece of paper? The police enforcement of a violated order of protection is what gives an order of protection value and power. But, what if the police won’t enforce an order of protection?
Violating An Order Of Protection Is A Crime In Illinois
Whatever it says on your order protection must be followed by the other party.
“A violation of an order of protection order can incur criminal penalties, including immediate arrest without a warrant” Sanchez v. Torres, 48 NE 3d 271 – Ill: Appellate Court, 1st Dist., 2nd Div. 2016
The Illinois Domestic Violence Act says a violation of an order of protection is a crime if a person violates 720 ILCS 5/12-3.4
“When violation is crime. A violation of any order of protection, whether issued in a civil or criminal proceeding or by a military tribunal, shall be enforced by a criminal court when:
(1) The respondent commits the crime of violation of an order of protection pursuant to Section 12-3.4 or 12-30 of the Criminal Code of 1961 or the Criminal Code of 2012, by having knowingly violated: (i) remedies described in paragraphs (1), (2), (3), (14), or (14.5) of subsection (b) of Section 214 of this Act; or, (ii) a remedy, which is substantially similar to the remedies authorized under paragraphs (1), (2), (3), (14), and (14.5) of subsection (b) of Section 214 of this Act, in a valid order of protection which is authorized under the laws of another state, tribe, or United States territory; or (iii) any other remedy when the act constitutes a crime against the protected parties as defined by the Criminal Code of 1961 or the Criminal Code of 2012.” 750 ILCS 60/223(a)
720 ILCS 5/12-3.4 then says a violation of an order of protection is a crime if the violator violates the Illinois Domestic Violence Act.
“A person commits violation of an order of protection if:(1) He or she knowingly commits an act which was prohibited by a court or fails to commit an act which was ordered by a court in violation of:(i) a remedy in a valid order of protection authorized under paragraphs (1), (2), (3), (14), or (14.5) of subsection (b) of Section 214 of the Illinois Domestic Violence Act of 1986,(ii) a remedy, which is substantially similar to the remedies authorized under paragraphs (1), (2), (3), (14) or (14.5) of subsection (b) of Section 214 of the Illinois Domestic Violence Act of 1986, in a valid order of protection, which is authorized under the laws of another state, tribe or United States territory,(iii) any other remedy when the act constitutes a crime against the protected parties as the term protected parties is defined in Section 112A-4 of the Code of Criminal Procedure of 1963” 720 ILCS 5/12-3.4
These two statutes are circular…and hard to read. The sum of both statutes is that if the subject of an order of protection is found to have abused a protected party, enter a protected party’s home, be in the protected person’s presence, be in the protected party’s home drunk or possessing a firearm at any time…they are committing a crime.
Getting the police to arrest the violator and a prosecutor to prosecute the crime is another story.
Police Discretion In Enforcing An Order Of Protection In Illinois
Police can choose which crimes they want to arrest people for. Police do not arrest people upon request. In fact, people are usually mad at the police for arresting people not the other way around.
“A peace officer may arrest a person when:(a) He has a warrant commanding that such person be arrested; or(b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this State or in another jurisdiction; or(c) He has reasonable grounds to believe that the person is committing or has committed an offense.” 725 ILCS 5/107-2
The police are supposed to arrest violators of orders of protection.
“Whenever a law enforcement officer has reason to believe that a person has been abused, neglected, or exploited by a family or household member, the officer shall immediately use all reasonable means to prevent further abuse, neglect, or exploitation, including:… Arresting the abusing, neglecting and exploiting party, where appropriate” 750 ILCS 60/304(a)(1)
If the police officer doesn’t believe arrest is “appropriate”…that is there prerogative but the police still have responsibilities to a possible victim.
“Whenever a law enforcement officer does not exercise arrest powers or otherwise initiate criminal proceedings, the officer shall:(1) Make a police report of the investigation of any bona fide allegation of an incident of abuse, neglect, or exploitation and the disposition of the investigation, in accordance with subsection (a) of Section 303;(2) Inform the victim of abuse neglect, or exploitation of the victim’s right to request that a criminal proceeding be initiated where appropriate, including specific times and places for meeting with the State’s Attorney’s office, a warrant officer, or other official in accordance with local procedure; and(3) Advise the victim of the importance of seeking medical attention and preserving evidence (specifically including photographs of injury or damage and damaged clothing or other property).” 750 ILCS 60/304(b)
Reminding the police of their duties under the Illinois Domestic Violence Act is a good idea…if you do it politely. Otherwise, just remember how you reacted whenever someone told you to do your job.
If the police will not arrest the violator of an order of protection, there is another institution you can call on: the State’s Attorney.
State’s Attorney’s Discretion In Prosecuting A Violation of An Order Of Protection In Illinois
“The duty of each State’s Attorney shall be:(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for the county, in which the people of the State or county may be concerned.” 55 ILCS 5/3-9005
The operative word of a State’s Attorney’s mandate is “may.” If the prosecutor does not want to prosecute a crime, they do not have to.
“[T]he State’s Attorney has always enjoyed a wide discretion in both the initiation and the management of criminal litigation. That discretion includes the decision whether to initiate any prosecution at all, as well as to choose which of several charges shall be brought.” People ex rel. Carey v. Cousins, 397 NE 2d 809 – Ill: Supreme Court 1979
Thankfully, you can force the system to arrest the violator of an order of protection by going directly to the court.
How You Can Enforce Your Order Of Protection Without The Cooperation Of The Police Or The State’s Attorney In Illinois.
While a violation of an order of protection is a crime, the violation can be presented to the domestic relations court as a petition for contempt.
“When violation is contempt of court. A violation of any valid protective order, whether issued in a civil or criminal proceeding or by a military tribunal, may be enforced through civil or criminal contempt procedures, as appropriate, by any court with jurisdiction, regardless where the act or acts which violated the protective order were committed, to the extent consistent with the venue provisions of this Article…Illinois courts may enforce protective orders through both criminal prosecution and contempt proceedings” 725 ILCS 5/112A-23(b)
In their civil court capacity, the domestic relations judge can order the arrest of the violator if it is shown they may violate again.
“In a contempt proceeding where the petition for a rule to show cause sets forth facts evidencing an immediate danger that the respondent will flee the jurisdiction, conceal a child, or inflict physical abuse on the petitioner or minor children or on dependent adults in petitioner’s care, the court may order the attachment of the respondent without prior service of the rule to show cause or the petition for a rule to show cause. Bond shall be set unless specifically denied in writing.” 725 ILCS 5/112A-23(b)(1)
Furthermore, the civil court has to address the violation immediately (instead of giving you a status date months from now)
“A petition for a rule to show cause for violation of a protective order shall be treated as an expedited proceeding.” 725 ILCS 5/112A-23(b)(2)
Finally, a civil court can remind the police and the State’s Attorney that they should have arrested and prosecuted the violator by reminding them in the order of the purpose of the Illinois Domestic Violence Act.
“Th[e Illinois Domestic Violence] Act shall be liberally construed and applied to promote its underlying purposes, which are to:…Clarify the responsibilities and support the efforts of law enforcement officers to provide immediate, effective assistance and protection for victims of domestic violence, recognizing that law enforcement officers often become the secondary victims of domestic violence, as evidenced by the high rates of police injuries and deaths that occur in response to domestic violence calls” 750 ILCS 60/102(5)
A violation of an order of protection is domestic violence. “Domestic violence is always alien to love; it humiliates, isolates, emotionally scars, demeans, and dehumanizes the victim, and frequently, children of the victim as well.” Sanchez v. Torres, 48 NE 3d 271 – Ill: Appellate Court, 1st Dist., 2nd Div. 2016
If you have a valid order of protection and an ex who refuses to follow it, call the police. If the police will not help…call me. Either way, your ex needs to realize that actions have consequences.