• Attorney Jennifer Wirth

Stay Safe: Orders of Protection for Domestic Violence Amid COVID-19 “Shelter-In-Place” Restrictions

Domestic violence victims are not necessarily safe from emotional or physical danger when they stay home. In fact, quite the opposite. They are “alone together” with a person who may endanger their physical or mental health during the pandemic.

On March 20, 2020, Illinois Governor J.B. Pritzker enacted a “Shelter-In-Place” Order in an effort to keep residents safe from contracting and spreading of COVID-19. The order is currently extended through April 30, 2020.

As many social media and community outreach efforts promote coronavirus protection slogans, such as ‘Stay Safe, Stay Home” or “Alone Together,” domestic violence has been rising across the country, offering a solemn counter-definition to these phrases.

Domestic violence victims are not necessarily safe from emotional or physical danger when they stay home. In fact, quite the opposite. They are “alone together” with a person who may endanger their physical or mental health during the pandemic.

In a recent Time Article, Katie Ray-Jones, the CEO of the National Domestic Violence Hotline, told the magazine, “Perpetrators are threatening to throw their victims out on the street so they get sick,” while other abusers are threatening to withhold financial resources or medical assistance.

Although the courts are closed, many are still able to perform essential functions, such as entering an Emergency Order of Protection, as well as providing bond hearings to persons charged with Domestic Violence.

As the coronavirus pandemic may postpone divorce proceedings and allow those accused of domestic violence to obtain bond, this article focuses on obtaining an Order of Protection in Illinois.

What Conduct Qualifies for an Order of Protection under the Domestic Violence Law?

For purposes of obtaining an Order of Protection, Illinois law defines “Domestic Violence” as any of the following conduct under 750 ILCS 60/103:

Physical Abuse. Illinois law defines physical abuse as:

o Sexual abuse;

o Knowing or reckless physical force, confinement or restraint;

o Knowing, repeated and unnecessary sleep deprivation; or

o Knowing or reckless conduct that creates an immediate risk of physical harm

Harassment. Illinois law defines “Harassment,” for purposes of an Order of Protection,” as “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.” 750 ILCS 60/103(7)

Under the Harassment definition, the law creates a rebuttable presumption that the following conduct constitutes harassment:

o Creating a disturbance at a person’s place of work or school;

o Repeatedly calling a person’s place of work, school or residence;

o Repeatedly following a person in a public place or places;

o Repeatedly keeping a person under surveillance by remaining present outside a person’s home, school, workplace, vehicle or other place occupied by the person, or peering through a person’s windows;

o Improperly concealing, or repeatedly threatening to conceal or remove, a minor child from the jurisdiction or care of person, as well as making a single threat of concealment or removal after attempting or actually improperly removing a minor child. (An exception to this definition is where the opposing party was fleeing an incident or pattern of domestic violence); or

o Threatening physical force, confinement or restraint.

Intimidation of a Dependent. For purposes of obtaining an Order of Protection, a person may be deemed “dependent” due to age, health or disability. It is unlawful to make a dependent participate in, or witness conduct, that constitutes physical force, physical confinement, or restraint of any person (regardless of whether the abused person is a family or household member). 750 ILCS 60/103(10)

Interference with Personal Liberty. For purposes of requesting a protection order, “Interference with Personal Liberty” means threatening or committing physical abuse, harassment, intimidation, or willful depravation that causes the victim to engage in conduct they have a right to forego, as well as to forego conduct in which they have a right to engage. 750 ILCS 60/103(9)

Willful Deprivation. This provision of law is particularly relevant to dependent persons who are being unlawfully prevented from seeking medical care for a suspected COVID-19 case, as well as other health or services, due to willful deprivation. As stated earlier, a person may be deemed to be dependent due to age, health or disability.

Under Illinois law, a victim may seek an Order of Protection when they are being willfully denied medication, medical care, shelter, services, food, therapeutic device(s) or other physical assistance by another person, and such denial exposes the dependent person to a risk of physical, mental or emotional harm. The law makes clear that an exception exists when the victim has expressed their intention to forego medical care or treatment. 750 ILCS 60/103(15)

Who is Considered a Family or Household Member?

Illinois law has a broad definition of who can be considered a “Family or Household Member” for purposes of seeking an Order of Protection. 750 ILCS 60/103(6)

Under the law governing protective orders in cases of domestic violence, a family or household member includes any of the following persons:

· Spouse or former spouse;

· Boyfriend or girlfriend;

· A person you are presently dating, or dated in the past;

· Parents or step-parents;

· Persons who have a child in common, whether or not they were ever married or lived together;

· Persons you share a blood relationship with through a child, such as your child’s grandparents;

· Persons related to you by blood or by your present or former marriage;

· Persons who share, or formerly shared, a common residence; and

· Persons with disabilities and their caregivers and/or assistants.

What types of Orders of Protection are available under Illinois law?

Under Illinois Law, there are three different types of Orders of Protection: Emergency, Interim and Plenary.

Emergency and Interim Orders provide temporary protection while awaiting a hearing on the plenary order. A plenary order of protection offers longer-term protection, if granted.

When determining the proper courthouse to file for an Order of Protection, the petitioner can file in the county where the Petitioner or Respondent resides, including the county where a petitioner may reside in a shelter or other temporary housing. The petitioner may also file in the county where the incident took place. If there is an ongoing civil or criminal proceeding involving the abuser, the petitioner may file as part of that proceeding.

Emergency Order of Protection. A short-term, emergency order of protection may be filed when a person is seeking protection from domestic violence that is being inflicted by a family or household member, as previously defined.

The petitioner does not have to provide notice to their abuser prior to filing an emergency petition if the harm they are seeking to prevent, whether physical or otherwise, would be likely to happen if notice were provided to them. 750 ILCS 60/217.

This is a one-sided proceeding where the petitioner provides testimony to the Judge, without the abuser’s presence being required. Upon reading the petitioner and receiving testimony, the judge may order the abuser to be removed from the shared residence if they believe the immediate danger of further abuse outweighs the hardship to the abuser of being suddenly removed from their home.

An emergency order cannot grant certain remedies, such as counseling, legal custody, payment of support or monetary compensation. As the name suggests, it is a short-term order that being granted for emergency protection. These items may be granted in subsequent orders, upon notice being given to the respondent.

A petitioner can file a petition for a 21-day emergency order at times when the court is closed before any available circuit judge. The emergency order will remain in effect until a petitioner can have a hearing on the plenary order, which is generally 14-21 days.

Interim Order of Protection. Interim orders are often used as a bridge for the time period between the emergency order and the longer-term, plenary order.

A petitioner must typically show that notice was served to the respondent. In the absence of formal notice being served, the petitioner may show that they have been diligently attempting to complete service if notice has not been effectuated. If a general appearance is made by or for the respondent in the proceedings, it is sufficient to satisfy notice requirements. 750 ILCS 60/218

An interim order of protection can be issued for up to thirty days, while the parties await a hearing on the Plenary Order.

Plenary Order of Protection. A plenary order of protection is a final, long-term order that lasts up to two years. The order may last longer if it is tied to a pending divorce or other ongoing legal proceeding.

A plenary order can only be granted after a court hearing in which both parties have the opportunity to present evidence.

Upon hearing, a plenary order can provide additional remedies, such as counseling, child support, as well as child custody and care determinations.

All three types of orders may be extended by order of the court, depending on the circumstances that merit extension. 750 ILCS 60/220

Additional Resources for Assistance During the Coronavirus

During the “Shelter-in-Place” Order resulting from COVID-19 in Illinois, it is important for domestic violence victims to understand that resources remain available.

Courthouses should have a judge on duty to hear a petition for an emergency order of protection despite the general courthouse being closed due to the coronavirus. In order to file for a protection order, a petitioner should consult with an attorney, whenever possible, to assist in the case. If a person cannot afford an attorney, many courthouses also maintain forms for petitions on their websites to help a pro se petitioner file for an order of protection.

If an order of protection is violated, it is a matter of criminal law. A first-time violation is likely to be charged as a Class A misdemeanor, while a second violation may be enhanced to a felony. It is recommended that person call the police immediately if they are suffering from domestic violence, or if their abuser violates an order of protection.

Finally, there is a community of support for domestic violence victims. To obtain help or advice, the National Domestic Violence Hotline can be reached at 1-800-799-SAFE. Illinois also provides a Chicagoland Domestic Violence Help Line that can be contacted at 1-877-863-6338.