HB3103 103RD GENERAL ASSEMBLY

LRB103 30894 LNS 57433 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB3103

Introduced 2/17/2023, by Rep. Stephanie A. Kifowit

SYNOPSIS AS INTRODUCED:

725 ILCS 5/112A-4.5
740 ILCS 21/15
740 ILCS 22/201
740 ILCS 22/220

Amends the Code of Criminal Procedure of 1963, the Stalking No Contact Order Act, and the Civil No Contact Order Act. Allows a petition for a stalking no contact order or civil no contact order to be filed: by a member of the Illinois National Guard or any reserve military component serving within the State who is a victim of non-consensual sexual conduct who has also received a Military Protective Order; or by the Staff Judge Advocate of the Illinois National Guard or any reserve military component serving within the State on behalf of a named victim who is a victim of non-consensual sexual conduct who has also received a Military Protective Order only after receiving consent from the victim, and requires the petition to include a statement that the victim has consented to the Staff Judge Advocate filing the petition. Provides that nothing in the Civil No Contact Order Act precludes any Illinois court from enforcing a valid protective order issued by a military tribunal. Provides that a violation of a civil no contact order, when issued by a military tribunal, shall be enforced by a criminal court when the respondent commits the crime of violation of a civil no contact order. Effective immediately.

A BILL FOR

AN ACT concerning civil law.

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 Section 112A-4.5 as follows:

(725 ILCS 5/112A-4.5)

Sec. 112A-4.5. Who may file petition.

(a) A petition for a domestic violence order of protection may be filed:

(1) by a named victim who has been abused by a family or household member;

(2) by any person or by the State's Attorney on behalf of a named victim who is a minor child or an adult who has been abused by a family or household member and who, because of age, health, disability, or inaccessibility, cannot file the petition;

(3) by a State's Attorney on behalf of any minor child or dependent adult in the care of the named victim, if the named victim does not file a petition or request the State's Attorney file the petition; or

(4) any of the following persons if the person is abused by a family or household member of a child:

(i) a foster parent of that child if the child has been placed in the foster parent's home by the Department of Children and Family Services or by another state's public child welfare agency;

(ii) a legally appointed guardian or legally appointed custodian of that child;

(iii) an adoptive parent of that child;

(iv) a prospective adoptive parent of that child if the child has been placed in the prospective adoptive parent's home pursuant to the Adoption Act or pursuant to another state's law.

For purposes of this paragraph (a)(4), individuals who would have been considered "family or household members" of the child under paragraph (3) of subsection (b) of Section 112A-3 before a termination of the parental rights with respect to the child continue to meet the definition of "family or household members" of the child.

(b) A petition for a civil no contact order may be filed:

(1) by any person who is a named victim of non-consensual sexual conduct or non-consensual sexual penetration, including a single incident of non-consensual sexual conduct or non-consensual sexual penetration;

(2) by a person or by the State's Attorney on behalf of a named victim who is a minor child or an adult who is a victim of non-consensual sexual conduct or non-consensual sexual penetration but, because of age, disability, health, or inaccessibility, cannot file the petition;

(3) by a State's Attorney on behalf of any minor child who is a family or household member of the named victim, if the named victim does not file a petition or request the State's Attorney file the petition;

(4) by a service member of the Illinois National Guard or any reserve military component serving within the State who is a victim of non-consensual sexual conduct who has also received a Military Protective Order; or

(5) by the Staff Judge Advocate of the Illinois National Guard or any reserve military component serving in the State on behalf of a named victim who is a victim of non-consensual sexual conduct who has also received a Military Protective Order only after receiving consent from the victim, and the petition shall include a statement that the victim has consented to the Staff Judge Advocate filing the petition.

(c) A petition for a stalking no contact order may be filed:

(1) by any person who is a named victim of stalking;

(2) by a person or by the State's Attorney on behalf of a named victim who is a minor child or an adult who is a victim of stalking but, because of age, disability, health, or inaccessibility, cannot file the petition;

(3) by a State's Attorney on behalf of any minor child who is a family or household member of the named victim, if the named victim does not file a petition or request the State's Attorney file the petition;

(4) by a service member of the Illinois National Guard or any reserve military component serving within the State who is a victim of non-consensual sexual conduct who has also received a Military Protective Order; or

(5) by the Staff Judge Advocate of the Illinois National Guard or any reserve military component serving in the State on behalf of a named victim who is a victim of non-consensual sexual conduct who has also received a Military Protective Order only after receiving consent from the victim, and the petition shall include a statement that the victim has consented to the Staff Judge Advocate filing the petition.

(d) The State's Attorney shall file a petition on behalf of any person who may file a petition under subsections (a), (b), or (c) of this Section if the person requests the State's Attorney to file a petition on the person's behalf, unless the State's Attorney has a good faith basis to delay filing the petition. The State's Attorney shall inform the person that the State's Attorney will not be filing the petition at that time and that the person may file a petition or may retain an attorney to file the petition. The State's Attorney may file the petition at a later date.

(d-5) (1) A person eligible to file a petition under subsection (a), (b), or (c) of this Section may retain an attorney to represent the petitioner on the petitioner's request for a protective order. The attorney's representation is limited to matters related to the petition and relief authorized under this Article.

(2) Advocates shall be allowed to accompany the petitioner and confer with the victim, unless otherwise directed by the court. Advocates are not engaged in the unauthorized practice of law when providing assistance to the petitioner.

(e) Any petition properly filed under this Article may seek protection for any additional persons protected by this Article.

(Source: P.A. 101-81, eff. 7-12-19; 102-890, eff. 5-19-22.)

Section 10. The Stalking No Contact Order Act is amended by changing Section 15 as follows:

(740 ILCS 21/15)

Sec. 15. Persons protected by this Act. A petition for a stalking no contact order may be filed when relief is not available to the petitioner under the Illinois Domestic Violence Act of 1986:

(1) by any person who is a victim of stalking;

(2) by a person on behalf of a minor child or an adult who is a victim of stalking but, because of age, disability, health, or inaccessibility, cannot file the petition;

(3) by an authorized agent of a workplace;

(4) by an authorized agent of a place of worship; or

(5) by an authorized agent of a school;

(6) by a service member of the Illinois National Guard or any reserve military component serving within the State who is a victim of non-consensual sexual conduct who has also received a Military Protective Order; or

(7) by the Staff Judge Advocate of the Illinois National Guard or any reserve military component serving within the State on behalf of a named victim who is a victim of non-consensual sexual conduct who has also received a Military Protective Order only after receiving consent from the victim, and the petition shall include a statement that the victim has consented to the Staff Judge Advocate filing the petition.

(Source: P.A. 100-1000, eff. 1-1-19.)

Section 15. The Civil No Contact Order Act is amended by changing Sections 201 and 220 as follows:

(740 ILCS 22/201)

Sec. 201. Persons protected by this Act.

(a) The following persons are protected by this Act:

(1) any victim of non-consensual sexual conduct or non-consensual sexual penetration on whose behalf the petition is brought;

(2) any family or household member of the named victim; and

(3) any employee of or volunteer at a rape crisis center that is providing services to the petitioner or the petitioner's family or household member; and .

(4) any service member of the Illinois National Guard or any reserve military component serving within the State who is a victim of non-consensual sexual conduct who has also received a Military Protective Order.

(b) A petition for a civil no contact order may be filed:

(1) by any person who is a victim of non-consensual sexual conduct or non-consensual sexual penetration, including a single incident of non-consensual sexual conduct or non-consensual sexual penetration;

(2) by a person on behalf of a minor child or an adult who is a victim of non-consensual sexual conduct or non-consensual sexual penetration but, because of age, disability, health, or inaccessibility, cannot file the petition; or

(3) only after receiving consent from the victim, by any family or household member of a victim of non-consensual sexual conduct or non-consensual sexual penetration, and the petition shall include a statement that the victim has consented to the family or household member filing the petition; .

(4) any service member of the Illinois National Guard or any reserve military component serving within the State who is a victim of non-consensual sexual conduct who has also received a Military Protective Order; or

(5) the Staff Judge Advocate of the Illinois National Guard or any reserve military component serving within the State on behalf of a named victim who is a victim of non-consensual sexual conduct who has also received a Military Protective Order only after receiving consent from the victim, and the petition shall include a statement that the victim has consented to the Staff Judge Advocate filing the petition.

(Source: P.A. 102-198, eff. 1-1-22.)

(740 ILCS 22/220)

Sec. 220. Enforcement of a civil no contact order.

(a) Nothing in this Act shall preclude any Illinois court from enforcing a valid protective order issued in another state or by a military tribunal.

(b) Illinois courts may enforce civil no contact orders through both criminal proceedings and civil contempt proceedings, unless the action which is second in time is barred by collateral estoppel or the constitutional prohibition against double jeopardy.

(b-1) The court shall not hold a school district or private or non-public school or any of its employees in civil or criminal contempt unless the school district or private or non-public school has been allowed to intervene.

(b-2) The court may hold the parents, guardian, or legal custodian of a minor respondent in civil or criminal contempt for a violation of any provision of any order entered under this Act for conduct of the minor respondent in violation of this Act if the parents, guardian, or legal custodian directed, encouraged, or assisted the respondent minor in such conduct.

(c) Criminal prosecution. A violation of any civil no contact order, whether issued in a civil or criminal proceeding or by a military tribunal, shall be enforced by a criminal court when the respondent commits the crime of violation of a civil no contact order pursuant to Section 219 by having knowingly violated:

(1) remedies described in Section 213 and included in a civil no contact order; or

(2) a provision of an order, which is substantially similar to provisions of Section 213, in a valid civil no contact order which is authorized under the laws of another state, tribe, or United States territory.

Prosecution for a violation of a civil no contact order shall not bar a concurrent prosecution for any other crime, including any crime that may have been committed at the time of the violation of the civil no contact order.

(d) Contempt of court. A violation of any valid Illinois civil no contact order, whether issued in a civil or criminal proceeding, may be enforced through civil or criminal contempt procedures, as appropriate, by any court with jurisdiction, regardless of where the act or acts which violated the civil no contact order were committed, to the extent consistent with the venue provisions of this Act.

(1) In a contempt proceeding where the petition for a rule to show cause or petition for adjudication of criminal contempt sets forth facts evidencing an immediate danger that the respondent will flee the jurisdiction or inflict physical abuse on the petitioner or minor children or on dependent adults in the petitioner's care, the court may order the attachment of the respondent without prior service of the petition for a rule to show cause, the rule to show cause, the petition for adjudication of criminal contempt or the adjudication of criminal contempt. Conditions of release shall be set unless specifically denied in writing.

(2) A petition for a rule to show cause or a petition for adjudication of criminal contempt for violation of a civil no contact order shall be treated as an expedited proceeding.

(e) Actual knowledge. A civil no contact order may be enforced pursuant to this Section if the respondent violates the order after the respondent has actual knowledge of its contents as shown through one of the following means:

(1) by service, delivery, or notice under Section 208;

(2) by notice under Section 218;

(3) by service of a civil no contact order under Section 218; or

(4) by other means demonstrating actual knowledge of the contents of the order.

(f) The enforcement of a civil no contact order in civil or criminal court shall not be affected by either of the following:

(1) the existence of a separate, correlative order, entered under Section 202; or

(2) any finding or order entered in a conjoined criminal proceeding.

(g) Circumstances. The court, when determining whether or not a violation of a civil no contact order has occurred, shall not require physical manifestations of abuse on the person of the victim.

(h) Penalties.

(1) Except as provided in paragraph (3) of this subsection, where the court finds the commission of a crime or contempt of court under subsection (a) or (b) of this Section, the penalty shall be the penalty that generally applies in such criminal or contempt proceedings, and may include one or more of the following: incarceration, payment of restitution, a fine, payment of attorneys' fees and costs, or community service.

(2) The court shall hear and take into account evidence of any factors in aggravation or mitigation before deciding an appropriate penalty under paragraph (1) of this subsection.

(3) To the extent permitted by law, the court is encouraged to:

(i) increase the penalty for the knowing violation of any civil no contact order over any penalty previously imposed by any court for respondent's violation of any civil no contact order or penal statute involving petitioner as victim and respondent as defendant;

(ii) impose a minimum penalty of 24 hours imprisonment for respondent's first violation of any civil no contact order; and

(iii) impose a minimum penalty of 48 hours imprisonment for respondent's second or subsequent violation of a civil no contact order unless the court explicitly finds that an increased penalty or that period of imprisonment would be manifestly unjust.

(4) In addition to any other penalties imposed for a violation of a civil no contact order, a criminal court may consider evidence of any previous violations of a civil no contact order:

(i) to modify the conditions of pretrial release on an underlying criminal charge pursuant to Section 110-6 of the Code of Criminal Procedure of 1963;

(ii) to revoke or modify an order of probation, conditional discharge or supervision, pursuant to Section 5-6-4 of the Unified Code of Corrections; or

(iii) to revoke or modify a sentence of periodic imprisonment, pursuant to Section 5-7-2 of the Unified Code of Corrections.

(Source: P.A. 101-652, eff. 1-1-23.)

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