Full Text of HB5012 93rd General Assembly
HB5012 93RD GENERAL ASSEMBLY
|
|
|
93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004 HB5012
Introduced 02/05/04, by John A. Fritchey SYNOPSIS AS INTRODUCED: |
|
740 ILCS 22/103 |
|
740 ILCS 22/202 |
|
740 ILCS 22/204.3 new |
|
740 ILCS 22/213 |
|
740 ILCS 22/214 |
|
740 ILCS 22/217 |
|
740 ILCS 22/218 |
|
740 ILCS 22/218.5 new |
|
|
Amends the Civil No Contact Order Act. Removes the definition of "abuse". Defines "stay away". Provides that the court shall provide, through the office of the clerk of the court, simplified forms for filing a petition (instead of simplified forms and clerical assistance to help with the writing and filing of a petition). Provides that the court may appoint counsel to represent the petitioner if the respondent is represented by counsel. Changes what a civil no contact order may contain. Provides that 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. Removes from the requirements that must be stated in the civil no contact order the name of each person (other than the victim) protected by the order and that the person is protected by the Act. Provides that, for emergency civil no contact orders, the order must state that the respondent may petition the court to reopen the order if he or she did not receive actual prior notice of the hearing 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 the Act. Makes other changes. Effective September 1, 2004.
|
| |
|
|
A BILL FOR
|
|
|
|
|
HB5012 |
|
LRB093 19071 LCB 46845 b |
|
| 1 |
| AN ACT concerning civil no contact orders.
| 2 |
| Be it enacted by the People of the State of Illinois,
| 3 |
| represented in the General Assembly:
| 4 |
| Section 5. The Civil No Contact Order Act is amended by | 5 |
| changing Sections 103, 202, 213, 214, 217, and 218 and by | 6 |
| adding Sections 204.3 and 218.5 as follows:
| 7 |
| (740 ILCS 22/103)
| 8 |
| Sec. 103. Definitions. As used in this Act:
| 9 |
| "Abuse" means physical abuse, harassment, intimidation of | 10 |
| a dependent, or
interference with personal liberty.
| 11 |
| "Civil no contact order" means an emergency order or | 12 |
| plenary order
granted under this Act, which includes a remedy | 13 |
| authorized by Section 213
of this Act.
| 14 |
| "Non-consensual" means a lack of freely given agreement.
| 15 |
| "Petitioner" means any named petitioner for the
no contact | 16 |
| order or any named victim of non-consensual sexual conduct or
| 17 |
| non-consensual sexual penetration on whose behalf the
petition | 18 |
| is brought.
| 19 |
| "Sexual conduct" means any intentional or knowing touching | 20 |
| or
fondling by the petitioner or the respondent, either | 21 |
| directly or through
clothing, of the sex organs, anus, or | 22 |
| breast of the petitioner or the
respondent, or any part of the | 23 |
| body of a child under 13 years of age, or
any transfer or | 24 |
| transmission of semen by the respondent upon any part of
the | 25 |
| clothed or unclothed body of the petitioner, for the purpose of | 26 |
| sexual
gratification or arousal of the petitioner or the | 27 |
| respondent.
| 28 |
| "Sexual penetration" means any contact, however slight, | 29 |
| between
the sex organ or anus of one person by an object, the | 30 |
| sex organ, mouth
or anus of another person, or any intrusion, | 31 |
| however slight, of any part
of the body of one person or of any | 32 |
| animal or object into the sex organ
or anus of another person, |
|
|
|
HB5012 |
- 2 - |
LRB093 19071 LCB 46845 b |
|
| 1 |
| including but not limited to cunnilingus,
fellatio or anal | 2 |
| penetration. Evidence of emission of semen is not
required to | 3 |
| prove sexual penetration.
| 4 |
| "Stay away" means to refrain from both physical presence | 5 |
| and nonphysical contact with the petitioner directly, | 6 |
| indirectly, or through third parties who may or may not know of | 7 |
| the order. "Nonphysical contact" includes, but is not limited | 8 |
| to, telephone calls, mail, e-mail, fax, and written notes. | 9 |
| (Source: P.A. 93-236, eff. 1-1-04.)
| 10 |
| (740 ILCS 22/202)
| 11 |
| Sec. 202. Commencement of action; filing fees.
| 12 |
| (a) An action for a civil no contact order is commenced:
| 13 |
| (1) independently, by filing a petition for a civil no | 14 |
| contact order in any civil court,
unless specific courts | 15 |
| are designated by local rule or order; or
| 16 |
| (2) in conjunction with a
delinquency
petition or a | 17 |
| criminal prosecution, by filing a petition for a civil no | 18 |
| contact
order under
the same case number as the delinquency | 19 |
| petition or criminal prosecution, to be
granted
during | 20 |
| pre-trial release of a defendant, with any dispositional | 21 |
| order issued
under Section
5-710 of the Juvenile Court Act | 22 |
| of 1987 or as a condition of release,
supervision,
| 23 |
| conditional discharge, probation, periodic imprisonment, | 24 |
| parole, or mandatory
supervised
release, or in conjunction | 25 |
| with imprisonment or a bond forfeiture warrant,
provided | 26 |
| that (i) the violation is alleged in an information, | 27 |
| complaint,
indictment, or
delinquency
petition on file and | 28 |
| the alleged victim is a person protected by this Act, and
| 29 |
| (ii) the
petition, which is filed by the State's Attorney, | 30 |
| names a victim of the alleged
crime as a
petitioner.
| 31 |
| (b) Withdrawal or dismissal of any petition for a
civil no | 32 |
| contact order
prior to adjudication where the petitioner is | 33 |
| represented by the State shall
operate as a dismissal without | 34 |
| prejudice. No action for a civil no contact
order shall be | 35 |
| dismissed because the respondent is being prosecuted for a |
|
|
|
HB5012 |
- 3 - |
LRB093 19071 LCB 46845 b |
|
| 1 |
| crime
against the petitioner. For any action commenced under | 2 |
| item (2) of subsection
(a) of
this Section, dismissal of the | 3 |
| conjoined case (or a finding of not guilty)
shall not require | 4 |
| dismissal of the action for a civil no contact order;
instead, | 5 |
| it may be treated as an independent action and, if necessary | 6 |
| and
appropriate, transferred to a different court or division.
| 7 |
| (c) No fee shall be
charged by the clerk of the court for | 8 |
| filing petitions or modifying or
certifying orders. No
fee
| 9 |
| shall be charged by the sheriff for service by the sheriff of a
| 10 |
| petition, rule, motion, or order in an action commenced under | 11 |
| this
Section.
| 12 |
| (d) The court shall provide, through the office
of the | 13 |
| clerk of the court, simplified forms for
and clerical | 14 |
| assistance to
help with the writing and filing of a petition | 15 |
| under this Section by any
person not represented by counsel.
| 16 |
| (Source: P.A. 93-236, eff. 1-1-04.)
| 17 |
| (740 ILCS 22/204.3 new) | 18 |
| Sec. 204.3. Appointment of counsel. The court may appoint | 19 |
| counsel to represent the petitioner if the respondent is | 20 |
| represented by counsel.
| 21 |
| (740 ILCS 22/213)
| 22 |
| Sec. 213. Civil no contact order; remedy.
| 23 |
| (a) If the court finds that the petitioner has been a | 24 |
| victim of
non-consensual sexual conduct or non-consensual | 25 |
| sexual penetration, a civil no
contact order shall issue; | 26 |
| provided that the petitioner must also satisfy the
requirements | 27 |
| of Section
214 on emergency orders or Section 215 on plenary | 28 |
| orders. The petitioner
shall not be denied a civil no contact | 29 |
| order because the petitioner or the
respondent is a minor. The | 30 |
| court, when
determining whether or not to issue a civil no | 31 |
| contact order, may not
require physical injury on the person of | 32 |
| the victim.
Modification and extension of prior civil no | 33 |
| contact orders shall be in
accordance with this Act.
| 34 |
| (b) A civil no contact order shall order
one or more of the |
|
|
|
HB5012 |
- 4 - |
LRB093 19071 LCB 46845 b |
|
| 1 |
| following:
| 2 |
| (1) order the respondent to stay away from the | 3 |
| petitioner; or
| 4 |
| (2) other injunctive relief necessary or appropriate.
| 5 |
| Order the respondent to stay away from
any other person
| 6 |
| protected by the civil no contact order;
| 7 |
| (3) prohibit the respondent
from abuse, as defined in | 8 |
| this Act, or stalking of the petitioner, as defined
in
| 9 |
| Section 12-7.3 of the Criminal Code of 1961, if the abuse
| 10 |
| or stalking has occurred or otherwise appears likely to | 11 |
| occur if not
prohibited; or
| 12 |
| (4) prohibit the respondent
from
entering or remaining | 13 |
| present at the petitioner's school or place of
employment, | 14 |
| or both, or other specified places at times when the | 15 |
| petitioner is
present, if reasonable, given the balance of | 16 |
| hardships.
Hardships need not be balanced for the court to | 17 |
| enter a stay away
order or prohibit entry if the respondent | 18 |
| has no right to enter the
premises.
| 19 |
| (c) Denial of a remedy may not be based, in whole or in | 20 |
| part, on
evidence that:
| 21 |
| (1) the respondent has cause for any use of force, | 22 |
| unless that
cause satisfies the standards for justifiable | 23 |
| use of force provided
by Article VII of the Criminal Code | 24 |
| of 1961;
| 25 |
| (2) the respondent was voluntarily intoxicated;
| 26 |
| (3) the petitioner acted in self-defense or defense of | 27 |
| another,
provided that, if the petitioner utilized force, | 28 |
| such force was
justifiable under Article VII of the | 29 |
| Criminal Code of 1961;
| 30 |
| (4) the petitioner did not act in self-defense or | 31 |
| defense of
another;
| 32 |
| (5) the petitioner left the residence or household to | 33 |
| avoid
further non-consensual sexual conduct or | 34 |
| non-consensual sexual penetration
by the respondent; or
| 35 |
| (6) the petitioner did not leave the residence or | 36 |
| household to
avoid further non-consensual sexual conduct |
|
|
|
HB5012 |
- 5 - |
LRB093 19071 LCB 46845 b |
|
| 1 |
| or non-consensual sexual
penetration by the respondent.
| 2 |
| (d) Monetary damages are not recoverable as a remedy.
| 3 |
| (Source: P.A. 93-236, eff. 1-1-04.)
| 4 |
| (740 ILCS 22/214)
| 5 |
| Sec. 214. Emergency civil no contact order.
| 6 |
| (a) An emergency civil no contact order shall issue if
the | 7 |
| petitioner satisfies the requirements of this subsection (a). | 8 |
| The
petitioner
shall establish that:
| 9 |
| (1) the court has jurisdiction under Section 206
208 ;
| 10 |
| (2) the requirements of Section 213 are satisfied; and
| 11 |
| (3) there is good cause to grant the remedy, regardless | 12 |
| of
prior service of process or of notice upon the | 13 |
| respondent, because
the harm which that remedy is intended | 14 |
| to
prevent would be likely to occur if the respondent were | 15 |
| given
any prior notice, or greater notice than was actually | 16 |
| given, of
the petitioner's efforts to obtain judicial | 17 |
| relief.
| 18 |
| An emergency civil no contact order shall be issued by the | 19 |
| court if it appears from the contents of the petition and the | 20 |
| examination of the petitioner that the averments are sufficient | 21 |
| to indicate nonconsensual sexual penetration by the respondent | 22 |
| and to support the granting of relief under the issuance of the | 23 |
| civil no contact order.
| 24 |
| An emergency civil no contact order shall be issued if the | 25 |
| court finds that subsections (1), (2), and (3) above are met.
| 26 |
| (b) If the respondent appears in court for
this hearing for | 27 |
| an emergency order, he or she may elect to file a
general | 28 |
| appearance and testify. Any resulting order may be an emergency
| 29 |
| order, governed by this Section. Notwithstanding the | 30 |
| requirements of
this Section, if all requirements of Section | 31 |
| 215 have been met, the
court may issue a plenary order.
| 32 |
| (c) Emergency orders; court holidays and evenings.
| 33 |
| (1) When the court is unavailable at the close
of | 34 |
| business, the petitioner may file a petition for a 21-day
| 35 |
| emergency order before any available circuit judge or |
|
|
|
HB5012 |
- 6 - |
LRB093 19071 LCB 46845 b |
|
| 1 |
| associate
judge who may grant relief under this Act. If the | 2 |
| judge finds that
there is an immediate and present danger | 3 |
| of
abuse against the petitioner and
that the petitioner has | 4 |
| satisfied the prerequisites set forth in
subsection (a), | 5 |
| that judge may issue an emergency
civil no contact order.
| 6 |
| (2) The chief judge of the circuit court
may designate | 7 |
| for each county in the circuit at least one judge to
be | 8 |
| reasonably available to issue orally, by telephone, by | 9 |
| facsimile,
or otherwise, an emergency civil no contact | 10 |
| order at all times, whether
or not the court is in session.
| 11 |
| (3) Any order issued under this
Section and any | 12 |
| documentation in support of the order shall be certified
on | 13 |
| the next court day to the appropriate court. The clerk of | 14 |
| that
court shall immediately assign a case number, file the | 15 |
| petition,
order, and other documents with the court, and | 16 |
| enter the order of
record and file it with the sheriff for | 17 |
| service, in accordance with
Section 222. Filing the | 18 |
| petition shall commence proceedings for
further relief | 19 |
| under Section 202. Failure to comply with the
requirements | 20 |
| of this paragraph (3) does not affect the validity of the
| 21 |
| order.
| 22 |
| (Source: P.A. 93-236, eff. 1-1-04.)
| 23 |
| (740 ILCS 22/217)
| 24 |
| Sec. 217. Contents of orders.
| 25 |
| (a) Any civil no contact order shall describe each remedy | 26 |
| granted by
the court, in reasonable detail and
not by reference | 27 |
| to any other document, so that the respondent may
clearly | 28 |
| understand what he or she must do or refrain from doing.
| 29 |
| (b) A civil no contact order shall further state the | 30 |
| following:
| 31 |
| (1) The name of each petitioner that the court finds | 32 |
| was the victim of
non-consensual sexual conduct or | 33 |
| non-consensual sexual penetration by the
respondent and
| 34 |
| the name of each other person protected by the order and | 35 |
| that the
person is protected by this Act .
|
|
|
|
HB5012 |
- 7 - |
LRB093 19071 LCB 46845 b |
|
| 1 |
| (2) The date and time the civil no contact order was | 2 |
| issued,
whether it is an emergency or plenary order, and | 3 |
| the
duration of the order.
| 4 |
| (3) The date, time, and place for any scheduled hearing | 5 |
| for
extension of that civil no contact order or for another | 6 |
| order of
greater duration or scope.
| 7 |
| (4) For each remedy in an emergency civil no contact | 8 |
| order, the
reason for entering that remedy without prior | 9 |
| notice to the respondent
or greater notice than was | 10 |
| actually given.
| 11 |
| (5) For emergency civil no contact orders, that the | 12 |
| respondent may petition the court, in accordance with | 13 |
| Section 218.5, to reopen the order if he or she did not | 14 |
| receive actual prior notice of the hearing as required | 15 |
| under Section 209 of this Act and if the respondent alleges | 16 |
| that he or she had a meritorious defense to the order or | 17 |
| that the order or its remedy is not authorized by this Act.
| 18 |
| (c) A civil no contact order shall include the following | 19 |
| notice,
printed in conspicuous type: "Any knowing violation of | 20 |
| a civil no contact
order is a Class A misdemeanor. Any second | 21 |
| or subsequent violation is a
Class 4 felony."
| 22 |
| (Source: P.A. 93-236, eff. 1-1-04.)
| 23 |
| (740 ILCS 22/218)
| 24 |
| Sec. 218. Notice of orders.
| 25 |
| (a) Upon issuance of any civil no contact order, the clerk | 26 |
| shall
immediately, or on the next court day if an emergency | 27 |
| order is issued in
accordance with subsection (c) of Section | 28 |
| 214:
| 29 |
| (1) enter the order on the record and file it in | 30 |
| accordance with the
circuit court procedures; and
| 31 |
| (2) provide a file stamped copy of the order to the | 32 |
| respondent, if
present, and to the petitioner.
| 33 |
| (b) The clerk of the issuing judge shall, or the petitioner | 34 |
| may, on the
same day that a civil no contact order is issued, | 35 |
| file a certified copy of that
order with the sheriff or other |
|
|
|
HB5012 |
- 8 - |
LRB093 19071 LCB 46845 b |
|
| 1 |
| law enforcement officials charged with
maintaining Department | 2 |
| of State Police records or charged with serving the
order upon | 3 |
| the respondent. If the order was issued in accordance with
| 4 |
| subsection (c) of Section 214, the clerk shall, on the next | 5 |
| court day, file a
certified copy of the order with the Sheriff | 6 |
| or other law enforcement officials
charged with maintaining | 7 |
| Department of State Police records.
| 8 |
| (c) Unless the respondent was present in court when the | 9 |
| order was
issued, the sheriff, other law enforcement official, | 10 |
| or special process server
shall promptly serve that order upon | 11 |
| the respondent and file proof of such
service in the manner | 12 |
| provided for service of process in civil proceedings. If
| 13 |
| process has not yet been served upon the respondent, it shall | 14 |
| be served with
the order or short form notification. A single | 15 |
| fee may be charged for service
of an order obtained in civil | 16 |
| court, or for service of such an order together
with process, | 17 |
| unless waived or deferred under Section 208.
| 18 |
| (d) If the person against whom the civil no contact order | 19 |
| is issued is
arrested and the written order is issued in | 20 |
| accordance with subsection (c) of
Section 214 and received by | 21 |
| the custodial law enforcement agency before
the respondent or | 22 |
| arrestee is released from custody, the custodial law
| 23 |
| enforcement agent shall promptly serve the order upon the | 24 |
| respondent or
arrestee before the respondent or arrestee is | 25 |
| released from custody. In no
event shall detention of the | 26 |
| respondent or arrestee be extended for hearing
on the petition | 27 |
| for civil no contact order or receipt of the order issued under
| 28 |
| Section 214 of this Act.
| 29 |
| (e) Any order extending, modifying, or revoking any civil | 30 |
| no contact
order shall be promptly recorded, issued, and served | 31 |
| as provided in this
Section.
| 32 |
| (f) Upon the request of the
petitioner, within 24 hours of | 33 |
| the issuance of a civil no contact order, the
clerk of the | 34 |
| issuing judge shall
send written notice of the order along with
| 35 |
| a certified copy of the order to any school, college, or | 36 |
| university at which
the
petitioner is enrolled.
|
|
|
|
HB5012 |
- 9 - |
LRB093 19071 LCB 46845 b |
|
| 1 |
| (Source: P.A. 93-236, eff. 1-1-04.)
| 2 |
| (740 ILCS 22/218.5 new) | 3 |
| Sec. 218.5. Modification; reopening of orders. | 4 |
| (a) Except as otherwise provided in this Section, upon | 5 |
| motion by the petitioner, the court may modify an emergency or | 6 |
| plenary civil no contact order by altering the remedy, subject | 7 |
| to Section 213. | 8 |
| (b) After 30 days following entry of a plenary civil no | 9 |
| contact order, a court may modify that order only when a change | 10 |
| in the applicable law or facts since that plenary order was | 11 |
| entered warrants a modification of its terms.
| 12 |
| (c) Upon 2 days' notice to the petitioner, or such shorter | 13 |
| notice as the court may prescribe, a respondent subject to an | 14 |
| emergency civil no contact order issued under this Act may | 15 |
| appear and petition the court to rehear the original or amended | 16 |
| petition. Any petition to rehear shall be verified and shall | 17 |
| allege the following:
| 18 |
| (1) that the respondent did not receive prior notice of | 19 |
| the initial hearing in which the emergency order was | 20 |
| entered under Sections 209 and 214; and
| 21 |
| (2) that the respondent had a meritorious defense to | 22 |
| the order or any of its remedies or that the order or any | 23 |
| of its remedies was not authorized by this Act.
| 24 |
| Section 99. Effective date. This Act takes effect September | 25 |
| 1, 2004.
|
|