Enforcing Protective Orders Through Contempt Proceedings

Alicia Aiken, LAF Neha Lall, Life Span

OP’s May be Enforced through Contempt Proceedings

“A violation of any valid Illinois order of protection, 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 where the act or acts which violated the order of protection were committed.” 750 ILCS 60/223(b)

Requirements for Enforcement

 Actual knowledge of the contents of the order. 750 ILCS 60/223(d)  There need not be any physical manifestations of abuse on the person of the victim. 750 ILCS 60/223(f)

Direct v. Indirect Contempt

 Direct Contempt: violation occurs in the presence of the court  Indirect Contempt: violation occurs outside of the presence of court

Civil v. Criminal Contempt

Distinction lies in the purpose of Petition:  Civil Contempt: to compel future compliance with a court order  Criminal Contempt: to punish past violation of the order

Civil v. Criminal Contempt

Purpose: CIVIL

Compel Compliance

CRIMINAL

Punish Noncompliance

Legal Mechanism:

Rule to Show Cause

Standard of Proof: Right to Counsel:

Preponderance of Evidence No Petition for Adjudication of Contempt Beyond a Reasonable Doubt Yes

Civil v. Criminal Contempt

CIVIL

No

CRIMINAL

Yes

5 th Amendment Right : Right to Purge Contempt: Sanctions:

Yes No Imprisonment to compel compliance  Fine  Imprisonment

Indirect Criminal Contempt Proceedings

LSC-Recipients Can Bring Indirect Criminal Contempt Petitions

 “Criminal Proceeding” defined as an adversary process prosecuted by a public officer.  If “professional responsibility” requires criminal representation arising out of prior or current rep.

 Prohibitions on assistance in criminal proceedings only apply to LSC funds. 45 C.F.R. Sec. 1613

Filing Requirements

 File Petition for Adjudication of Indirect Criminal Contempt  Issue new Summons – – Unclear if new summons is required Better practice is to do so, since this is technically a separate cause  Service of Petition

Body Attachments

 IDVA specifically allows for issuance of a body attachment in contempt proceedings if petition 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.

 Bond shall be set unless specifically denied in writing.

750 ILCS 60/223(b)(1)-(2)

Procedural Requirements

 5 th – Amendment Rights Attach Respondent need not file a Response – Burden may not be shifted to Respondent  to Show Cause NOT appropriate Rule  Appointment of Counsel – Court must appoint counsel for Respondent if not already represented

Minor v. Serious Criminal Contempt



Minor Contempt:

– No Right to Jury Trial – Sanctions must be $500 or less and/or incarceration of less than 6 months 

Serious Contempt:

– Right to Jury Trial – Sanctions of more than $500 and/or incarceration of more than 6 months Cheff v. Schnackenberg, 384 U.S. 373 (1966).

Hearing

       Presumption of Innocence Privilege against self-incrimination Right to introduce evidence on own behalf Right to present witness Right to public trial Right to be present at trial Right to substitution of judge

Requirements of Contempt Judgment Order

      Must be written order signed by judge Must recite jurisdiction Must set forth facts on which the contempt is based Must contain a clear and unambiguous finding of contempt Must recite sanctions imposed Certified orders should be served on Respondent along with a copy given to the warden of the institution along with commitment order

Right to Appeal

 Respondent should be advised of right to appeal pursuant to Supreme Court Rule 605(a)  May be appealed as any other criminal case if sanctions have been imposed

Imposition of Sanctions

Contemnor must be given an opportunity to make a statement in allocution prior to sanctions being imposed.

Taylor v. Hayes, 418 U.S. 488 (1974)

Penalties for Violation

IDVA says the following sanctions are appropriate: – – – – Incarceration Payment of Restitution Payment of Attorney’s Fees and Costs Community Service 750 ILCS 60/223(g)

Incarceration

To the extent permitted by law, the court is encouraged to: (1) (2) (3) Increase penalties for subsequent violations Impose a minimum penalty of 24 hours imprisonment for respondent’s first violation Impose a minimum penalty of 48 hours imprisonment for respondent’s second or subsequent violation unless manifestly unjust 750 ILCS 60/223(g)(3)

When is a Contempt Petition a Good Idea?

 When the State’s Attorney will not prosecute a violation  Contempt proceeding will not further endanger victim – Respondent will likely not be incarcerated during proceedings – Not for high lethality cases!

When is a Contempt Petition a Good Idea?

 Non-violent violations – Phone calls/text messages – – Emails/internet communications Third Party Contact  Cases where Respondent will be deterred by a Contempt Finding