If you were attacked and forced to defend yourself, then its possible that self defense may apply.  Self defense is an affirmative defense that will excuse the criminal conduct.  Essentially an affirmative defense is like saying, “I did it, but I had a good reason to do it.”  In order to prove self-defense, the defendant needs to show that they were under an immediate threat of harm and committing the battery was the only to extricate themselves from that potentially harmful situation.

In order to claim self-defense, the defense will need to file a notice of affirmative defense with the court in order to put the prosecution on notice that this defense will be used at trial.  Once self-defense is filed, the defendant should also file a motion for disclosure to the defense asking the prosecution to turn over any violent criminal history of the alleged victim they are aware of.  Courts have ruled when a defendant claims self-defense, any prior incidents of violent behavior committed by the alleged victim can potentially be admissible at trial.  This includes convictions for any violent crimes and any incidents of violent behavior, even if they were not charged or reported to the police.

To admit previous violent behavior of an alleged victim, the defense will need a certified copy of the conviction from the circuit clerk’s office where the conviction occurred.  In the case of a violent incident that was not charge, the defense will need to call a witness to testify about the violent incident.  If the defense wishes to admit evidence of any prior incidents that show the alleged victim has a propensity for violence, then they will likely have to file a motion in limine outlining exactly what they are seeking to admit at trial.  The judge will hear the motion prior to trial and decide on whether the jury will be allowed to hear the evidence.

Once a Judge grants the Petitioner’s Order of Protection, that order will contain several things the Respondent will be prevented from doing and in some cases, some things that the Respondent will be required to do.  If a Respondent does any of the prohibited activities, it will be possible for the Respondent to be charged with a violation of an order of protection.  These activities usually include contact with the alleged victim or any other protected party, contact with a protected party’s home address or place of employment, or using a third party to facilitate contact with a protected party.

If the parties in an order of protection are married or have children together, it is possible for the order of protection to address possession of assets, child support, and child visitation.  For a married couple with children, an order of protection will serve as a mini-divorce and there will be a resolution for a lot of items that are usually settled in a divorce case.  These orders for child support, visitation, and distribution of assets will last as long as the order of protection is effective or it is superseded by an order for a dissolution of marriage.

Penalties for Violating an Order of Protection

While an Order of Protection is civil in nature, violation of an order of protection can lead to criminal charges.  When the petitioner feels that an order of protection is violated, they will contact the police and report the violating behavior.  The police will then be able to look at the order issued by the judge and they will make a field determination whether they think the order has been violated.  If the police feel the order has been violated, which can be a very low bar such as the respondent sending a text message, then the police will either arrest the offending party if they are present, or they will seek an arrest warrant from a judge for the offending party.

A first offense violation of an order of protection is usually charged as a Class A misdemeanor, which can involve up to a year in jail, fine of up to $2,500 plus any costs, and probation or conditional discharge for up to 2 years.

A violation of an order of protection can be charged as a Class 4 felony based on the Defendant’s prior record.  If a person commits a violation of an order of protection and has previously been convicted of any of the following:

• Domestic Battery
• Violation of an Order of Protection
• Murder/Attempted Murder
• Aggravated Battery
• Stalking
• Criminal Sexual Assault
• Kidnapping
• Unlawful Restraint
• Aggravated Arson
• Assault of a Child
• Aggravated Discharge of a Firearm

A Class 4 Felony Violation of an Order of Protection has a possible sentence of 1 to 3 years in the Department of Corrections.

The court shall impose a minimum penalty of 24 hours imprisonment for defendant’s second or subsequent violation of any order of protection; unless the court explicitly finds that an increased penalty or such period of imprisonment would be manifestly unjust.

As an Illinois Criminal Defense Attorney, I have consulted with hundreds of individuals who are facing domestic battery charges.  The question that is asked most often is whether the alleged victim in the case can simply drop the charges.  The short answer is no.  In Illinois, domestic battery charges are prosecuted by the State’s Attorney’s Office and not the alleged victim.  Additionally, most jurisdictions have adopted a “no drop” policy when it comes to domestic battery cases.  This means the State will continue prosecuting the case despite the wishes, or even the cooperation, of the alleged victim.

Many times, persons accused of domestic battery are eager to have the alleged victim contact the State’s Attorney’s Office to recant their statements or to ask the charge to be dismissed.  This is often a mistake and can pose several dangers to the defense.  If the State feels a defendant is trying to coerce a witness, they may file additional charges for witness tampering.  For this reason, criminal defendants should always be strictly cautioned against communicating with potential witnesses for the State. Under Illinois law:

A person who, with intent to deter any party or witness from testifying freely, fully and truthfully to any matter pending in any court, forcibly detains such party or witness, or communicates, directly or indirectly, to such party or witness any knowingly false information or a threat of injury or damage to the property or person of any individual or offers or delivers or threatens to withhold money or another thing of value to any individual commits a Class 3 felony.

Moreover, If the State suspects that the Defendant coerced the alleged victim into not testifying against them, the prosecution may be able to admit the alleged victim’s previous statements into evidence, even if they are not available to testify at trial.  This is done under the theory for forfeiture by wrongdoing.  Basically, if the court rules the Defendant had a hand in making the alleged victim unavailable for trial, not only does all of the alleged victim’s statements come into evidence but the defense forfeits their right to cross examination.  Having the alleged victim’s statements admitted into evidence without the ability to cross-examine them can severely hinder the defense’s case at trial.

Additionally, defendants in domestic battery cases are usually prohibited from contact with the alleged victim through bond conditions assigned by the court.  This includes, speaking with the alleged victim, phone calls, text messages, social media, and sending messages through third parties.  Should the defendant violate these bond conditions they would be subject to a revocation of their bond, which would require them to stay in custody pending the resolution of their case, and possible new criminal charges for a violation of bond conditions.

Can the alleged victim simply change their story?

If an alleged victim decides to change their story prior to trial, this will not prevent the State from continuing to prosecute the case.  Should the alleged victim take the stand and give testimony that is significantly different than what they reported to the police, then the State may attempt to impeach them based on their prior statements, statements of third party witnesses, physical evidence such as photographs of injuries or ripped clothing, 911 calls, etc.  This may seem unusual that the prosecution would be impeaching their own witness, but it is common practice in domestic battery cases.

Moreover, if a Defendant is caught trying to persuade a witness to testify in a manner that supports the Defendant’s theory of the case, they could be charged with suborning perjury, a class 4 felony.  Telling an alleged victim to make a statement that “nothing happened” will be interpreted by prosecutors and judges as criminal behavior and will likely result in new felony charges against the Defendant.  Additionally, if the Defendant is caught trying to coerce a witness, it will have a severely negative impact on the pending domestic battery case in that the prosecutor will be less likely to negotiate a favorable disposition and even if the witness does change their story, their original statements will still be admissible at trial.  This is especially a concern for defendants who are in custody trying to contact alleged victims using the jail’s phone systems, as all of these calls are recorded and monitored by the jail staff.

When a person charged with Domestic Battery and is held in custody, all their communications, except communications with their legal counsel, are subject to monitoring.  If the inmate attempts to contact the alleged victim in their case, the jail will send a copy of that communication to the State’s Attorney’s office.  Once the State’s Attorney’s Office receives the communication, they will determine whether to file additional charges.  With more and more technology being made available to inmates, such as laptops and ipads, this expands the means with which an inmate may attempt to contact a witness in their case and try to persuade them to change their story.  All of these avenues of communication with the outside world are being monitored by the jail staff.  If an inmate attempts to use an ipad or another inmate to communicate with the alleged victim in their case, they will likely have more charges filed against them.

Often times, alleged victims are weary of making any statements that are inconsistent with the original statement they made to the police.  This is because most State’s Attorneys Offices employ victim witness coordinators to assist in the prosecution of domestic battery cases.  The primary job for a victim witness coordinator is to ensure that the victim will be available to testify and do so in a manner that is favorable to the prosecution.  Most of the time, alleged victims are reminded about the penalties for filing a false police report and for perjuring themselves on the stand.  These reminders serve to ensure an alleged victim’s attendance at trial and that their testimony will be consistent with their previous statements to law enforcement.

Because of this, the alleged victim is often fearful of the possibility of criminal prosecution if they change their story. Victim witness coordinators also work closely with social service agencies like DCFS and may even threaten alleged victims with the prospect of losing custody of their children if they do not assist the state with the prosecution of the suspected abuser.