A Petition for an Order of Protection may be brought in conjunction with a criminal case, or by itself without any relating criminal proceeding.
An Order of Protection is an extraordinary civil remedy created by the Illinois Legislature which prohibits the Order of Protection Respondent to have contact with or stalk the Order of Protection Petitioner. Emergency Orders of Protection are sometimes entered unilaterally by a judge for a Petitioner who swears before the judge that they have been a victim of domestic violence or are being stalked. The Respondent has a right to a hearing on a Petition for Order of Protection. However, unlike a criminal charge where the State’s burden of proof is beyond a reasonable doubt, to obtain a Plenary Order of Protection, which can be up to two (2) years in scope, the Petitioner need only establish the need for an Order of Protection by a preponderance of the evidence, a much lower burden of proof than in relation to a criminal charge.
An Order of Protection hearing will often encompass far more evidence than a criminal trial. For example, if a person is criminally charged with Domestic Battery the court need only decide whether there was a domestic relationship and whether there was a battery. The issues are very limited in a criminal case and much about the relationship is irrelevant. In other words, it is irrelevant to a judge whether someone in a relationship is cheating, is being stalked or harrassed, or the relationship has a dysfunctional history. All that matters to a criminal judge is whether a person was battered or not.
In an Order of Protection hearing, the Petitioner is given far more leeway to establish the need to be protected by court order from the Respondent. Thus, the nature of the relationship, threats, acts of violence of property destruction are highly relevant to a judge in an Order of Protection hearing. Constitutional issues are not implicated in an Order of Protection hearing as it is civil in nature. For the same reason, hearings on Petitions for Orders of Protection are heard by judges only, not by juries.
Please contact attorney David S. Meyerson at (847) 513-6600 in relation to your Order of Protection case.