Chicago Criminal Lawyer Blog
The laws and rules relating to orders of protection in Chicago normally stem from domestic disputes. Typically, spouses seeking orders of protection are estranged or facing domestic violence. However, that does not mean that the law does not touch on other domesticated arrangements including the relationships between roommates and family members. This is a serious legal process that has significant financial implications for the party that is found to be at fault. It can even lead to a criminal record which filters down to job security, visitation rights, and custody disputes. That is why defendants in such cases will fight tooth and nail to ensure that an order of protection is not listed against them. Needless to say that the faults in writing the legislation, the police procedures as well as its wide implications has meant that it is open for abuse. This abuse is primarily associated with the application for protective orders based on false or incomplete information.
The Role of the Attorney in Getting Justice
Fact finding is an essential aspect of the protective order and will ultimately determine whether it is allowed or not. Therefore it is the responsibility of the defendant’s attorney to ensure that all relevant facts are considered. Some might be aggravating whilst others might be mitigating. The classic defense position is to maximize the mitigating issues whilst simultaneously minimizing the aggravating aspects. So far the courts have not been too vigilant in punishing those who cause them to issue unwarranted orders of protection. For example, there is sparse use of the perjury provisions of the law in these cases; partly due to the inherent belief within the criminal justice system that orders of protection lie more within the ambit of family law than criminal law.
In that instance, the courts are justified under the current legal regime because orders of protection in Chicago are handled under the civil procedure framework. Some legal experts have commented that orders of protection are only different from the criminal sanctions in respect of the rights of the defendant. Otherwise the consequences upon a conviction or adverse finding are identical. This may not always be the case. For example, whereas a violation of an order of protection can land the defendant in jail, in criminal cases it is the jail term that often starts the punishment phase of the case. Moreover the widespread abuse of orders of protection has meant that many other courts are reluctant to rely on them alone when making judgments about the citizens who are before them.
Understanding the Origins of the Protective Orders
Defendants would do well to understand why and how they are sometimes subjected to a civil order of protection. It all stems from domestic violence. However the definition of that violence is still a contested issue in the minds of many. For example many defendants erroneously assume that violence in this context is merely a physical phenomenon, whereas the courts include different types of violence in their definitions. Some of these categorizations include stalking, harassment, phone threats, coercion, abuse of people with disabilities, forcing others to witness abuse and destruction of property.
The one area in which the courts are fairly consistent and inflexible is the definition of a victim in these cases. It is the one category of law that is limited to the household and family members (see 750 ILCS 60). The same acts committed in a different context would constitute entirely separate criminal cases. It is the relationship between the victim and defendant that is critical when allowing an order of protection. Some defense lawyers based their strategy on challenging alleged familial or domesticated relationships. Are you involved in an order of protection case? Need an accomplished and experienced attorney to help you win your case? Contact David Freidberg Attorney at Law today at 312-560-7100 to get the justice that you deserve.
