Keeping the Burglars at Bay: A Review of Home Invasion Laws in Illinois

file000340814082Home invasions have been the fodder for criminal defense attorneys in Illinois for ages. Recently there has been a growing conversation around the response of the homeowner and whether he or she is legally protected. States like Florida have a stand-your-ground provision which has sometimes led to tragic consequences. To make matters worse, some of these incidents are alleged to involve an element of racial animus. One need only look back at the circus surrounding the George Zimmerman case to realize that self-defense is never as simple as it looks on paper when the laws are first drafted.

Burglaries are going to continue and defense lawyers are going to continue to use every trick in the book to get an acquittal or generous sentence for their clients. This article highlights some of the important considerations for the law as it stands but also the implications for defendants and homeowners.

A Law that is a Series of Compromises and Interests

The legislature in Illinois has been busy. It is a crime to enter a building with the intention of committing a crime inside. That is upgraded to home invasion when the dwelling is inhabited. Aggravating factors include causing injury or using force or threats or even arms during the invasion. A less serious crime is that of trespass which mainly involves entering a property without permission regardless of the intention. Depending on the circumstances and the damage caused, the penalties for home invasion can be heavy. Illinois recognizes burglary even when the property invaded is a car. Other possible secondary crimes associated with home invasion include theft or any other felony. Judges are instructed to elevate the sentencing if the building is a daycare center, school, or place of worship according to 720 Ill. Comp. Stat. § 5/19-1.These elevations make sense when one considers the issues of public confidence in the system as well as the possibility that vulnerable people may be resident in the buildings that are affected.

Criminal lawyers need take note of some fine distinctions between the types of burglary that are committed. For example, in Illinois plain burglary and residential burglary are considered to be mutually exclusive crimes, which means that the defense must pay particularly attention to the type of buildings and their occupants, if any. The description of the building can become a contested issue within the courts with important implications for the defendant. There are special considerations if false pretenses and impersonation are used in order to gain access according to 720 Ill. Comp. Stat. § 5/19-3. Where the intent is not explicit by virtue of a confession, the court can make inferences based on the circumstances. This can be tricky for defense attorneys since the prosecution need not convince the court of what was going on the defendant’s mind as long as they committed acts that constitute a felony crime following the invasion. Such inferences are often reached by the court even when the attempt is not successful.

Special Considerations for Home Invasions

Illinois has taken a particularly strict stance on home invasions. The constituent elements involve knowing that the resident is there and then using a weapon, threats, or sexual assault in order to commit the crime. Given the severity of penalties for this aggravated crime, some defense attorneys have been able to successfully argue that the minimum standard was not met when the invader surrenders as soon as they realize that there is someone present in the home. This is what is known as an affirmative defense which requires evidence of no harm being committed in order to scale the offense down to trespass.

If you are being charged with a home invasion crime, you need the assistance of an experienced attorney who will give you the best chance at winning your case. Contact David Freidberg Attorney at Law at 312-560-7100 to preserve your freedom.


(image courtesy of J. Durham)

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