HB0192ham001 97TH GENERAL ASSEMBLY

Rep. Roger L. Eddy

Filed: 3/11/2011

09700HB0192ham001 LRB097 03001 AJO 52418 a

AMENDMENT TO HOUSE BILL 192

AMENDMENT NO. ______. Amend House Bill 192 by replacing everything after the enacting clause with the following:

"Section 5. The Civil No Contact Order Act is amended by changing Sections 213 and 220 as follows:

(740 ILCS 22/213)

Sec. 213. Civil no contact order; remedies.

(a) If the court finds that the petitioner has been a victim of non-consensual sexual conduct or non-consensual sexual penetration, a civil no contact order shall issue; provided that the petitioner must also satisfy the requirements of Section 214 on emergency orders or Section 215 on plenary orders. The petitioner shall not be denied a civil no contact order because the petitioner or the respondent is a minor. The court, when determining whether or not to issue a civil no contact order, may not require physical injury on the person of the victim. Modification and extension of prior civil no contact orders shall be in accordance with this Act.

(b) (Blank).

(b-5) The court may provide relief as follows:

(1) prohibit the respondent from knowingly coming within, or knowingly remaining within, a specified distance from the petitioner;

(2) restrain the respondent from having any contact, including nonphysical contact, with the petitioner directly, indirectly, or through third parties, regardless of whether those third parties know of the order;

(3) prohibit the respondent from knowingly coming within, or knowingly remaining within, a specified distance from the petitioner's residence, school, day care or other specified location;

(4) order the respondent to stay away from any property or animal owned, possessed, leased, kept, or held by the petitioner and forbid the respondent from taking, transferring, encumbering, concealing, harming, or otherwise disposing of the property or animal; and

(5) order any other injunctive relief as necessary or appropriate for the protection of the petitioner.

(b-6) When the petitioner and the respondent attend the same public or private elementary, middle, or high school, the court when issuing a civil no contact order and providing relief shall consider, among the other facts of the case, the severity of the act, any continuing physical danger or emotional distress to the petitioner, the educational rights guaranteed to the petitioner and respondent under federal and state laws, the availability of a transfer to another school, change of placement or change of program of the respondent, the expense, difficulty, and educational disruption that would be caused by a transfer of the respondent to another school, and any other relevant facts of the case and the expense, difficulty, and educational disruption that would be caused by a transfer of the respondent to another school. The court may order that the respondent not attend the public or private elementary, middle, or high school attended by the petitioner, order that the respondent accept a change of placement or program, as determined by the School District, or place restrictions on the respondent's movements within the school attended by the petitioner. The respondent bears the burden of proving by a preponderance of the evidence that a transfer, change of placement or change of program of the respondent is not available. The respondent also bears the burden of production with respect to the expense, difficulty, and educational disruption that would be caused by a transfer of the respondent to another school. A transfer, change of placement or change of program is not unavailable solely on the ground that the respondent does not agree with the School District's transfer or change of placement or program or the respondent fails or refuses to consent or otherwise take actions required to effectuate a transfer, change of placement or change of program. When a court orders a respondent to stay away from the public school attended by the petitioner and the respondent requests a transfer to another attendance center within the respondent's school district, the school district shall have sole discretion to determine the attendance center to which the respondent is transferred. In the event the court order results in a transfer of the minor respondent to another attendance center, a change in the respondent's placement or change of the respondent's program, the parents, guardian or legal custodian of the respondent are responsible for transportation and other costs associated with the transfer or change.

(b-7) The court may order the parents, guardian or legal custodian of a minor respondent to take certain actions or to refrain from certain actions to ensure that the respondent complies with the order. In the event the court orders a transfer of the respondent to another school, the parents or legal guardians of the respondent are responsible for transportation and other costs associated with the change of school by the respondent.

(c) Denial of a remedy may not be based, in whole or in part, on evidence that:

(1) the respondent has cause for any use of force, unless that cause satisfies the standards for justifiable use of force provided by Article VII of the Criminal Code of 1961;

(2) the respondent was voluntarily intoxicated;

(3) the petitioner acted in self-defense or defense of another, provided that, if the petitioner utilized force, such force was justifiable under Article VII of the Criminal Code of 1961;

(4) the petitioner did not act in self-defense or defense of another;

(5) the petitioner left the residence or household to avoid further non-consensual sexual conduct or non-consensual sexual penetration by the respondent; or

(6) the petitioner did not leave the residence or household to avoid further non-consensual sexual conduct or non-consensual sexual penetration by the respondent.

(d) Monetary damages are not recoverable as a remedy.

(Source: P.A. 96-311, eff. 1-1-10.)

(740 ILCS 22/220)

Sec. 220. Enforcement of a civil no contact order.

(a) Nothing in this Act shall preclude any Illinois court from enforcing a valid protective order issued in another state.

(b) Illinois courts may enforce civil no contact orders through both criminal proceedings and civil contempt proceedings, unless the action which is second in time is barred by collateral estoppel or the constitutional prohibition against double jeopardy.

(b-1) The court shall not hold a school district or any of its employees in civil or criminal contempt unless the school district has been allowed to intervene.

(b-2) The court may hold the parents, guardian or legal custodian of a minor respondent in civil or criminal contempt for a violation of any provision or any order entered under this Act, for conduct of the minor respondent in violation of this Act if the parents, guardian or legal custodian directed, encouraged, or assisted the respondent minor in such conduct.

(c) Criminal prosecution. A violation of any civil no contact order, whether issued in a civil or criminal proceeding, shall be enforced by a criminal court when the respondent commits the crime of violation of a civil no contact order pursuant to Section 219 by having knowingly violated:

(1) remedies described in Section 213 and included in a civil no contact order; or

(2) a provision of an order, which is substantially similar to provisions of Section 213, in a valid civil no contact order which is authorized under the laws of another state, tribe, or United States territory.

Prosecution for a violation of a civil no contact order shall not bar a concurrent prosecution for any other crime, including any crime that may have been committed at the time of the violation of the civil no contact order.

(d) Contempt of court. A violation of any valid Illinois civil no contact order, 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 of where the act or acts which violated the civil no contact order were committed, to the extent consistent with the venue provisions of this Act.

(1) In a contempt proceeding where the petition for a rule to show cause or petition for adjudication of criminal contempt sets forth facts evidencing an immediate danger that the respondent will flee the jurisdiction or inflict physical abuse on the petitioner or minor children or on dependent adults in the petitioner's care, the court may order the attachment of the respondent without prior service of the petition for a rule to show cause, the rule to show cause, the petition for adjudication of criminal contempt or the adjudication of criminal contempt. Bond shall be set unless specifically denied in writing.

(2) A petition for a rule to show cause or a petition for adjudication of criminal contempt for violation of a civil no contact order shall be treated as an expedited proceeding.

(e) Actual knowledge. A civil no contact order may be enforced pursuant to this Section if the respondent violates the order after the respondent has actual knowledge of its contents as shown through one of the following means:

(1) by service, delivery, or notice under Section 208;

(2) by notice under Section 218;

(3) by service of a civil no contact order under Section 218; or

(4) by other means demonstrating actual knowledge of the contents of the order.

(f) The enforcement of a civil no contact order in civil or criminal court shall not be affected by either of the following:

(1) the existence of a separate, correlative order, entered under Section 202; or

(2) any finding or order entered in a conjoined criminal proceeding.

(g) Circumstances. The court, when determining whether or not a violation of a civil no contact order has occurred, shall not require physical manifestations of abuse on the person of the victim.

(h) Penalties.

(1) Except as provided in paragraph (3) of this subsection, where the court finds the commission of a crime or contempt of court under subsection (a) or (b) of this Section, the penalty shall be the penalty that generally applies in such criminal or contempt proceedings, and may include one or more of the following: incarceration, payment of restitution, a fine, payment of attorneys' fees and costs, or community service.

(2) The court shall hear and take into account evidence of any factors in aggravation or mitigation before deciding an appropriate penalty under paragraph (1) of this subsection.

(3) To the extent permitted by law, the court is encouraged to:

(i) increase the penalty for the knowing violation of any civil no contact order over any penalty previously imposed by any court for respondent's violation of any civil no contact order or penal statute involving petitioner as victim and respondent as defendant;

(ii) impose a minimum penalty of 24 hours imprisonment for respondent's first violation of any civil no contact order; and

(iii) impose a minimum penalty of 48 hours imprisonment for respondent's second or subsequent violation of a civil no contact order unless the court explicitly finds that an increased penalty or that period of imprisonment would be manifestly unjust.

(4) In addition to any other penalties imposed for a violation of a civil no contact order, a criminal court may consider evidence of any previous violations of a civil no contact order:

(i) to increase, revoke or modify the bail bond on an underlying criminal charge pursuant to Section 110-6 of the Code of Criminal Procedure of 1963;

(ii) to revoke or modify an order of probation, conditional discharge or supervision, pursuant to Section 5-6-4 of the Unified Code of Corrections; or

(iii) to revoke or modify a sentence of periodic imprisonment, pursuant to Section 5-7-2 of the Unified Code of Corrections.

(Source: P.A. 96-311, eff. 1-1-10.)".