Enforcing Protective Orders Through Contempt

Proceedings

Alicia Aiken, LAF

Neha Lall, Life Span

OP’s May be Enforced through Contempt Proceedings

“A violation of any valid Illinois order of protection, 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 where the act or acts which violated the order of protection were committed.” 750 ILCS 60/223(b)

Requirements for Enforcement

Actual knowledge of the contents of the order. 750 ILCS 60/223(d)

There need not be any physical manifestations of abuse on the person of the victim. 750 ILCS 60/223(f)

Direct v. Indirect Contempt

Direct Contempt: violation occurs in the presence of the court

Indirect Contempt: violation occurs outside of the presence of court

Civil v. Criminal Contempt

Distinction lies in the purpose of Petition:

Civil Contempt: to compel future compliance with a court order

Criminal Contempt: to punish past violation of the order

Civil v. Criminal Contempt

CIVIL CRIMINAL

Purpose: Compel Compliance Punish Noncompliance

Legal Mechanism: Rule to Show Cause Petition for Adjudication of Contempt

Standard of Proof: Preponderance of Evidence

Beyond a Reasonable Doubt

Right to Counsel: No Yes

Civil v. Criminal Contempt

CIVIL CRIMINAL

5th Amendment Right :

No Yes

Right to Purge Contempt:

Yes No

Sanctions: Imprisonment to compel compliance

FineImprisonment

Indirect Criminal Contempt Proceedings

LSC-Recipients Can Bring Indirect Criminal Contempt Petitions

“Criminal Proceeding” defined as an adversary process prosecuted by a public officer.

If “professional responsibility” requires criminal representation arising out of prior or current rep.

Prohibitions on assistance in criminal proceedings only apply to LSC funds.

45 C.F.R. Sec. 1613

Filing Requirements

File Petition for Adjudication of Indirect Criminal Contempt

Issue new Summons– Unclear if new summons is required– Better practice is to do so, since this is technically a

separate cause

Service of Petition

Body Attachments

IDVA specifically allows for issuance of a body attachment in contempt proceedings if petition sets forth facts evidencing an immediate danger that the respondent will flee the jurisdiction, conceal a child, or inflict physical abuse on the petitioner or minor children.

Bond shall be set unless specifically denied in writing.

750 ILCS 60/223(b)(1)-(2)

Procedural Requirements

5th Amendment Rights Attach– Respondent need not file a Response– Burden may not be shifted to Respondent

Rule to Show Cause NOT appropriate

Appointment of Counsel– Court must appoint counsel for Respondent

if not already represented

Minor v. Serious Criminal Contempt

Minor Contempt: – No Right to Jury Trial– Sanctions must be $500 or less and/or

incarceration of less than 6 months

Serious Contempt:– Right to Jury Trial– Sanctions of more than $500 and/or

incarceration of more than 6 months

Cheff v. Schnackenberg, 384 U.S. 373 (1966).

Hearing

Presumption of Innocence Privilege against self-incrimination Right to introduce evidence on own

behalf Right to present witness Right to public trial Right to be present at trial Right to substitution of judge

Requirements of Contempt Judgment Order

Must be written order signed by judge Must recite jurisdiction Must set forth facts on which the contempt is

based Must contain a clear and unambiguous finding of

contempt Must recite sanctions imposed Certified orders should be served on Respondent

along with a copy given to the warden of the institution along with commitment order

Right to Appeal

Respondent should be advised of right to appeal pursuant to Supreme Court Rule 605(a)

May be appealed as any other criminal case if sanctions have been imposed

Imposition of Sanctions

Contemnor must be given an opportunity to make a statement in allocution prior to sanctions being imposed.

Taylor v. Hayes, 418 U.S. 488 (1974)

Penalties for Violation

IDVA says the following sanctions are appropriate:– Incarceration– Payment of Restitution– Payment of Attorney’s Fees and Costs– Community Service

750 ILCS 60/223(g)

Incarceration

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

(1) Increase penalties for subsequent violations(2) Impose a minimum penalty of 24 hours

imprisonment for respondent’s first violation (3) Impose a minimum penalty of 48 hours

imprisonment for respondent’s second or subsequent violation unless manifestly unjust

750 ILCS 60/223(g)(3)

When is a Contempt Petition a Good Idea?

When the State’s Attorney will not prosecute a violation

Contempt proceeding will not further endanger victim– Respondent will likely not be incarcerated

during proceedings– Not for high lethality cases!

When is a Contempt Petition a Good Idea?

Non-violent violations– Phone calls/text messages– Emails/internet communications– Third Party Contact

Cases where Respondent will be deterred by a Contempt Finding