Illinois courts have a new law that allows an individual to seek a restraining order against another. In 2010, state lawmakers in Springfield passed a bill creating a stalking no contact order.
The restraining order that is available under this statute differs from an order of protection and a sexual assault civil no contact order.
An order of protection is intended to be used for a restraining order against a person with whom the petition has a relationship, such as a romantic relationship or familial relationship. A sexual assault no contact order is intended to be used by a person who is the victim of a sex crime against the perpetrator.
State legislators changed the law because these two forms of restraining orders did nothing to protect people who are the victims of stalking. For instance, a person who is the victim of stalking may not qualify as a family or household member per the order of protection statute. And, they may not qualify for a sexual assault no contact order because no crime was committed against them.
The procedure for obtaining a stalking no contact order is found under 740 ILCS 21/1. Just as with an order of protection, the person seeking a restraining order has to file a petition in court. This person is called the petitioner, and the individual against whom they are seeking a restraining order is called the respondent. The person seeking the stalking no contact order will be heard by judge will determine whether to grant a remedy. There is no cost for filing.
If the judge determines that there is enough evidence to issue the emergency order, a deputy from the sheriff’s department will serve the respondent with the order. The emergency order will last from 14 to 21 days. Any contact between respondent and the petitioner during this time could constitute a crime.
Anyone who is the victim of stalking is entitled to seek an order from court.
The term “stalking” is described as follows:
“Stalking” means engaging in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety or the safety of a third person or suffer emotional distress.
740 ILCS 21/10.
Additionally, a “reasonable person” is defined as a person in the petitioner’s circumstances with the petitioner’s knowledge of the respondent and the respondent’s prior acts. See id.
Once service of the emergency order has been effectuated, the respondent is entitled to a hearing. The respondent has an opportunity to defend his or her self in court by presenting evidence including witness testimony and exhibits.
The petitioner can seek several remedies from the judge:
- Prohibiting the respondent from committing or threatening stalking.
- Order the respondent to have no contact with the victim.
- Prohibit the respondent from coming near the victim’s home, school, place of employment or other places frequented by the victim.
- Prohibit the respondent from possessing any firearms or firearm ammunition, and also require the respondent to surrender a Firearm Owner Identification Card (FOID).
- Issue an injunction preventing the respondent from engaging in certain conduct.
After the hearing, if the judge determines that it is appropriate to enter an order for protection of the petitioner, the court will enter a plenary order. A plenary order prohibiting stalking and contact by the respondent can last for up to two years.
If the respondent makes contact with the petitioner in violation of this order, including through a third-party, the respondent can be prosecuted.
The law is problematic in the respect that it costs nothing to file petition for a stalking no contact order. While state lawmakers had the best of intentions in creating this law, they should have anticipated that it would be used much like a petition for an order of connection.
Orders of protection have been abused and misused by people seeking to get the upper hand in a divorce or child custody dispute for years. In fact, while the intent of the legislature in creating an order of protection was to prevent abuse and harassment, it may have actually created a means of abuse and harassment.
The second problem with the stalking no contact order is that this is a free country, and people are free to express their opinions even if others find them to be offensive. An individual has a right to free speech, and this includes the right to engage another in discourse. The First Amendment to the Constitution provides that government shall make no laws infringing upon freedom of speech or assembly.
The Illinois legislature knew this when drafting the bill for the stalking no contact order. And so, they included the following language to protect free speech:
Stalking does not include an exercise of the right to free speech or assembly that is otherwise lawful or picketing occurring at the workplace that is otherwise lawful and arises out of a bona fide labor dispute, including any controversy concerning wages, salaries, hours, working conditions or benefits, including health and welfare, sick leave, insurance, and pension or retirement provisions, the making or maintaining of collective bargaining agreements, and the terms to be included in those agreements.
740 ILCS 21/10.
The problem with the foregoing exemption from the stalking no contact order is that the court may be reluctant to deny petitioners protection under the law for fear that they may later become the victims of crime.
Anyone who is served with a petition and or an emergency order prohibiting stalking should seek the advice of counsel.