Defending the Indefensible to Further a Later Case: Sanctioning Respondents in Illinois Domestic Violence Cases
Taylor, David H.
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When an act of domestic violence occurs in Illinois, as in most other jurisdictions, both criminal charges and a civil Domestic Violence Order of Protection may follow. The order of protection may be commenced in conjunction with a criminal charge or may be commenced as an independent action. Because of the exigencies of the domestic violence situation, the legislature has enacted a statutory scheme that expedites the civil proceeding, so that the civil order of protection proceeding takes place in a period of twenty-one days from initial filing to final hearing. In other contexts, an act of intentional injury could give rise to both a civil personal injury matter and a criminal prosecution. But in these situations, it would be anticipated that the criminal case would be resolved prior to the civil matter. Therefore, the domestic violence situation is somewhat unique in that the civil case proceeds prior to the resolution of the criminal matter. This creates an opportunity for the respondent to use the order of protection proceeding for two improper purposes related to the defense of a subsequent criminal charge. First, during the civil proceeding, the respondent may seek to use cross examination of the abuse victim for purposes of intimidation so that she may wish not to be a witness in the later criminal prosecution. Second, the cross examination might be conducted to gain the equivalent of a discovery deposition that would not be available in the criminal matter. In this article, I will discuss that when either or both occurs, the respondent should be subject to sanctions pursuant to both Supreme Court Rule 1378 and the specific sanction provision of the Illinois Domestic Violence Act. The most difficult question involved is how to draw the line between a legitimate defense of the civil matter and a defense for either of the improper purposes. In this article, I will seek to draw that line. I will first discuss that separating legitimate defenses from improper defenses would be aided by requiring respondents to file answers to petitions for orders of protection. I will argue that such is required by applicable statute, though not often required in practice. I will then address the Fifth Amendment problem presented when a party facing concurrent civil and criminal actions is required to answer the civil case before resolution of the criminal matter. I will propose an amendment to the Illinois Domestic Violence Act that prevents the pleadings or testimony from an order of protection action from use in a subsequent criminal action. I will argue that so doing aids both the petitioner and respondent, and comports with the legislature's expressed intention to provide prompt relief and protection to victims of domestic violence.