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What is the law in Illinois on domestic violence?

Lewis Gainor

Criminal defense attorney in Chicago concentrating in felony and DUI defense.

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If you had to guess, what would you say is the most common criminal offense in the state of Illinois?

Most people would say theft, or maybe burglary, but they are mistaken.

The most common criminal offense in Illinois is domestic battery. And it's not even close.

Domestic battery is charged so frequently that nearly every courthouse in the state has a courtroom set aside exclusively for domestic violence cases.

In Chicago, the Circuit Court of Cook County has a building dedicated to domestic violence cases, 555 W. Harrison. Most collar counties, Lake, Will, and DuPage, for example, also have a courtroom which hears domestic violence cases exclusively.

The reason for the special assignment of courtrooms has as much to do with high caseloads as it does with security. Emotions run high in domestic violence courtrooms, and courtroom personnel have to take special measures to ensure safety.

Illinois Domestic Battery Law

Domestic battery is a Class A misdemeanor charge under Illinois law. The possible sentence for any Class A misdemeanor in Illinois is up to one year in jail and a fine of $2,500.

The statute provides the following:

Sec. 12-3.2. Domestic Battery.
(a) A person commits domestic battery if he intentionally or knowingly without legal justification by any means:
(1) Causes bodily harm to any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended;
(2) Makes physical contact of an insulting or provoking nature with any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended.

For background, Illinois law makes a distinction between assault and battery. A battery takes place where a person makes physical contact with another in any way that is unwanted. In almost every case, punching someone is a battery. However, a battery can occur with any physical contact, such as throwing a bucket of foul water on someone.

Meanwhile, an assault takes place where a person causes another to believe he or she is about to be the victim of a battery (for example, holding one's fist out and threatening to punch somebody).

Domestic Relationship

Basically, the prosecution needs to prove two things in a domestic violence case: first, a battery, and second, a domestic relationship.

Anyone who is a family or household member falls into the category of a domestic relationship.

The law says:

"Family or household members" include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and caregivers as defined in paragraph (3) of subsection (b) of Section 12-21 of the Criminal Code of 1961. See 750 ILCS 60/103(6).

As you can see, almost anyone with a connection is considered a family or household member.

Brother of an ex-girlfriend you dated 20 years ago? Still a domestic relationship.

Fraternity brother in the same frat house? Domestic relationship because you share a dwelling.

The fact that the complaining witness is a family or household member triggers special penalties for domestic battery.

Mandatory Minimum Sentence

Domestic battery is an offense with a mandatory minimum sentence. A mandatory minimum means the court cannot deviate from the sentence prescribed by the legislature.

For domestic battery, the minimum sentence is conviction. A conviction cannot be expunged or sealed. Ever.

In almost all other misdemeanor cases, a first offender is eligible for a special sentence of supervision. Court supervision is a period of probation in which the court "supervises" the defendant and, provided he complies with the rules of probation, the charge is dismissed. In this way, supervision is like a deferred prosecution or continuance.

Because supervision does not end in a conviction, the record can be expunged.

Domestic battery, which results in a conviction, can never be expunged or sealed. It is a permanent criminal record.

Defenses to a Charge of Domestic Battery

Self-defense is available to a person who is accused of domestic battery. The law in the state of Illinois makes no distinction between a man or woman using self-defense. That is, a man can use self-defense, even if violent, against a woman, and vice-versa.

The critical issue in the case is that the force used to defend one's self must be reasonable.

There are no hard and fast rules for what is and what is not reasonable. The rule is, it depends. It is for the jury to decide if a person reacted properly to the situation.

For example, slapping a person who is slapping you is arguably proper self-defense. Punching and kicking may not be reasonable if the person did not already do the same.

One interesting fact is that the law in Illinois does not say you have to wait for another to strike first. There is no duty of retreat in Illinois and you can strike first if you are not the aggressor.

Parent-Child Discipline

Parents can be charged with domestic battery for corporal punishment. Nonetheless, the law recognizes another defense to domestic battery in the context of a parent-child relationship.

If the parent uses corporal punishment as a reasonable discipline, then they can be acquitted of domestic battery. Again, the law provides no clear cut lines defining what is reasonable.

No law in Illinois says a parent cannot use a belt on a child.

A parent can slap his or her child, and it is not against the law provided it is reasonable.

Enhanced Penalties

Domestic battery differs from battery in another important respect. A second offense of domestic battery is a Class 4 felony offense with a penalty of 1-3 years in prison (Illinois Department of Corrections). If the defendant has a prior conviction for violating an order of protection with respect to the victim, then a first domestic battery offense is also a Class 4 felony.

If the victim suffers great bodily harm, then the offense is a Class 2 felony punishable by 3-7 years imprisonment. Even where the defendant gets probation, the mandatory minimum sentence for great bodily harm in domestic battery is 60 days jail.

Choking or Strangulation

In 2010, state lawmakers made a new offense of aggravated domestic battery involving choking or strangulation. Even if it is a first offense, a domestic battery involving choking is a Class 2 felony, which has a sentencing range of 3-7 years incarceration.

The significance of this development is that probably 35-50 percent of cases involving domestic battery have some instance where the offender placed his hands around the woman's neck. It remains to be seen how these cases will play out.

Witness Who Does Not Appear

Often a person charged with domestic battery will talk to the alleged victim during the case in an attempt to persuade her (or him) not to show up in court. It is believed that this assures the charge will be dismissed.

Other times, the defendant will ask the complaining witness to ask the State's Attorney to drop the charges.

If only it were that easy.

The reality is that once the police have been called, it is out of the victim's hands. The State's Attorney's has the authority whether to proceed with prosecution or drop the charges.

The State's Attorney most likely will proceed with prosecution against the desires of the victim.

The State typically prosecutes every domestic battery case to the fullest extent. The rationale is that they know the victim usually goes back to the offender and continues in the abusive relationship, and they want to be on record as fighting the vicious cycle of domestic violence.

Firearms Possession

A conviction for the offense of domestic battery will cause the Illinois State Police to revoke that person's Firearm Owner's Identification Card (FOID). Further, federal law also forbids a person with a conviction for domestic battery from legally owning or possession any firearms.

A charge for domestic battery can threaten your ability to work in security, law enforcement, and the military.

Preventing a 911 Call

Frequently a domestic case will have a charge for interfering with the reporting of domestic violence. Where the offender takes away the woman's cell phone, this may constitute a separate crime.

Interfering with the reporting of domestic violence is a Class A misdemeanor (up to one year in jail).

Lewis Gainor, the author of this blog, is a lawyer whose law practice is dedicated exclusively to criminal defense. He has written extensively about Illinois domestic battery. He is a member of the prestigious federal trial bar, and has been able to have domestic violence charges dismissed for over a hundred clients. If you have been arrested for domestic battery in the Chicago area, call him today for a free, confidential review of your legal situation: (224) 688-9118.



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