Question: Can your prior acts of violence, abuse, or harassment be used against you in an order of protection hearing?
Answer: It depends on which side of the litigation you are on.
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Just kidding.
An order of protection is a civil remedy in which a person can ask a judge for protection from an abusive family member or significant other. Generally speaking, in order to obtain an order of protection, a person must show that he or she has been abused or harassed, and that such abuse or harassment is not likely to stop unless the court takes action. An order of protection can help to stop abuse and prohibit contact as well as make someone stay-away, attend counseling, pay child support, or vacate your home, among other things. If a person violates an order of protection, he or she can be arrested and charged with a crime.
Because orders of protection often entail allegations of violence, it is not unusual for each of the parties to want to talk about all of the bad things that the other person did in the past.
As an example, let’s assume that Britney files for an order of protection against Kevin. Britney is therefore the “petitioner,” and Kevin is the “respondent.” In her petition, she details five prior incidents over the last few months in which Kevin has physically abused her, sometimes in the presence of their two children. Moreover, Kevin has a history. Last year, Kevin’s ex-girlfriend filed a police report because Kevin broke into her house and punched her. However, she did not press charges.
Kevin would like to point out that Britney is not that innocent, either. About three years ago, Britney pled guilty to misdemeanor battery for slapping her then-boyfriend, Justin.
Under Illinois law, can either Britney or Kevin introduce evidence of the other’s prior violent acts at the hearing to determine whether an order of protection should be issued? The Illinois Rules of Evidence, specifically Rules 404 and 609, generally provide that a person’s prior acts unrelated to the pending case are inadmissible evidence and should be barred from testimony.
Rule 404 generally provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. In other words, a person cannot generally use evidence that someone did bad things on other occasions to prove that he or she did something bad on this occasion. Rule 609 provides that a prior conviction for a crime is admissible to attack the credibility of a witness, but only if the crime was punishable by death or imprisonment in excess of one year, or involved dishonesty or false statements.
The Domestic Violence Act provides an exception to the Rules of Evidence that apply only to order of protection cases. Specifically, the court shall consider “the nature, frequency, severity, pattern and consequences of the respondent’s past abuse.” The word “respondent” is significant. The exception applies only to the respondent’s prior acts of abuse, not the petitioner’s.
Based upon those Rules, Britney would want to tell the judge that her prior battery conviction for slapping Justin cannot be used against her in the current case involving Kevin. Rule 404 would prohibit Kevin from using it to show that Britney is a violent person. Rule 609 would prohibit Kevin from using it to show that Britney is not a credible person. The exception provided by the Domestic Violence Act would not apply to her, since she is the petitioner in the case.
Kevin would not be so lucky. While the allegation that Kevin broke into his ex-girlfriend’s house and punched her would ordinarily be inadmissible under Rules 404 and 609, it is exactly the type of evidence that the Domestic Violence Act renders admissible. In short, Britney could bring up Kevin’s history to show that he is a violent person and that she is in need of an order of protection for her safety.
For more information on orders of protection, contact us.