What is the difference between an order of protection and a no contact order?

08/11/2007 - Civil Actions - State: IL #7871

Full Question:

What is the difference between an order of protection and a no contact order?

Answer:

A no contact order is a form of protective order. The following is an IL statute:

740 ILCS 22/101)
Sec. 101. Short title. This Act may be cited as the Civil No Contact Order Act.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/102)
Sec. 102. Purpose. Sexual assault is the most heinous crime against another person short of murder. Sexual assault inflicts humiliation, degradation, and terror on victims. According to the FBI, a woman is raped every 6 minutes in the United States. Rape is recognized as the most underreported crime; estimates suggest that only one in seven rapes is reported to authorities. Victims who do not report the crime still desire safety and protection from future interactions with the offender. Some cases in which the rape is reported are not prosecuted. In these situations, the victim should be able to seek a civil remedy requiring only that the offender stay away from the victim.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/103)
Sec. 103. Definitions. As used in this Act:
"Civil no contact order" means an emergency order or plenary order granted under this Act, which includes a remedy authorized by Section 213 of this Act.
"Non-consensual" means a lack of freely given agreement.
"Petitioner" means any named petitioner for the no contact order or any named victim of non-consensual sexual conduct or non-consensual sexual penetration on whose behalf the petition is brought.
"Sexual conduct" means any intentional or knowing touching or fondling by the petitioner or the respondent, either directly or through clothing, of the sex organs, anus, or breast of the petitioner or the respondent, or any part of the body of a child under 13 years of age, or any transfer or transmission of semen by the respondent upon any part of the clothed or unclothed body of the petitioner, for the purpose of sexual gratification or arousal of the petitioner or the respondent.
"Sexual penetration" means any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.
"Stay away" means to refrain from both physical presence and nonphysical contact with the petitioner directly, indirectly, or through third parties who may or may not know of the order. "Nonphysical contact" includes, but is not limited to, telephone calls, mail, e-mail, fax, and written notes.
(Source: P.A. 93-236, eff. 1-1-04; 93-811, eff. 1-1-05.)
(740 ILCS 22/Art. II heading)
ARTICLE II
CIVIL NO CONTACT ORDERS
(740 ILCS 22/201)
Sec. 201. Persons protected by this Act. A petition for a civil no contact order may be filed:
(1) by any person who is a victim of non-consensual sexual conduct or non-consensual sexual penetration, including a single incident of non-consensual sexual conduct or non-consensual sexual penetration; or
(2) by a person on behalf of a minor child or an adult who is a victim of non-consensual sexual conduct or non-consensual sexual penetration but, because of age, disability, health, or inaccessibility, cannot file the petition.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/202)
Sec. 202. Commencement of action; filing fees.
(a) An action for a civil no contact order is commenced:
(1) independently, by filing a petition for a civil no contact order in any civil court, unless specific courts are designated by local rule or order; or
(2) in conjunction with a delinquency petition or a criminal prosecution, by filing a petition for a civil no contact order under the same case number as the delinquency petition or criminal prosecution, to be granted during pre-trial release of a defendant, with any dispositional order issued under Section 5-710 of the Juvenile Court Act of 1987 or as a condition of release, supervision, conditional discharge, probation, periodic imprisonment, parole, or mandatory supervised release, or in conjunction with imprisonment or a bond forfeiture warrant, provided that (i) the violation is alleged in an information, complaint, indictment, or delinquency petition on file and the alleged victim is a person protected by this Act, and (ii) the petition, which is filed by the State's Attorney, names a victim of the alleged crime as a petitioner.
(b) Withdrawal or dismissal of any petition for a civil no contact order prior to adjudication where the petitioner is represented by the State shall operate as a dismissal without prejudice. No action for a civil no contact order shall be dismissed because the respondent is being prosecuted for a crime against the petitioner. For any action commenced under item (2) of subsection (a) of this Section, dismissal of the conjoined case (or a finding of not guilty) shall not require dismissal of the action for a civil no contact order; instead, it may be treated as an independent action and, if necessary and appropriate, transferred to a different court or division.
(c) No fee shall be charged by the clerk of the court for filing petitions or modifying or certifying orders. No fee shall be charged by the sheriff for service by the sheriff of a petition, rule, motion, or order in an action commenced under this Section.
(d) The court shall provide, through the office of the clerk of the court, simplified forms for filing of a petition under this Section by any person not represented by counsel.
(Source: P.A. 93-236, eff. 1-1-04; 93-811, eff. 1-1-05.)
(740 ILCS 22/203)
Sec. 203. Pleading; non-disclosure of address.
(a) A petition for a civil no contact order shall be in writing and verified or accompanied by affidavit and shall allege that the petitioner has been the victim of non-consensual sexual conduct or non-consensual sexual penetration by the respondent.
(b) If the petition states that disclosure of the petitioner's address would risk abuse of the petitioner or any member of the petitioner's family or household, that address may be omitted from all documents filed with the court. If the petitioner has not disclosed an address under this subsection, the petitioner shall designate an alternative address at which the respondent may serve notice of any motions.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/204)
Sec. 204. Application of rules of civil procedure; rape crisis advocates.
(a) Any proceeding to obtain, modify, reopen or appeal a civil no contact order shall be governed by the rules of civil procedure of this State. The standard of proof in such a proceeding is proof by a preponderance of the evidence. The Code of Civil Procedure and Supreme Court and local court rules applicable to civil proceedings shall apply, except as otherwise provided by this Act.
(b) In circuit courts, rape crisis advocates shall be allowed to accompany the victim and confer with the victim, unless otherwise directed by the court. Court administrators shall allow rape crisis advocates to assist victims of non-consensual sexual conduct or non-consensual sexual penetration in the preparation of petitions for civil no contact orders. Rape crisis advocates are not engaged in the unauthorized practice of law when providing assistance of the types specified in this subsection (b). Communications between the petitioner and a rape crisis advocate are protected by the confidentiality of statements made to rape crisis personnel as provided for in Section 8-802.1 of the Code of Civil Procedure.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/204.3)
Sec. 204.3. Appointment of counsel. The court may appoint counsel to represent the petitioner if the respondent is represented by counsel.
(Source: P.A. 93-811, eff. 1-1-05.)
(740 ILCS 22/204.5)
Sec. 204.5. Trial by jury. There shall be no right to trial by jury in any proceeding to obtain, modify, vacate or extend any civil no contact order under this Act. However, nothing in this Section shall deny any existing right to trial by jury in a criminal proceeding.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/205)
Sec. 205. Subject matter jurisdiction. Each of the circuit courts has the power to issue civil no contact orders.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/206)
Sec. 206. Jurisdiction over persons. The courts of this State have jurisdiction to bind (1) State residents and (2) non-residents having minimum contacts with this State, to the extent permitted by the long-arm statute, Section 2-209 of the Code of Civil Procedure.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/207)
Sec. 207. Venue. A petition for a civil no contact order may be filed in any county where (1) the petitioner resides, (2) the respondent resides, or (3) the alleged non-consensual sexual conduct or non-consensual sexual penetration occurred.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/208)
Sec. 208. Process.
(a) Any action for a civil no contact order requires that a separate summons be issued and served. The summons shall be in the form prescribed by Supreme Court Rule 101(d), except that it shall require the respondent to answer or appear within 7 days. Attachments to the summons or notice shall include the petition for civil no contact order and supporting affidavits, if any, and any emergency civil no contact order that has been issued.
(b) The summons shall be served by the sheriff or other law enforcement officer at the earliest time and shall take precedence over other summonses except those of a similar emergency nature. Special process servers may be appointed at any time, and their designation shall not affect the responsibilities and authority of the sheriff or other official process servers.
(c) Service of process on a member of the respondent's household or by publication shall be adequate if: (1) the petitioner has made all reasonable efforts to accomplish actual service of process personally upon the respondent, but the respondent cannot be found to effect such service; and (2) the petitioner files an affidavit or presents sworn testimony as to those efforts.
(d) A plenary civil no contact order may be entered by default for the remedy sought in the petition, if the respondent has been served or given notice in accordance with subsection (a) and if the respondent then fails to appear as directed or fails to appear on any subsequent appearance or hearing date agreed to by the parties or set by the court.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/209)
Sec. 209. Service of notice of hearings. Except as provided in Section 208, notice of hearings on petitions or motions shall be served in accordance with Supreme Court Rules 11 and 12, unless notice is excused by Section 214 of this Act or by the Code of Civil Procedure, Supreme Court Rules, or local rules.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/210)
Sec. 210. Hearings. A petition for a civil no contact order shall be treated as an expedited proceeding, and no court may transfer or otherwise decline to decide all or part of such petition. Nothing in this Section shall prevent the court from reserving issues if jurisdiction or notice requirements are not met.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/211)
Sec. 211. Continuances.
(a) Petitions for emergency remedies shall be granted or denied in accordance with the standards of Section 214, regardless of the respondent's appearance or presence in court.
(b) Any action for a civil no contact order is an expedited proceeding. Continuances shall be granted only for good cause shown and kept to the minimum reasonable duration, taking into account the reasons for the continuance.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/212)
Sec. 212. Hearsay exception.
(a) In proceedings for a no contact order and prosecutions for violating a no-contact order, the prior sexual activity or the reputation of the petitioner is inadmissible except:
(1) as evidence concerning the past sexual conduct of the petitioner with the respondent when this evidence is offered by the respondent upon the issue of whether the petitioner consented to the sexual conduct with respect to which the offense is alleged; or
(2) when constitutionally required to be admitted.
(b) No evidence admissible under this Section may be introduced unless ruled admissible by the trial judge after an offer of proof has been made at a hearing held in camera to determine whether the respondent has evidence to impeach the witness in the event that prior sexual activity with the respondent is denied. The offer of proof shall include reasonably specific information as to the date, time, and place of the past sexual conduct between the petitioner and the respondent. Unless the court finds that reasonably specific information as to date, time, or place, or some combination thereof, has been offered as to prior sexual activity with the respondent, counsel for the respondent shall be ordered to refrain from inquiring into prior sexual activity between the petitioner and the respondent. The court may not admit evidence under this Section unless it determines at the hearing that the evidence is relevant and the probative value of the evidence outweighs the danger of unfair prejudice. The evidence shall be admissible at trial to the extent an order made by the court specifies the evidence that may be admitted and areas with respect to which the petitioner may be examined or cross examined.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/213)
Sec. 213. Civil no contact order; remedies.
(a) If the court finds that the petitioner has been a victim of non-consensual sexual conduct or non-consensual sexual penetration, a civil no contact order shall issue; provided that the petitioner must also satisfy the requirements of Section 214 on emergency orders or Section 215 on plenary orders. The petitioner shall not be denied a civil no contact order because the petitioner or the respondent is a minor. The court, when determining whether or not to issue a civil no contact order, may not require physical injury on the person of the victim. Modification and extension of prior civil no contact orders shall be in accordance with this Act.
(b) A civil no contact order shall order one or more of the following:
(1) order the respondent to stay away from the petitioner; or
(2) other injunctive relief necessary or appropriate.
(c) Denial of a remedy may not be based, in whole or in part, on evidence that:
(1) the respondent has cause for any use of force, unless that cause satisfies the standards for justifiable use of force provided by Article VII of the Criminal Code of 1961;
(2) the respondent was voluntarily intoxicated;
(3) the petitioner acted in self-defense or defense of another, provided that, if the petitioner utilized force, such force was justifiable under Article VII of the Criminal Code of 1961;
(4) the petitioner did not act in self-defense or defense of another;
(5) the petitioner left the residence or household to avoid further non-consensual sexual conduct or non-consensual sexual penetration by the respondent; or
(6) the petitioner did not leave the residence or household to avoid further non-consensual sexual conduct or non-consensual sexual penetration by the respondent.
(d) Monetary damages are not recoverable as a remedy.
(Source: P.A. 93-236, eff. 1-1-04; 93-811, eff. 1-1-05; 94-360, eff. 1-1-06.)
(740 ILCS 22/213.5)
Sec. 213.5. Accountability for actions of others. For the purposes of issuing a civil no contact order, deciding what remedies should be included and enforcing the order, Article 5 of the Criminal Code of 1961 shall govern whether respondent is legally accountable for the conduct of another person.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/214)
Sec. 214. Emergency civil no contact order.
(a) An emergency civil no contact order shall issue if the petitioner satisfies the requirements of this subsection (a). The petitioner shall establish that:
(1) the court has jurisdiction under Section 206;
(2) the requirements of Section 213 are satisfied; and
(3) there is good cause to grant the remedy, regardless of prior service of process or of notice upon the respondent, because the harm which that remedy is intended to prevent would be likely to occur if the respondent were given any prior notice, or greater notice than was actually given, of the petitioner's efforts to obtain judicial relief.
An emergency civil no contact order shall be issued by the court if it appears from the contents of the petition and the examination of the petitioner that the averments are sufficient to indicate nonconsensual sexual conduct or nonconsensual sexual penetration by the respondent and to support the granting of relief under the issuance of the civil no contact order.
An emergency civil no contact order shall be issued if the court finds that subsections (1), (2), and (3) above are met.
(b) If the respondent appears in court for this hearing for an emergency order, he or she may elect to file a general appearance and testify. Any resulting order may be an emergency order, governed by this Section. Notwithstanding the requirements of this Section, if all requirements of Section 215 have been met, the court may issue a plenary order.
(c) Emergency orders; court holidays and evenings.
(1) When the court is unavailable at the close of business, the petitioner may file a petition for a 21-day emergency order before any available circuit judge or associate judge who may grant relief under this Act. If the judge finds that there is an immediate and present danger of abuse against the petitioner and that the petitioner has satisfied the prerequisites set forth in subsection (a), that judge may issue an emergency civil no contact order.
(2) The chief judge of the circuit court may designate for each county in the circuit at least one judge to be reasonably available to issue orally, by telephone, by facsimile, or otherwise, an emergency civil no contact order at all times, whether or not the court is in session.
(3) Any order issued under this Section and any documentation in support of the order shall be certified on the next court day to the appropriate court. The clerk of that court shall immediately assign a case number, file the petition, order, and other documents with the court, and enter the order of record and file it with the sheriff for service, in accordance with Section 222. Filing the petition shall commence proceedings for further relief under Section 202. Failure to comply with the requirements of this paragraph (3) does not affect the validity of the order.
(Source: P.A. 93-236, eff. 1-1-04; 93-811, eff. 1-1-05; 94-360, eff. 1-1-06.)
(740 ILCS 22/215)
Sec. 215. Plenary civil no contact order. A plenary civil no contact order shall issue if the petitioner has served notice of the hearing for that order on the respondent, in accordance with Section 209, and satisfies the requirements of this Section. The petitioner must establish that:
(1) the court has jurisdiction under Section 206;
(2) the requirements of Section 213 are satisfied;
(3) a general appearance was made or filed by or for the respondent or process was served on the respondent in the manner required by Section 208; and
(4) the respondent has answered or is in default.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/216)
Sec. 216. Duration and extension of orders.
(a) Unless re-opened or extended or voided by entry of an order of greater duration, an emergency order shall be effective for not less than 14 nor more than 21 days.
(b) Except as otherwise provided in this Section, a plenary civil no contact order shall be effective for a fixed period of time, not to exceed 2 years. A plenary civil no contact order entered in conjunction with a criminal prosecution shall remain in effect as follows:
(1) if entered during pre-trial release, until disposition, withdrawal, or dismissal of the underlying charge; if however, the case is continued as an independent cause of action, the order's duration may be for a fixed period of time not to exceed 2 years;
(2) if in effect in conjunction with a bond forfeiture warrant, until final disposition or an additional period of time not exceeding 2 years; no civil no contact order, however, shall be terminated by a dismissal that is accompanied by the issuance of a bond forfeiture warrant;
(3) until expiration of any supervision, conditional discharge, probation, periodic imprisonment, parole, or mandatory supervised release and for an additional period of time thereafter not exceeding 2 years; or
(4) until the date set by the court for expiration of any sentence of imprisonment and subsequent parole or mandatory supervised release and for an additional period of time thereafter not exceeding 2 years.
(c) Any emergency or plenary order may be extended one or more times, as required, provided that the requirements of Section 214 or 215, as appropriate, are satisfied. If the motion for extension is uncontested and the petitioner seeks no modification of the order, the order may be extended on the basis of the petitioner's motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested extension. Extensions may be granted only in open court and not under the provisions of subsection (c) of Section 214, which applies only when the court is unavailable at the close of business or on a court holiday.
(d) Any civil no contact order which would expire on a court holiday shall instead expire at the close of the next court business day.
(e) The practice of dismissing or suspending a criminal prosecution in exchange for the issuance of a civil no contact order undermines the purposes of this Act. This Section shall not be construed as encouraging that practice.
(Source: P.A. 93-236, eff. 1-1-04; 94-360, eff. 1-1-06.)
(740 ILCS 22/217)
Sec. 217. Contents of orders.
(a) Any civil no contact order shall describe each remedy granted by the court, in reasonable detail and not by reference to any other document, so that the respondent may clearly understand what he or she must do or refrain from doing.
(b) A civil no contact order shall further state the following:
(1) The name of each petitioner that the court finds was the victim of non-consensual sexual conduct or non-consensual sexual penetration by the respondent.
(2) The date and time the civil no contact order was issued, whether it is an emergency or plenary order, and the duration of the order.
(3) The date, time, and place for any scheduled hearing for extension of that civil no contact order or for another order of greater duration or scope.
(4) For each remedy in an emergency civil no contact order, the reason for entering that remedy without prior notice to the respondent or greater notice than was actually given.
(5) For emergency civil no contact orders, that the respondent may petition the court, in accordance with Section 218.5, to reopen the order if he or she did not receive actual prior notice of the hearing as required under Section 209 of this Act and if the respondent alleges that he or she had a meritorious defense to the order or that the order or its remedy is not authorized by this Act.
(c) A civil no contact order shall include the following notice, printed in conspicuous type: "Any knowing violation of a civil no contact order is a Class A misdemeanor. Any second or subsequent violation is a Class 4 felony."
(Source: P.A. 93-236, eff. 1-1-04; 93-811, eff. 1-1-05.)
(740 ILCS 22/218)
Sec. 218. Notice of orders.
(a) Upon issuance of any civil no contact order, the clerk shall immediately, or on the next court day if an emergency order is issued in accordance with subsection (c) of Section 214:
(1) enter the order on the record and file it in accordance with the circuit court procedures; and
(2) provide a file stamped copy of the order to the respondent, if present, and to the petitioner.
(b) The clerk of the issuing judge shall, or the petitioner may, on the same day that a civil no contact order is issued, file a certified copy of that order with the sheriff or other law enforcement officials charged with maintaining Department of State Police records or charged with serving the order upon the respondent. If the order was issued in accordance with subsection (c) of Section 214, the clerk shall, on the next court day, file a certified copy of the order with the Sheriff or other law enforcement officials charged with maintaining Department of State Police records.
(c) Unless the respondent was present in court when the order was issued, the sheriff, other law enforcement official, or special process server shall promptly serve that order upon the respondent and file proof of such service in the manner provided for service of process in civil proceedings. If process has not yet been served upon the respondent, it shall be served with the order or short form notification.
(d) If the person against whom the civil no contact order is issued is arrested and the written order is issued in accordance with subsection (c) of Section 214 and received by the custodial law enforcement agency before the respondent or arrestee is released from custody, the custodial law enforcement agent shall promptly serve the order upon the respondent or arrestee before the respondent or arrestee is released from custody. In no event shall detention of the respondent or arrestee be extended for hearing on the petition for civil no contact order or receipt of the order issued under Section 214 of this Act.
(e) Any order extending, modifying, or revoking any civil no contact order shall be promptly recorded, issued, and served as provided in this Section.
(f) Upon the request of the petitioner, within 24 hours of the issuance of a civil no contact order, the clerk of the issuing judge shall send written notice of the order along with a certified copy of the order to any school, college, or university at which the petitioner is enrolled.
(Source: P.A. 93-236, eff. 1-1-04; 93-811, eff. 1-1-05.)
(740 ILCS 22/218.5)
Sec. 218.5. Modification; reopening of orders.
(a) Except as otherwise provided in this Section, upon motion by the petitioner, the court may modify an emergency or plenary civil no contact order by altering the remedy, subject to Section 213.
(b) After 30 days following entry of a plenary civil no contact order, a court may modify that order only when a change in the applicable law or facts since that plenary order was entered warrants a modification of its terms.
(c) Upon 2 days' notice to the petitioner, or such shorter notice as the court may prescribe, a respondent subject to an emergency civil no contact order issued under this Act may appear and petition the court to rehear the original or amended petition. Any petition to rehear shall be verified and shall allege the following:
(1) that the respondent did not receive prior notice of the initial hearing in which the emergency order was entered under Sections 209 and 214; and
(2) that the respondent had a meritorious defense to the order or any of its remedies or that the order or any of its remedies was not authorized by this Act.
(Source: P.A. 93-811, eff. 1-1-05.)
(740 ILCS 22/219)
Sec. 219. Violation. A knowing violation of a civil no contact order is a Class A misdemeanor. A second or subsequent violation is a Class 4 felony.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/Art. III heading)
ARTICLE III
LAW ENFORCEMENT RESPONSIBILITIES
(740 ILCS 22/301)
Sec. 301. Arrest without warrant.
(a) Any law enforcement officer may make an arrest without warrant if the officer has probable cause to believe that the person has committed or is committing a violation of a civil no contact order.
(b) The law enforcement officer may verify the existence of a civil no contact order by telephone or radio communication with his or her law enforcement agency or by referring to the copy of the order provided by the petitioner or the respondent.
(Source: P.A. 93-236, eff. 1-1-04.)
(740 ILCS 22/302)
Sec. 302. Data maintenance by law enforcement agencies.
(a) All sheriffs shall furnish to the Department of State Police, on the same day as received, in the form and detail the Department requires, copies of any recorded emergency or plenary civil no contact orders issued by the court and transmitted to the sheriff by the clerk of the court in accordance with subsection (b) of Section 218 of this Act. Each civil no contact order shall be entered in the Law Enforcement Agencies Data System on the same day it is issued by the court. If an emergency civil no contact order was issued in accordance with subsection (c) of Section 214, the order shall be entered in the Law Enforcement Agencies Data System as soon as possible after receipt from the clerk of the court.
(b) The Department of State Police shall maintain a complete and systematic record and index of all valid and recorded civil no contact orders issued under this Act. The data shall be used to inform all dispatchers and law enforcement officers at the scene of an alleged incident of non-consensual sexual conduct or non-consensual sexual penetration or violation of a civil no contact order of any recorded prior incident of non-consensual sexual conduct or non-consensual sexual penetration involving the victim and the effective dates and terms of any recorded civil no contact order.
(Source: P.A. 93-236, eff. 1-1-04.)


Please see:

http://definitions.uslegal.com/p/protective-order/

08/11/2007 - Category: Civil Actions - State: IL #7871

See more Questions in the Civil Actions Category