Articles Posted in Domestic Violence

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27554520141_9b38f83133According to the Chicago Metropolitan Battered Women’s Network, approximately 77% of women who are currently incarcerated are victims of abuse. This figure is staggering and is part of the reason why this nonprofit helped to pass Illinois’ new domestic violence law, SB0209. SB0209 is important because it allows being a victim of domestic violence to be a mitigating factor at sentencing. A mitigating factor is any information presented to the court, generally about the defendant or the circumstances surrounding the crime, that has the potential to reduce the defendant’s sentence or the crime charged. Therefore, SB0209 was passed in order to enable courts in our state to reduce a defendant’s sentence if he or she was a victim of domestic violence.

Bill SB0209: History of Domestic Violence as a Mitigating Factor

According to  SB0209, if a defendant is or was a victim of domestic violence, and the domestic violence tended to excuse or justify his or her criminal conduct, then evidence of the abuse can be a mitigating factor at sentencing. In order to claim being a victim of domestic violence as a mitigating factor, the defendant must prove the following by a preponderance of the evidence:

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Illinois has some of the strictest domestic violence laws in the country – enacted to recognize the serious negative impact of domestic violence on thousands of Illinois families and children. Unfortunately, with increased awareness and enforcement surrounding  these important domestic violence issues comes a greater chance of wrongful convictions.27554520141_9b38f83133

Our firm takes domestic violence allegations very seriously, while at the same time understanding that false accusations do occur, especially in emotionally charged situations like child custody disputes. If you find yourself facing domestic violence charges in Chicago, our criminal defense attorneys with experience fighting false claims of family abuse can help you seek to clear your name.

What Constitutes Domestic Violence in Illinois?

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file0001612641889Harassment and stalking allegations are emotionally laden, complex charges to be facing at what is probably already an extremely difficult time in your life. In addition to whatever stressful situation led to the alleged criminal behavior in the first instance, you are now facing serious criminal charges. The Illinois legislature has passed extremely broad laws to curb harassment and stalking – sometimes overbroad. If you find yourself tangled up in this confusing and intricate web of laws, you need to talk to an experienced Chicago stalking defense attorney about how to defend against these charges.

Harassment in Illinois

Harassment in Illinois is defined as making an obscene or indecent comment or request to another with the intention to offend, threaten, or annoy them. It need not be face to face. You can be charged with harassment for telephone, email, text, and other communications. You can even be charged with harassment without speaking to the other person. For example, if someone repeatedly calls and hangs up on another without ever saying a word, that could rise to the level of harassment.

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On July 8, David J. Marks was sentenced to serve three years in the Illinois Department of Corrections followed by a four-year term of mandatory supervised release for his conviction of aggravated domestic battery.  He pled guilty to the charge last month.13904826266_ef045fab5c

According to a news report, Marks was arrested in the parking lot of a Best Buy store in Carbondale after a battery incident was reported. According to the officers, they arrived at the Best Buy parking after two private citizens heard the victim cry for help and intervened, which allowed the victim to escape. The victim told police that Marks, her ex-boyfriend, came to her home and abducted her against her will. When they arrived at the Best Buy parking lot, Marks allegedly used a seatbelt to try to strangle her and prevented her from leaving the vehicle. After the private citizens intervened, Marks drove off but was later apprehended.

Domestic Battery Laws in Illinois

Under Illinois statute, a person is guilty of domestic battery if he or she causes bodily harm or makes physical contact of an insulting or provoking nature with any family or household member. The statute does not distinguish between minor or serious injuries – therefore, even minor scratches, bruises, or cuts will suffice for a charge of domestic battery.  Even when no injury results from physical contact, a charge may still be brought if the contact was insulting or provoking.

A “family or household member” includes the following individuals:

  • Spouses or ex-spouses;
  • Parents, children, stepchildren and other persons related by blood or by marriage;
  • Individuals who share or formerly shared a common home;
  • Individuals who have or allegedly have a child in common, or individuals who share or allegedly share a blood relationship through a child;
  • Individuals who have or have been dating or are engaged; and
  • Individuals with disabilities and their personal assistants and caregivers.

A first offense of domestic battery is usually charged as a Class A misdemeanor. However, if the defendant has a prior domestic battery conviction, has violated an order of protection, or if other aggravating factors are present, then it is a Class 4 felony. Aggravating factors include causing great bodily harm, permanent disability or disfigurement, if the victim was pregnant when the alleged battery occurred, or battery involving a deadly weapon or strangulation. In the case above, Marks pled guilty to attempting to strangle the victim, which is why he was convicted of aggravated domestic battery.

Penalties for Domestic Battery

The maximum penalty for a Class A misdemeanor is up to one year in jail and a fine of $2,500. Normally, first offenders are eligible for court supervision in most misdemeanor cases.  However, with regard to domestic battery, defendants are not eligible for court supervision and the mandatory minimum sentence involves a conviction. A conviction for domestic battery can never be expunged or sealed from a defendant’s record. Therefore, domestic battery is considered to be a more serious offense than other misdemeanors. If the charge is for aggravated domestic battery, is a Class 4 felony and carries a possible sentence of one to three years imprisonment.

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A Cook County woman was charged with domestic battery for allegedly slamming her boyfriend’s head into a public restroom following his refusal to have sex with her. She was also charged with illegal possession of prescription drugs after police saw prescription pills in her purse that had the name of another woman on the label.

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Cook County Domestic Battery Charge

A charge of domestic battery is no different than a regular battery charge, other than the fact that domestic battery charges can only be brought against a defendant if the battery was committed against a family or household member or significant other.

Battery and domestic battery are Class A misdemeanors, so attempting to argue that the victim does not meet the criteria of family or household member would not be a good defense strategy, because the potential punishment if convicted is the same for either crime. The argument that the victim was not a family or household member would be relevant if this was a second charge of domestic battery; in those instances, conviction is a Class 4 felony. So trying to argue the charge down to “regular” battery based on a failure to meet the relationship criteria would be justified.

In this particular case the only viable defenses, if the facts supported them, would be self-defense or accidental. Based on the description of the incident – the alleged victim was using the urinal at the time the defendant approached him for sex – it seems unlikely the facts would support a self-defense claim.

That leaves the defense that it was unintentional. The crime of battery is committed only if action causing harm was committed “knowingly” – that is, intentionally. The woman was in a state of undress when her boyfriend rebuffed her advances; it is possible that she tripped putting her clothes back on. Or, if she was taking medication, it could have impaired her balance, causing her to fall against him. If either of these are true, it would have been her falling against him that caused him to hit his head against the wall, rather than an intentional action on her part.

Cook County Possession of Prescription Drugs Charges

Illegal possession of a prescription drugs is a felony, and conviction has serious consequences. The first line of defense is to prove that you had a prescription for the drug. The second is to verify that the drug found in your possession is in fact listed as a controlled substance under the Illinois Controlled Substances Act.

If you do not have a prescription, you must prove that the drugs were not truly in your possession. In this case, the police found the drugs when the woman pulled them out of her purse and placed them on the table. The pill container had another woman’s name on it. That alone is not enough to prove illegal possession. Perhaps the defendant had just picked up the prescription for a friend or family member and was planning to deliver it the next day.

Or perhaps the name on the bottle is the woman’s legal name, and she uses another for everyday life. Or maybe the opposite is true – not wanting her prescription history to get out in the event the pharmacy computers are hacked, perhaps her doctor writes the prescription under a different name. It may also be possible that the drugs inside pill bottle were prescribed to the defendant, but she was using an old pill bottle that belonged to somebody else to hold them. The mere fact that the defendant had possession of a pill bottle that did not have her name on it is not enough, on its own, to prove that she was in illegal possession of a controlled substance.

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The recent indictment of Minnesota Viking’s running back Adrian Peterson on charges of child abuse, which stemmed from his admission that he disciplined his young son with a switch, is raising questions over just what constitutes corporal punishment, and when it crosses the line from discipline to child abuse.

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Under Illinois law, it is considered child abuse if a parent “inflicts excessive corporal punishment” upon his or her child. The use of the qualifier “excessive” makes clear that a Chicago parent is allowed to use corporal punishment when disciplining his or her child. But the law fails to define what pushes the corporal punishment, which may include spanking, hitting, pinching, slapping, or any other type of action with the intent of inflicting pain, from permissible to excessive.

The Illinois courts have dealt with the issue of corporal punishment at various times, consistently ruling that “parental rights of discipline are limited by a standard of reasonableness.” But they cite no examples of what constitutes unreasonableness.

How, then, is a parent to know whether discipline of a child will result in criminal charges? Unfortunately, they cannot, since there is no clear cut answer. What is reasonable today may be unreasonable tomorrow, depending on society’s changing views of corporal punishment. It can even vary depending on the type of punishment inflicted, the region, and the terms that are used to describe the punishment.

Cases such as these highlight the importance of obtaining experienced legal counsel. The sole basis of whether a parent’s physical discipline of his or her child qualifies as excessive under the law comes down to a reasonableness standard.

Defending against child abuse charges that stem from corporal punishment requires the ability to not only thoroughly examine all the circumstances to make a case for reasonableness, but also the ability to make a jury understand why the parent believed his or her method of discipline was reasonable. It also requires an examination of medical evidence regarding any alleged injuries, as well as photographs taken following the incident.

Whether the punishment is reasonable will rest in part on the severity of the discipline and whether it caused any injury. That requires a careful examination of any photographic evidence and testimony from qualified medical experts on the lasting impact, if any, from the discipline.

Photographs taken immediately after the incident may show red marks or other visible evidence of the physical discipline. But any type of physical contact can leave an imprint. Instead, the real question is whether that imprint remained, or whether it faded away shortly after the incident occurred. Physical marks that disappear shortly after the discipline would disprove excessive use of corporal punishment. If there are no follow-up photographs, medical testimony from David L. Freidberg’s team of medical experts could help jurors understand that an “injury” that looks bad in a poorly taken photograph actually faded away in an hour or two.

Eyewitness testimony is also important in disproving the excessive nature of the discipline. For example, if the child was running around playing like normal shortly after the punishment, as opposed to limping, that would go toward disproving that the punishment was excessive.  Continue reading

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A Cook County man was recently arrested and charged with two counts of aggravated domestic battery for allegedly hitting a woman in the head with a bookcase and attempting to strangle her. If you are thinking that this is your average, everyday case of domestic violence, you are wrong. That’s because the alleged victim in this case was the defendant’s 53-year-old mother.

Chicago Domestic Violence Law

The Illinois domestic violence laws are incredibly broad. Not only do they include a wide variety of criminal offenses – assault, battery and harassment to name a few – but a wide variety of victims as well. No doubt when you imagine the typical domestic dispute, you think of a male/female couple, with the male as the perpetrator and the female as the victim. (Although, as I have discussed before, men can be victims of domestic violence as well). So you are probably wondering how it is possible for a grown man to be charged with committing domestic violence against his mother.

Under Illinois law, a crime can be classified as a domestic dispute if it was carried out against any family or household member. A family or household member may include:

  • family members related by blood or adoption (including step-children);
  • spouses or former spouses;
  • a current of former boyfriend/girlfriend, including same-sex partners;
  • disabled individuals and their personal assistants;
  • roommates or former roommates; and
  • individuals with a child in common.

Illinois Aggravated Domestic Battery

In this case, the defendant was charged with aggravated domestic battery. The crime of domestic battery is the same as battery committed against a non-family or household member; the only difference is who the act is committed against.

In Illinois, a person commits battery if he or she knowingly causes bodily harm or makes physical contact of an insulting or provoking nature to another person. A battery is elevated to aggravated based on the type of injury or the status of the victim (for example, a battery becomes aggravated if the victim was disabled), but it is unclear from this case where the aggravating factor came into play.

The punishment for domestic and non-domestic battery is the same. Both are Class A misdemeanors punishable by less than one year in prison and up to a $2,500 fine. A conviction of domestic battery, however, may carry federal criminal penalties if the crime involved the possession, transportation, shipment or receival of firearms or ammunition. Additionally, while a defendant can receive supervision for a battery charge, which is not a conviction and can be expunged from his or her record, the same is not the case with regard to domestic battery. A conviction for domestic battery is just that, a conviction, which can never be expunged.

Defense against Illinois Domestic Battery

Would the defense of a domestic battery charge be any different than a regular battery charge?

Not at all. As in any other charge of battery, an attorney would look at all the facts and circumstances to mount the best possible criminal defense. In this case, the alleged battery occurred while the mother was attempting to stop her son from allegedly abusing the mother’s dog. The defense would include looking at whether:

  • the defendant was protecting himself from being attacked by the dog;
  • the mother, in her attempt to stop the alleged attack on the dog, committed a battery against her son first, causing the son to act in self-defense;
  • the injuries sustained by the mother could have been accidentally inflicted by the son as he protected himself from the dog; or
  • the mother could have sustained the injuries herself trying to get to her dog, and blamed them on her son when police arrived because of a prior argument.

Regardless of the type of battery, an experienced legal professional will examine all of the evidence to seek a dismissal or reduction of charges.  Continue reading

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Illinois law enforcement began issuing permits earlier this year under the state’s new concealed carry law, and already it appears that law enforcement is singling out Cook County residents with any type of domestic violence history.

Police Objection to Illinois Concealed Carry Permit

The Illinois concealed carry law grants law enforcement the right to object to the issuance of a concealed carry permit if they have a “reasonable suspicion” that the applicant is a danger to himself or others, or is a threat to public safety.

When the application review process began on January 5 of this year, the Cook County Sheriff’s Department opposed 217, or 1%, of those submitted because the applicants had a history of domestic violence or were the subject of protection order; that number has since risen to 581, or 2.5% of all applications received to date. Gun crimes were the next highest reason for objections, with 378.  An objection does not guarantee that the concealed carry permit will be denied; instead, it grants the police up to 90 days to submit information to the Concealed Carry Licensing Review board supporting their objection.

The report notes that there is crossover amongst the objection categories, as some applicants had arrests for more than one crime, prompting the objection. Thus it is unclear whether any of the 581 objected applicants had convictions or charges for other crimes, such as drug crimes or assaults, which would have bolstered law enforcement’s objection. But with domestic violence being the highest objectionable category, it appears that individuals with these histories are being targeted. This is especially troubling when the basis of the objection was an order of protection.

Illinois Orders of Protection Not Evidence of Crime

Orders of protection can be obtained in criminal court in conjunction with a criminal charge of domestic violence. But they are most often obtained in civil court. A petition for an order of protection can be filed even if there is no arrest for domestic violence. While domestic violence is a serious issue, the protection order process is unfortunately abused, sometimes for personal gain, and other times for retaliation.

If your partner or ex-partner tries to get an order of protection against you, you may decide against fighting it, instead choosing to distance yourself from the situation. But given the potential rights that can be taken away if the order is issued, this is the wrong mindset.

If an order of protection is issued against you, it could negatively impact your ability to get custody of your children. You may have to list it on future job and housing applications. You will also need to include it on the application for a concealed carry permit, and in just the short time the licenses have been available, law enforcement has been trying to keep guns out of the hands of anybody who has any type of domestic violence in their past, even a non-criminal order of protection. Continue reading

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Chicago police received 48,141 reported incidents of domestic violence in 2013, including reports of assault, battery and unauthorized use of a motor vehicle. During that same time period they received 171,077 domestic violence-related calls. Domestic violence is a serious issue that affects not only the parties involved, but collateral victims as well, most notably the children. Most of the focus on domestic violence revolves around men as the batterer and women as the victim. But a recent Chicago murder highlights the fact that men can also be victims of domestic violence.

Chicago Domestic Dispute Ends With Woman Fatally Stabbing Boyfriend

killer-hand-1-1153640-mMiata Phelan, a 24-year-old pregnant woman who lives in Chicago, stabbed and killed her boyfriend, 28-year-old Larry Martin, on Cinco de Mayo. Why? Because he allegedly purchased gifts for his eight-year-old son and his cousin on a trip to the mall and nothing for her, even though her birthday was the next day.

Prior to the stabbing, Phelan reportedly kicked and scratched Martin in the car as punishment for his selfishness, and then took off with the vehicle when Martin stopped to run another errand, forcing him and his eight-year-old son to walk home, where he found the front door of the house locked. When he was finally able to get inside, Phelan stabbed him in the side with a knife – in full view of his son – screaming, “I hope you die.”

 

Martin died a few hours later at the hospital; Phelan was charged with first-degree murder.

Multiple Domestic Violence Charges in Single Incident

Although Phelan is charged with murder, this incident contains many elements of domestic violence and highlights the escalation of abuse, albeit in a compacted time frame. Each action on its own could be a crime under Illinois’ domestic violence laws:

 

  • Verbal abuse: screaming and calling Martin selfish because he seemingly failed to buy her a birthday present gift
  • Battery: kicking and scratching
  • Theft: driving away in Martin’s car
  • Aggravated battery:the stabbing
  • Murder:end result of the stabbing

Like many domestic violence cases, the violence escalated from verbal to physical abuse, with this case ending on the most extreme end of the physical abuse scale. In this case that escalation seemingly occurred in the same episode, although it is unclear if Phelan had a history of escalating domestic violence against Martin, and this was the culmination of months of abusive behavior.

Had Martin survived – and assuming he left her – Phelan’s actions would have subjected her to civil penalties as well as criminal. Martin would have most likely been able get an order of protection against Phelan, which could have resulted in her being forced to move out of the couple’s home, and could have caused her to lose her job. Her ability to gain custody of the couple’s unborn child would also have been adversely affected, as violence against one parent is a factor the court considers when making an award of child custody.

Absent the murder, this case is typical of many domestic violence incidents and demonstrate how much a single incident of domestic violence can impact numerous aspects of a person’s life. A skilled criminal defense attorney understands these long-lasting ramifications and is experienced in defending against domestic violence charges and civil orders of protection. Continue reading

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 Illinois’ concealed carry law, which passed the state legislature in July 2013, officially went into effect when the state police began sending out its first round of permits in late February. As of March 1, 2014, 5,000 license applications had been approved and were processed for mailing, and 46,000 applications had been received so far overall.

Illinois’ domestic violence laws prohibit an individual who is the subject of an order of protection (a restraining order) from possessing or acquiring a gun. The new concealed carry law prohibits those convicted of domestic violence – whether domestic battery, aggravated domestic battery or similar offense in another jurisdiction – from obtaining a concealed gun permit. But domestic violence advocates are worried that it doesn’t do enough to keep firearms out of the hands of perpetrators.

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Section 15 of the concealed carry law allows police to object to the granting of a permit if the applicant has been arrested for any reason five or more times in the seven-year period preceding the application. An objection postpones the decision of whether to grant a permit for 90 days. During that time the police forward all prior arrest information to the Board, which will then decide whether or not to issue the permit.

Because those charged with domestic violence are often repeat offenders with a pattern of escalating abuse, advocates are concerned that the “five arrests in seven years” prohibition is insufficient to protect victims.  Many domestic violence victims file for restraining orders but then drop them out of fear, or don’t take the next step of pressing criminal charges. In other cases, perpetrators are never prosecuted, even when an arrest is made because the victim ultimately refuses to cooperate out of fear. This “loophole,” then, would allow otherwise violent perpetrators to get their hands on a concealed carry permit.

Objections to the Applications

Since the law went into effect, sheriff’s departments in Cook and Lake Counties had opposed 237 out of 14,369 concealed carry permit applications because of domestic violence and orders of protection. The Chicago Police Department objected to 86 out of 3,186 applications. They did not say if all of the objections based on domestic violence and orders of protection exceeded the five times in seven years threshold. An objection does not guarantee that the concealed carry permit will be denied.

But proponents of concealed carry believe the law is fair, arguing that an arrest isn’t the same as a conviction. Prosecutors may choose not to press charges, and jurors may acquit a defendant, because they believe the claim of domestic violence was false. Punishing an individual because he was falsely accused would be unfair and a violation of his or her rights.

Individuals whose applications are denied have the right to appeal to the Board and, if the permit is still denied, then to the courts. Because some believe the law offers a loophole that will put firearms in the hands of those they believe are dangerous, the area is rife with the possibility of denials based on less than that threshold, in the hopes that the applicant will not file an appeal if the Board denies the application.

The appeal process will no doubt involve rehashing and dissecting those prior arrests, with the police arguing that your arrest history marks you as a violent repeat offender, and that allowing you a concealed carry permit would be dangerous to the public. Continue reading

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