Defending Stalking- No Contact Order cases

No Contact Orders in Illinois explained.

While stalking, as the word is commonly understood, is a serious crime and no-contact orders are necessary and appropriate, the Illinois legislature has seen fit to expand the definition far beyond the common definition. It is no exaggeration that a petitioner for a stalking-no contact order may get relief from conduct which is merely offensive. 

While citizens have many rights, the right not to be offended by the words of others is not one of them. 

This is a serious infringement of a defendant/respondent’s rights. The “emergency” order is entered ex parte (meaning the judge hears only one side of the story) and the Illinois State Police seemingly automatically requires the defendant to turn in his/her Firearms Owner’s Identification Card, meaning any firearm in possession of the defendant/respondent is a crime by itself. 

What to do? 

In 2017 the Illinois Supreme Court appeared to give some relief from part of the criminal side of the Stalking regimen, holding that provisions of stalking and cyber-stalking statutes, which criminalized two or more non-consensual communications to or about someone that defendant knew or should have known would cause reasonable person to suffer emotional distress, facially violated the constitutional right of free speech, since those provisions restricted speech based on its content and did not require true threat or integral relation of speech with criminal conduct. People v. Relerford, 2017 IL 121094, 104 N.E.3d 341. 

In 2019 an unpublished opinion from the 1st District Court of Appeals (which means it can’t be cited as authority), held that the subsection of the criminal side of the stalking statute governing conduct that would cause reasonable person to suffer emotional distress [740 ICLS 21/10] was overboard on its face and unconstitutional under First Amendment right of free speech because (regardless of the facts in the specific case) it did not fall within historic and traditional categories of unprotected speech and it reached a vast number of circumstances limiting speech far beyond generally understood meaning of stalking, People v. Morocho, 2019 IL App (1st) 153232 

Recently, the 3rd District Court of Appeals rejected a challenge to the civil side of the statute which provided, similar to the criminal statute, that stalking occurs when the speech or conduct of another causes someone emotional distress. Importantly, though, the Court held that the Stalking Statute (1) does not regulate speech, but if it does (2) the only speech which is does regulate are threats of violence or intimidation. Nicholson v. Wilson, 2013 IL App (3d) 110517, ¶ 20, 993 N.E.2d 594. 

Courts should be, and some are, attuned to the potential abuses of the current language in the criminal and civil parts of the Stalking Acts. When the facts warrant, attorneys should be prepared to elicit facts that “true threats” did not occur and that the defendant/respondent was merely exercising his or her right of free speech or assembly. Attorneys should be adept at using evidence rules to keep out hearsay and other potential evidence without foundation or relevance of the person seeking the no-contact order. It is important to defend these cases at the civil stage because, if an order is entered there, it can easily expand into a criminal case if your client accidentally comes within the stay away limits of the order.


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