COVID-19 Notice: We Remain Here For You. Learn More.

Articles Posted in Domestic Battery/Domestic Violence

Domestic-BatteryLast week I had a trial for a Domestic Battery at the Bridgeview Courthouse in Cook County. My client had no criminal record whatsoever. He had been charged with committing a Domestic Battery on an ex-girlfriend (victim) during a consensual sexual encounter. The facts of the case were very strange. At no time did I think that my client was guilty of the Domestic Battery. As a matter of fact, I tried to alert the prosecutor to the weakness of their case and tried to get them to drop the case rather than force their witness to take the stand and be exposed to a potentially damaging cross examination.  Let me tell you about the facts of the case and how easy it is to get caught up in something that you had no idea could possibly become a criminal matter.

Last year, my client met the victim on Tinder. Tinder is a social media site that people frequently use to “hook up”. My client dated the victim for about 2 months. They both agreed to end the relationship but continued seeing each other, on and off, to have sex for several months after they broke up. The day of the alleged crime, the victim contacted my client to set up another consensual sexual encounter. My client, and the victim, agreed that the victim would come over to my client’s condo after work. When my client came home from work, he left the door to his condo unlocked and went to the bathroom. The victim arrived and walked into the condo. After a short while, the victim and my client sat on the couch to watch TV. They started kissing and then had sex on the couch for a few minutes. The victim terminated the sex and proceeded to cuddle with my client for several minutes. The victim decided to go home, so she got up from the couch and grabbed her clothes. As the victim was gathering her clothes, my client grabbed her from behind so that he could take her into the bedroom because he wanted to continue with the sex. The victim struggled to get loose from my client and told him that she wanted to go home. She laughed at him and made a humorous comment.  She tried to gather her clothes again and my client grabbed her once more from behind and a short struggle ensued. Once again, the victim told my client that she didn’t want to have any more sex with him and wanted to go home. At that point, my client complied and went back to the couch. The victim gathered her clothes and went into the bathroom. She testified that she locked the door to the bathroom and put her clothes on. She also testified that while she was in the bathroom my client was not banging on the door nor was he yelling at her. Yet, she testified that she feared him and was frantic to get dressed so she could go home. She testified that after she exited the bathroom she went back to the living room, where the couch was, and saw my client laying on the couch. She asked him if he wanted his clothes and my client said that he did not want to get dressed. The complaining witness went into the kitchen and retrieved a beverage that she had brought with her to the condo and exited the condo. She testified that she ran down the stairs and quickly entered her car.

The victim testified that when she entered her vehicle she immediately placed a call to her Therapist. She could not get a hold of her Therapist so she left a voicemail. At some point, before she got home, she testified that she spoke to her Therapist on the telephone. She then drove home and spoke to her mother. She also spoke to her neighbor, a former police officer. She testified that she told both of them what happened. After she finished speaking to everyone she decided to go to the police and report that she had been the victim of a Domestic Battery. The complaining witness gave the reporting officer a detailed description of the events that happened at my client’s condominium that night.

Preliminary-HearingMany of the people that I have represented in my 27 years of being a criminal defense lawyer have no criminal record and have little, or no experience, with the criminal justice system. For many people, the thought of facing criminal charges can be a daunting and scary experience. In addition to providing legal services in court, one of my main responsibilities as a criminal defense lawyer is to explain the legal process to my clients and to make sure they fully understand what is happening, and what will be happening in the future.

If you are being charged with a misdemeanor offense, a bond will be set at the police station by the police department. Depending on what you are being charged with, and your criminal record, the Bond could be anywhere from an I-Bond, or a minor cash Bond. An I-Bond is commonly known as a Signature Bond.  With an I-Bond, no money needs to be posted. You just sign the Bond paper promising to appear in court and to not commit any criminal offenses. An exception to this is if you are charged with a Domestic Battery.  You may be taken to court for a bond hearing if you are charged with a Domestic Battery, especially if the State will be seeking an Order of Protection or wants the Court to set special conditions of Bond which forbids you from making contact with the Complaining Witness. But if you are charged with a felony, you will be brought to court as soon as possible for a Bond Hearing and the judge will set a Bond. The first court date after your Bond Hearing will be a Preliminary Hearing date. I want to take this opportunity to explain what a Preliminary Hearing is and what will happen at the Preliminary Hearing.

Basically, a Preliminary Hearing is a short hearing before trial, before a judge, to determine whether probable cause exists to believe that a crime was committed and that you are the one that committed that crime. Probable cause, for Preliminary Hearing purposes, is different than what people commonly consider probable cause to be. For Preliminary Hearing purposes, probable cause simply means that the judge is convinced by a preponderance of the evidence, more probably true than not true, that there’s enough evidence to charge you with a crime and eventually put you on trial for that crime.

Domestic-Battery-1The short answer to this question is maybe. But whether you would be convicted of a Domestic Battery for simply slapping your child is a different question.  This issue is a little complex so let me take a little time to explain what’s involved with this question.

You could be charged with a Domestic Battery in Illinois if you intentionally or knowingly make physical contact with another person that causes bodily harm or is of an insulting or provoking nature.  What makes slapping your child a “Domestic” Battery is that the victim is a family member.  Slapping a child clearly fits the statutory definition of a Domestic Battery. But the rules are applied differently when the physical contact involves the discipline of your child.

In 2002, the Illinois Court of Appeals considered this question and issued a decision which carves out an exception when the contact with the family member involves disciplining a child.  The case is People v. Roberts, 351 Ill.App. 3d 684 (2002). The case involved an incident that began with an argument between a daughter and her mother.  The father arrived home to find the two in the midst of a heated argument.  The argument escalated and the father became involved in the dispute by grabbing the 16-year-old daughter by the hair which resulted in an injury to her eye.  The police charged the father with a Domestic Battery because they claim that what he did, grabbing her by the hair, was without legal justification and fell under the elements of the Illinois Domestic Battery statute.  The case proceeded to trial.  At the jury instruction conference the lawyer for the defendant father requested that the court include a jury instruction instructing the jury that the defendant father could be legally justified in using reasonable force to discipline his child. The court denied the request because the Illinois Domestic Battery statute does not specifically allow for this defense.  The defendant father was ultimately found guilty of Domestic Battery by the jury and appealed the conviction by claiming that the trial court made a mistake by not including this instruction in the jury instructions.  The Court of Appeals overruled the trial court and threw out the Domestic Battery conviction because it found that the trial court should have included the instruction letting the jury know that “a parent is legally justified in using reasonable force when necessary as part of reasonable discipline of a child.” The court agreed that the statute does not specifically allow for this but applied the common law and established this defense to a Domestic Battery charge in Illinois involving the discipline of a child.