Common Defenses to an Illinois Order of Protection – Guide

When someone files a petition for an order of protection against you, it is easy to feel powerless. However, Illinois order of protection laws do allow you to raise a defense against these orders. While each case requires an individual defense strategy, learning more about the common defenses to an Illinois order of protection can help you understand what legal options are available.

What Is an Order of Protection in Illinois?

An order of protection, or restraining order, is a court order issued to protect victims of domestic violence. This order requires the abuser to avoid contacting the victim, often by forbidding them from sharing a residence, limiting parenting time, or forcing the abuser to avoid certain locations.

Orders of protection are common throughout Illinois, making up 3.82% of all circuit court cases filed. These orders are meant to protect victims from further threats to their safety, as intimate partner-related homicides led to 358 deaths in Illinois in 2023. Among jail inmates convicted of domestic violence, 18% are under an active restraining order.

In Illinois, orders of protection are handled through the Circuit Court. They are typically filed in the Circuit Court Clerk’s office in the county where the abuse occurred or where the victim or abuser lives.

Common Defenses to an Illinois Order of Protection

Every order of protection case is unique, with evidence, witness testimony, investigations, and case circumstances that can significantly affect how you should defend against an order of protection. Because of this, you should hire an order of protection lawyer who can determine the most effective strategy for your specific case.

Some of the most common strategies that are used by an Illinois order of protection attorney in an order of protection case include:

Claiming That the Alleged Conduct Never Occurred

Claiming that the alleged conduct never occurred can be complex, as it involves proving that the allegations were falsely made. Sometimes, false accusations arise out of misunderstandings or even intentionally as a form of retaliation.

This defense often involves the alleged victim making statements without concrete evidence to back them up. For example, stating that they were physically abused, but are unable to provide specific details about what occurred, do not have any medical records from the injuries, and do not have any photographs of the injuries.

Arguing That There Is Insufficient Evidence

For an order of protection to be established, there must be sufficient evidence to prove that you are more likely than not guilty of the allegations against you. If the other party is relying on testimony alone or only has weak evidence, you may be able to argue that there is not enough evidence to satisfy the burden of proof.

Claiming Self-Defense

In cases where you acted in defense of yourself or another, you may be able to claim self-defense. Self-defense involves the necessary use of force to protect yourself from an immediate threat. You may not claim self-defense if you initiated the fight or the use of physical force was not appropriate for the level of threat you were facing.

To succeed in a self-defense claim, you must provide evidence that you were acting to protect yourself from an immediate threat. This can be done through evidence such as witness testimonies, surveillance footage, police reports, or medical records.

Proving Mistaken Identity or Incorrect Facts

Sometimes, a petition for an order of protection is based on errors regarding the key details of the case. Often, this defense is proven by providing contradictory evidence or an alibi. Some of the facts you may challenge include:

• That you were the individual involved in the offense
• The date and time the offense happened
• Incorrect timelines
• Errors in witness statements
• Records of communication that have been taken out of context or misidentified as yours

FAQs

What Is Weak Evidence in an Order of Protection Case?

Weak evidence in an order of protection case is evidence that lacks the validity or specificity needed to prove that you are guilty of the allegations against you. Often, weak evidence includes witness statements that are unreliable or inconsistent with other evidence, victim testimony without other evidence to support it, or inconsistent or vague statements from the victim.

How Can You Get an Order of Protection Dismissed?

While not all orders of protection cases can be dismissed, you can pursue dismissal. While preparing for and during your hearing, you and your Illinois order of protection lawyer can present evidence or challenge evidence to prove that the allegations against you are false or exaggerated. If the person filing the claim cannot present sufficient, valid evidence or fails to show up in court, your case may be dismissed.

What Is the Burden of Proof for an Illinois Order of Protection Case?

According to Illinois’s order of protection laws, the burden of proof in these cases is a preponderance of the evidence. This means that the person filing the order against you must prove that the allegations are more likely than not to have occurred. A preponderance of the evidence is a lower burden of proof compared to a criminal case.

Why Is It Important to Defend Against an Order of Protection?

Defending against an order of protection is important because these orders can have lasting impacts on your life. An order of protection can affect your ability to see your children, remain in your home, or possess firearms. You may also have a difficult time finding employment and housing, and can suffer reputational damage. Furthermore, failing to defend against an order of protection may make it difficult to defend against related criminal charges.

Why You Should Hire an Order of Protection Lawyer

If you are unsure of what the right defense strategy is for your case, speaking with an Illinois order of protection attorney can be an important step. At The Law Office of Jessica Koester, LLC, we can work with you to develop a strategic, evidence-based defense tailored to your case. Attorney Jessica Koester brings decades of experience defending clients against serious allegations and high-stakes criminal charges.

It is important to push back when someone is petitioning for false, exaggerated, or severe orders of protection to be filed against you. Contact The Law Office of Jessica Koester, LLC, to learn how we can help you do so.