Has a loved one ever called the police on you for what amounts to an everyday argument? We’ve all been there. Fights break out over something our in-laws said, about the electric bill, or even something as silly as what show to watch on TV. Voices are raised, and the next thing you know somebody is calling the police to “teach you a lesson.”
You’re angry, but you figure you’ve never been in any real trouble. You will make bail, square things off with your family, and the rest will work itself out, right?
A regular battery charge in Illinois is a class A misdemeanor. While a domestic battery charge is also a class A misdemeanor, the consequences are more severe. Domestic battery charges bring far more trouble to your doorstep than you (and often times your feuding family member) expected, and they can have lasting effects.
In this article, we lay out the major differences between domestic battery and non-domestic battery, and give tips on what you can do to fight such charges.
Overview of Domestic Violence in Illinois
The law that governs domestic violence in Illinois is the Illinois Domestic Violence Act of 1986 (IDVA). In general, the purpose of the IDVA is to be able to address domestic violence more effectively than it has been addressed in the past. This means more protection for victims and harsher penalties for violators.
Domestic violence is defined as “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” of a family or household member. Family or household members include everybody from spouses and children to roommates.
Regular, non-domestic battery is when a person “knowingly without legal justification by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” (Criminal Code of 2012). Domestic battery is battery to a family or household member and is the most common type of domestic violence.
Differences Between Domestic Battery & Regular Battery
Now that you have a better understanding of domestic violence, let’s get to the heart of the matter: Which nuances in Domestic Violence Law matter to you?
1. You’re spending the night in jail.
Yes, it’s true. If you are charged with regular battery, you are likely to receive a bond amount you could afford and you’ll be on your merry way in no time. However, when you are charged with domestic battery, you will not be released on bond until you first appear before a judge. In most instances, this means spending the night in police custody.
2. Evidence that is NOT allowed in regular criminal cases may be allowed against you in a domestic battery case.
In court, there is an evidentiary rule against “hearsay.” Hearsay is a statement that was originally made outside of court, that is repeated in court by a witness on the stand for the purpose of proving the truth of the statement. For example, “I heard John say, ‘I hid the gun.’” Such statements are inadmissible, certainly in regular battery cases, because they are unreliable: We cannot confront John about his supposed statement.
Alas, every rule has an exception, and the rule against hearsay has many. The exceptions are all based on the idea that under a specific situation, the statement is reliable. If hearsay does not fit under one of these exceptions, it is not admissible (this is an oversimplification, but it will do for our purposes).
However, even if a hearsay statement does not fit any single exception on the laundry list of exceptions, it could still be admitted in a domestic battery case. A statement not covered by a hearsay exception will be admissible at the court’s discretion. (725 ILCS 5/115-10.2a). (See this article by Adam W. Lasker of the Illinois State Bar Association).
Although there is still a list of criteria that the judge looks at before he/she can make the decision to allow hearsay statements in, it cannot be denied that evidence that would be inadmissible in other cases could be admitted against you in a domestic battery case.
2.1 The nightmare evidence continues…
Another evidentiary twist that could come back to bite you deals with evidence of past crimes. Generally, evidence of other crimes that a person has committed is only admissible if it is (1) relevant, and (2) not offered to prove a person’s tendency, or “propensity,” to commit a crime. We don’t want a jury to say, “He deserves to suffer whether he committed this specific crime or not, he’s a bad person.” (See the Journal of the DuPage County Bar Association).
Guess what? In a domestic battery case, evidence of past crimes could be used for ANY RELEVANT REASON, including propensity. In the State’s closing statement they can argue that you are bent on committing crimes and that it is reasonable to believe that you did it this time. The jury is free to use that information as they see fit. (725 ILCS 5/115-7.4).
3. A domestic battery conviction is PERMANENT.
Cases are resolved either through a trial or, more commonly, what is called a “plea bargain.” Simply put, a plea bargain is an agreement where the accused pleads guilty to the charge in exchange for a determined outcome, which may include “supervision,” “conditional discharge,” “probation,” or jail time.
“Supervision” is not a conviction, and can later be expunged, meaning your arrest record, fingerprints, and pictures (all evidence of the entire ordeal) are destroyed, if a judge approves. It sounds like a good deal, right? It is, but not for you. Unlike regular battery, supervision is not an option on a charge of domestic battery. This means that any plea you make will be a conviction, which in turn means that you cannot have it expunged. You will also have a conviction on your record if you go through a trial and lose, which, of course, cannot be expunged.
Are you having fun yet? Stay tuned.
4. If you’re living in this country illegally, you may not be living here much longer.
On the list of things that can get an illegal immigrant deported, guess what shows up? Domestic violence. The Immigration and Nationality Act (INA) states that a person guilty of a crime of domestic violence, or even violation of a protection order, is to be removed from the United States if the Attorney General gives the okay. (List of deportable crimes). (See article by Richard Link of nolo.com). Protection orders (or “orders of protection”) are explained in detail in the IDVA.
The more serious the crime, the more likely the Attorney General will issue the order to have you deported. As indicated by the next section, even a regular count of domestic battery isn’t always a misdemeanor.
5. If this isn’t your first rodeo, you will be charged with a felony, NOT a misdemeanor.
Regular battery, as we discussed, is a class A misdemeanor. Such a charge is elevated to felony status only if it is AGGRAVATED: the act caused great bodily harm, it constituted torture, a machine gun was used, etc. Slapping somebody is not aggravated battery, and a person would only face class A misdemeanor charges.
Domestic battery is also a class A misdemeanor – if it’s a first time offense. If you had one or two prior convictions, you have officially entered “Felony Land” (a class 4 felony, to be precise). A class 3 felony is awarded to someone with three prior convictions. (Makes sense). If you have four prior convictions, it is a class 2 felony. (720 ILCS 5/12-3.2). You get the picture: You’re in trouble.
So, what can you do?
Okay, enough with the doom-and-gloom. Let’s talk about what you can do to defend yourself.
In case we haven’t made it obvious enough, the most important thing in a domestic violence case is to avoid getting a conviction for domestic violence. So let’s take it from the top.
1. Do NOT talk to the police.
If you are sitting in a room with a two-way mirror, sipping coffee, and the smiling person in front of you is wearing a badge, that’s your final cue to keep your mouth shut. Your previous cue came a few minutes earlier, when the good officer quoted your favorite movie: “You have the right to remain silent, anything you say can and will be used against you in a court of law, you have the right to an attorney…”
Don’t talk to the police. They believe that you are guilty and any evidence they obtain will be used against you. Nothing good comes from it.
In the event that you are ever arrested, for anything, get your picture taken, get fingerprinted, and ask for your lawyer. Do not ask for or say anything further until your lawyer is present.
2. Avoid a domestic violence conviction.
Your best interest is our number one priority, and avoiding a domestic violence conviction is the single most important factor to your success. It is true that supervision cannot be offered on a domestic violence charge. Also true is the fact that being a lawyer is more than just arguing before a jury. Negotiation skills are key.
In the past, we have successfully negotiated deals where our clients pled to an amended charge and received supervision. That means that the charge was treated as if it were regular battery from the get-go, and we were able to avoid a domestic violence conviction, and all of the horrors that come with it.
Many times we could get the entire case dismissed. The nature of domestic violence cases is that they often amount to family feuds. With time to cool down, the victim (“complaining witness”) often does not want to proceed. When this happens, we try to get the case dismissed. Technically, the State does not need the witness' cooperation to proceed, but practically speaking it will be difficult to do so without the complaining witness, absent other evidence.
If a dismissal is not possible and an agreement cannot be reached, you must be prepared to go to trial. The State has to prove you guilty beyond a reasonable doubt. We have years of trial experience on our side and pride ourselves on our willingness to take that step.
3. Prepare for trial.
If this is not your first offense and you are facing a felony charge, the road to trial may be the only road. It doesn’t mean that the case will end up going to trial, but you have to be willing to take that step, and it’s going to take patience.
On the initial court date, we would plead “not guilty” and begin the “discovery” process. The State and the Defense would give each other evidence that they intend to present at trial. Once the trial date arrives, we would have all evidence that could be introduced: No surprises. We put on our case and give you optimal effort.
It is important to retain an experienced attorney in cases like this. We are a team of lawyers that put our clients’ best interests first, and we are confident in our belief that no other lawyers will put forth more energy and effort than us. We understand your needs, inside and out.
If you have been charged with domestic battery, contact us before the ink on the complaint against you has dried. The sooner we get involved, the sooner we can stop the bleeding.