•• Post Traumatic Stress Disorder
They are also slightly more likely to report believing that they would be killed during the assault.
XIV. Special Considerations
There are a number of special considerations in domestic violence cases that require particular attention from the courts. Stalking, strangulation, firearms, and sexual assault are signs of a potentially very dangerous situation. The following section lists elements of these considerations and best practice policies that will assist state’s attorneys in identifying these elements of danger:
A. Stalking
Stalking, including cyberstalking is different from other crimes. First, stalking is not a single act, but a series of behaviors, causing repeated victimization.
Second, stalking is partly defined by its effect upon the victim (National Center for Victims of Crime, 2002). Stalking is a sign of extreme danger for a victim. While stalking cases do not always involve physical violence, stalking is frequently found as a precursor to homicide of women (National Center for Victims of Crime, 2002).
Prior to January 1, 2010, the Stalking Statute in Illinois (720 ILCS 5/12-7.3) prohibited following and/or surveillance, coupled with a threat element. This definition was very limited and failed to take into account the fact that most stalkers engage in a variety of actions that cause distress or fear to victims. The law also failed to adequately deal with the use of stalking technology.
Under the newer provision, a person commits stalking when he or she knowingly engages in a course of conduct directed at a specific person and knows or should know that the conduct would cause a reasonable person to:
1. Fear for their own safety or the safety of another person; or
2. Suffer emotional distress, defined in the statute as “significant mental suffering, anxiety or alarm.”
Course of conduct means 2 or more acts including, but not limited to, acts in which a defendant directly or indirectly or through third parties by any action, method, device or means:
1. Follows, monitors, observes, and surveils the victim;
2. Threatens or communicates to the victim or about the victim;
- 59 -
3. Interferes with or damages the victim’s property or pet; or
4. Engages in other non-consensual contact initiated without the victim’s consent, including but not limited to:
a. Being in the physical presence of the victim;
b. Appearing within the sight of the victim;
c. Approaching or confronting the victim in a public place or on private property owned, leased or occupied by the victim, or
d. Placing an object on, or delivering an object to, property owned, leased, or occupied by the victim.
The wording “method or device” allows for charges when the offender communicates via electronic communication or uses technology to track or monitor the victim.
“Reasonable person” in the statute means a “person in the victim’s situation”
which clarifies that courts can consider the prior history between the parties and other factors that contribute to the victim’s fear or emotional distress. It is helpful for officers to document in the narrative of their report statements made by victims regarding their fear or distress and/or reasons for their fear or distress. It is also helpful to document actions the victim has taken to avoid the stalker, such as changing phone numbers or email addresses, changing the routes they travel, moving their residence, or changing jobs. These changes help to show that the offender’s conduct was non-consensual and upsetting to the victim.
Under the older section of the Stalking statute, a person commits stalking when he or she, knowingly and without legal justification:
1. Follows the victim at least twice; or
2. Places the victim under surveillance at least twice; or
3. Engages in a combination of following or surveillance on at least two separate occasions;
AND
4. Transmits a threat of immediate or future bodily harm, sexual assault, confinement or restraint and the threat is directed towards that the victim or the victim’s family member; or
- 60 -
5. Places the victim in reasonable apprehension of bodily harm, sexual assault, confinement or restraint; or
6. Places the victim in reasonable apprehension that a family member will receive immediate or future bodily harm, sexual assault, confinement or restraint.
A person who has been convicted of stalking need only engage in one act of following or surveillance, coupled with a threat of immediate or future bodily harm, sexual assault, confinement or restraint to the victim or the victim’s family to be charged with a new offense of stalking. 720 ILCS 5/12-3
Stalking is a Class 4 felony. A second or subsequent conviction for Stalking is a Class 3 felony.
B. Aggravated Stalking
A person commits Aggravated Stalking when he or she commits Stalking and:
1. Causes bodily harm to the victim;
2. Confines or restrains the victim; or
3. Violates a temporary restraining order, an order of protection, a Stalking No Contact Order, a Civil No Contact Order or an injunction prohibiting the abuse as defined by the Illinois Domestic Violence Act. 720 ILCS 5/12-7.4.
A person can also be charged with Aggravated Stalking when he or she is or previously was required to register as a sex offender and stalks the same victim as in the sex offense.
Aggravated Stalking is a Class 3 felony. A second or subsequent conviction is a Class 2 felony.
C. Bond provisions
A court may deny the defendant bond in a Stalking case where the "proof is evident or the presumption great that the defendant has committed" stalking and:
1. The State proves by clear and convincing evidence that the "defendant poses a real and present threat to the physical safety of the ... victim ...";
2. The denial of release is "necessary to prevent fulfillment of the threat upon which the charge is based"; and
3. The court finds that no condition or combination of conditions of bond "can reasonably assure the physical safety of the ... victim ..." 725 ILCS 5/110-6.3(b)
- 61 - D. Cyberstalking
A person commits cyberstalking when he or she engages in a course of
conduct using electronic communication directed at a specific person, and he or she knows or should know that would cause a reasonable person to:
1. fear for his or her safety or the safety of a third person; or 2. suffer other emotional distress.
A person commits cyberstalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions, harasses another person through the use of electronic communication and:
1. at any time transmits a threat of immediate or future bodily harm, sexual assault, confinement, or restraint and the threat is directed towards that person or a family member of that person; or 2. places that person or a family member of that person in reasonable
apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint; or
3. at any time knowingly solicits the commission of an act by any person which would be a violation of this Code directed towards that person or a family member of that person.
A person commits cyberstalking when he or she, knowingly and without lawful justification, creates and maintains an Internet website or webpage which is accessible to one or more third parties for a period of at least 24 hours, and which contains statements harassing another person and:
1. which communicates a threat of immediate or future bodily harm, sexual assault, confinement, or restraint, where the threat is directed towards that person or a family member of that person; or
2. which places that person or a family member of that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint; or
3. which knowingly solicits the commission of an act by any person which would be a violation of this Code directed towards that person or a family member of that person.
- 62 - E. Definitions for purposes of this Section
1. Course of conduct
Course of conduct means 2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person's property or pet. The incarceration in a penal institution of a person who commits the course of conduct is not a bar to prosecution under this Section.
2. Electronic communication
Electronic communication means any transfer of signs, signals, writings, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
"Electronic communication" includes transmissions by a computer through the Internet to another computer.
3. Emotional distress
Emotional distress means significant mental suffering, anxiety or alarm.
4. Harass
Harass means to engage in a knowing and willful course of conduct directed at a specific person that alarms, torments, or terrorizes that person.
5. Non-consensual contact
Non-consensual contact means any contact with the victim that is initiated or continued without the victim's consent, including but not limited to being in the physical presence of the victim; appearing within the sight of the victim; approaching or confronting the victim in a public place or on private property; appearing at the workplace or residence of the victim; entering onto or remaining on property owned, leased, or occupied by the victim; or placing an object on, or delivering an object to, property owned, leased, or occupied by the victim.
6. Reasonable person
Reasonable person means a person in the victim's circumstances, with the victim's knowledge of the defendant and the defendant's prior acts.
7. Third party
Third party means any person other than the person violating these provisions and the person or persons towards whom the violator's actions are directed.
- 63 -
Telecommunications carriers, commercial mobile service providers, and providers of information services, including, but not limited to, Internet service providers and hosting service providers, are not liable under this Section, except for willful and wanton misconduct, by virtue of the transmission, storage, or caching of electronic communications or messages of others or by virtue of the provision of other related telecommunications, commercial mobile services, or information services used by others in violation of this Section.
A defendant who directed the actions of a third party to violate this Section, under the principles of accountability set forth in Article 5 of this Code, is guilty of violating this Section as if the same had been personally done by the defendant, without regard to the mental state of the third party acting at the direction of the defendant. (720 ILCS 5/12-7)
8. Sentencing
a. Stalking is a Class 4 felony and carries a penalty of one to three years for a first offense. 720 ILCS 5/12-7.3(b) and 730 ILCS 5/5-4.5-45.
b. A second or subsequent conviction for stalking is a class 3 felony.
c. Aggravated stalking is a Class 2 felony and carries a penalty of two to five years. A subsequent conviction for stalking or aggravated stalking carries higher penalties. 720 ILCS 5/12-7.4(b) and 730 ILCS 5/5-4.5-35.
9. Policy
Solid policy for state’s attorneys on stalking and cyberstalking is needed in order to increase the use of the stalking law in Illinois. A best practices prosecution policy includes the following:
a. Treat all domestic violence cases as potential stalking cases.
b. The prosecutor should request that bail not be granted when the threat of violence was the basis of arrest. As appropriate, the prosecutor may request preventive detention or referral for a psychiatric evaluation. Intensive pretrial supervision is another option. Evidence that helps support a request for no release include a history of violating court orders, dangerousness assessment findings, and testimony from a detective experienced in stalking, a mental health expert, or a domestic violence and stalking expert. If the court refuses a request for no bail, a prosecutor should then request that the offender be required to wear a GPS tracking device as a condition of bail.
- 64 -
c. Seek to issue a no-contact order relating specifically to the facts of the case and pattern of stalking. It is always best to request an order of protection if the offender qualifies as a household or family member of the victim, as any violation of an order of protection may require the offender to wear a GPS tracking device. A stalking no contact order should be sought only when the stalking is perpetrated by an acquaintance or stranger.
d. If bail is granted, the prosecutor should seek to ensure that the victim is contacted by the jail upon release of the offender.
e. The prosecutor should re-interview the victim early in the case using patience to give the victim the opportunity and feeling of safety to reveal all elements of the stalking behavior. The prosecutor should ask a domestic violence advocate or victim witness specialist to be available to assist the victim in creating a safety plan and locating other useful resources. The advocate can also assist the victim in obtaining an order of protection.
f. The prosecutor should ensure that the victim has information on obtaining an order of protection.
g. The prosecutor should decide what non-stalking charges to file and should include all those having sufficient evidence to prosecute. Potential charges include felonies and misdemeanors.
The prosecutor should also consider using an expert witness to testify about stalking and “a course of conduct” so that jurors understand that seemingly innocent behaviors can comprise elements of the crime of stalking.
h. In a prosecution for stalking or attempted stalking, the prosecutor should consider seeking the forfeiture of any vessel, vehicle or aircraft used with the knowledge and consent of the owner in the commission of said offense pursuant to 720 ILCS 5/36-1. It is more difficult to commit crimes if the things they use to commit the crimes are taken away. This can be a powerful tool in preventing further harassment and/or abuse of the victim.
i. The prosecutor’s office should maintain periodic contact with the victim post sentencing to see if any further episodes of stalking occur, or whether the stalker has been incarcerated or placed on probation. Stalking is one of the few crimes that incarceration does not necessarily end. The offender can continue to stalk through letters and phone calls.
- 65 -
j. Work collaboratively with other elements of the courts to create a comprehensive stalking policy and to enact that policy.
F. Strangulation
Strangulation has been identified as of one of the most lethal forms of domestic violence. As a result, more than half of the states in this country have passed criminal laws specifically dealing with strangulation. In 2010, Illinois amended the Aggravated Battery and Aggravated Domestic Battery statutes to allow for strangulation incidents to be charged as felonies.
Definitions
Victims reporting strangulation often say “I was choked.” It is very important for a victim to describe what happened in their own words, but it is just as important to understand the difference between “choking” and “strangulation” and to use the proper terminology in police reports. “Choking” occurs when a person swallows something that blocks the person’s airway. It is usually accidental.
Under Illinois law, “Strangulation” is intentionally impeding the normal breathing or circulation of the blood of an individual by applying pressure on the throat or neck of that individual or by blocking the nose or mouth of that individual.
Strangulation as a predictor of homicide in domestic violence cases
In several studies of domestic violence homicides, evidence showed that the victim had suffered at least one strangulation episode in the year prior to her death. It is important to note that while only 10% of murders nationally were by strangulation, 90% of those murders by strangulation were domestic violence-related. Many of those victims died without a single visible mark to the victim’s neck.
The San Diego study
The San Diego City Attorney’s Office conducted a study of 300 strangulation cases submitted for prosecution in San Diego in 1995. The research reviewed the existing evidence, including 911 recordings, police and medical reports and photographs, and found that in 50% of cases, officers reported seeing no physical injury when responding to the scene and in 35% of cases the injury was too minor to photograph. Only 15% of cases had a photograph of sufficient quality to be used in court as physical evidence of strangulation.
While visible injury may not be present at the time of police response, there may be other physical signs of strangulation which include the following:
• Neck or throat pain
• Difficulty swallowing
• Hoarseness, change in voice or coughing
• Breathing changes
• Pain to ear or headaches
• Loss of consciousness, lightheadedness, seeing “black spots”
• Hyperventilation
- 66 -
• Nausea or vomiting
• Incontinence or defecation
• Uncontrollable shaking
• Pupils not the same size
• Trouble walking or moving neck
• Loss of memory
• Red spots in the eye
• Miscarriage
One physical sign not well understood until this study was the appearance of pinpoint hemorrhages (red spots), called petechiae, which can be found in the eye, under the eyelids, around the eye, on the face or scalp or, generally, anywhere above the area of constriction.
Disruption of oxygen to the brain may result in behavioral changes in the victim, such as aggressiveness or a combative demeanor.
The medical examiner noted that a victim of strangulation may die from unseen internal injuries days, and in some cases weeks, after the incident. It is important to encourage victims of strangulation to seek medical attention.
Illinois’ Strangulation Law
Illinois has amended the Aggravated Battery and Aggravated Domestic Battery statutes to allow what would otherwise be a misdemeanor battery to be charged as a felony.
Strangulation is defined as:
Intentionally impeding the normal breathing or circulation of the blood of an individual by applying pressure on the throat or neck of that individual or by blocking the nose or mouth of that individual. 720 ILCS 5/12-3.05 (i)
G. Aggravated Battery
A person who commits a battery against another person by strangulation may be charged with Aggravated Battery. 720 ILCS 5/12-3.05 (a)(5) (Formerly: 720 ILCS 5/12-4) Aggravated Battery is typically a Class 3 felony, carrying a penalty of 2 - 5 years.
The sentence can be enhanced for Aggravated Battery by strangulation to a Class 1 felony, carrying a penalty of not less than 4 years and up to 15 years, if any of the following conditions apply:
1. The person used or attempted to use a dangerous instrument while committing the offense;
2. The person caused great bodily harm or permanent disability or disfigurement to the other person while committing this offense;
- 67 -
3. The person has been previously convicted of this violation under the laws of this State or similar laws of another state. 720 ILCS 5/12-3.05 (h)
H. Aggravated Domestic Battery
A simple battery against a family or household member as defined by the Illinois Domestic Violence Act (Domestic Battery) can be charged with Aggravated Domestic Battery when the battery was committed by strangulation. 720 ILCS 5/12-3.3 (a)(5) Aggravated Domestic Battery is a Class 2 felony.
1. Take follow-up photos
Because photos taken by law enforcement may not show evidence that becomes visible later, take photos of any injuries identified during victim interviews.
2. Obtain medical records
Many victims show no signs of external injury. However, due to lack of oxygen to the brain, the victim may suffer minor symptoms or even major symptoms, such as stroke, miscarriage or death up to several weeks later.
Obtain medical records of the victim prior to and post strangulation.
3. Aggressor identification
Look for documentation of an aggressor identification performed by law enforcement at the time of the initial call. It is common for there to be
Look for documentation of an aggressor identification performed by law enforcement at the time of the initial call. It is common for there to be