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August 30, 2018 Articles

Domestic Violence: Jury Trials Recommended

There is a strong bias against defendants in domestic battery and order of protection cases.

By Ralph E. Guderian

Do not forsake me, oh my darling
. . . . . . . . . . . . . . . . . . . . . . . . . . .
 Although you’re grieving
 Don’t think of leaving. . . .

—High Noon

The definition of domestic violence, according to the State of Illinois, is “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.” Ill. Pub. Act 92-0253, 92d G.A., § 112A-3. Only a dating relationship as a minimum is required for domestic violence actions, and disagreements are not uncommon when two people are in an intimate relationship. Such quarrels and misunderstandings can lead to not only physical abuse but also false criminal charges and retaliatory filings for assault and battery. Thus, courts are jammed with domestic violence–related lawsuits. When such situations escalate to the courtroom, jury trials are preferable to bench trials for innocent clients.

Domestic Violence Actions
The principal domestic violence actions are domestic batteries and orders of protection. Police get calls regularly involving allegations of a domestic battery or a violation of an order of protection.

Court actions are filed by one or both parties or by the police. Plea bargaining is employed frequently; but often the victim forgives the abuser, and the domestic battery or violation of an order of protection charge is dismissed for want of charges.

Domestic battery involves bodily harm. Domestic battery occurs when a person “knowingly without legal justification by any means . . . causes bodily harm to any family or household member[] [or] makes physical contact of an insulting or provoking nature with any family or household member.” 720 Ill. Comp. Stat. 5/12-3.2.

According to Ill. Pub. Act 92-0253, 92d G.A., § 112A-3,

“Family or household members” include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, . . . [and] persons who have or have had a dating or engagement relationship. . . .

Domestic battery remedies include, among others, anger management, alcohol treatment classes, and plenary orders of protection and incarceration.

Orders of protection stem from harm or threat of harm. Orders of protection may be extended in conjunction with a delinquency petition or a criminal prosecution in cases involving domestic violence. Additionally, the court may not require physical injury of the plaintiff.

Order of protection remedies include, among others, the granting of exclusive possession of a residence to the petitioner, stay-away orders, counseling requirements for the respondent, physical care and/or possession of the minor child to the petitioner, and the custody and protection of animals.

Jury Trials Versus Bench Trials
When domestic violence is involved, not all cases make it to court. Sometimes, charges are dropped. For example, in one case I handled, the husband, my client, was driving with his wife as a passenger and threatened to drive into a wall by the expressway and injure himself and his wife. The wife decided not to testify against my client, and the state dropped the charges for want of a witness.

Often, though, cases do find their way to the courtroom, When this happens, a jury trial is preferable to a bench trial. Because the potential for future violence is always present when domestic violence is involved, it is difficult for judges to rule in favor of the party charged. There is an implicit bias against defendants, so innocent clients suffer in bench trials.

Bench trials are not optimal for innocent clients. In a case I handled, both parties had entered into a marriage in their 50s, and they were both married before. The wife had two older daughters, and all three of them moved into her husband’s house.

The wife alleged that the husband, my client, had hit her in the leg. This was not true; earlier, she had injured herself on the refrigerator. An emergency order of protection was issued against my client. A picture of the bruise on her leg was entered into evidence at the bench trial. The picture was supposedly taken in March, immediately after the incident; however, she was wearing shorts in the picture. The weather had been too cold for shorts, and there was no evidence presented that she changed clothes after the incident.

The judge at the bench trial considered whether a plenary order of protection should be entered in the wife’s favor, and a plenary order of protection was issued against my client. Thus, my client was, in effect, thrown out of his own house.

The judge was newly appointed, and it appeared that he feared that if he did not grant the order of protection, my client would further harm the wife. Clearly, a jury trial would have been preferable to a bench trial.

Jury trials tend to end well for innocent clients. In another case I had, the charge was domestic battery, and an order of protection would result if my client were found guilty beyond a reasonable doubt. In this case, my client’s former wife went to my client’s house with their small child. She said the child was sick and had to go to the hospital, but the real reason that she went to my client’s house was to get my client to sign some papers regarding child support. My client refused to sign the papers, and she attacked him in the living room. A struggle ensued and she fell, hitting her head against the wall. My client’s parents, brothers, and sisters were home at the time, and some were in the living room at the time of the incident.

The former wife had a serious injury on her head, but instead of going to the doctor or hospital, she went to see her boyfriend. She and her boyfriend then went to my client’s house to beat up my client. However, my client’s family prevented them from entering. The former wife later went to the police and filed a complaint against my client, claiming that he had kicked her when she was lying on the floor in his living room.

My client was then charged with domestic battery. A jury trial was held, and the jury found my client not guilty—even though she was seriously injured and had cried on the stand when testifying.

In yet another case, I had a client who was charged with domestic battery for supposedly stabbing his boyfriend in the stomach with a steak knife. If he were found guilty, a plenary order of protection would issue, along with other punishments. In addition to the fact that my client had not been in a dating relationship with the man who had been stabbed, this was a case of self-defense. I requested a jury trial.

The incident had occurred 10 years prior; my client had left Illinois when he was charged and returned now to get his record cleared. At the time of the incident, my client was in his late teens, and the alleged boyfriend was in his early 30s. The alleged boyfriend claimed they were in a dating relationship and that my client attacked him in his second-floor apartment. In fact, my client had never been on a date with him, and there was no dating relationship; my client only saw him at clubs. On the day of the incident, my client had helped him carry in groceries to his apartment.

In the apartment, the alleged boyfriend gave my client watermelon to eat and a steak knife to cut it with. The alleged boyfriend then approached my client and tried to have sex with him; in self-defense, my client stabbed him in the stomach with the steak knife and left the apartment. The alleged boyfriend went downstairs to get help; pictures showing a trail of blood were introduced into evidence at the trial. In addition, there was a record of a phone call supposedly made by my client threatening to harm the alleged boyfriend further; however, the voice did not sound at all like that of my client.

The jury found my client not guilty.

Innocence does not always prevail in a jury trial. In another case I tried, the jury found my client guilty for allegedly violating an order of protection. My client supposedly remained at a bar instead of leaving right away after seeing the woman, in favor of whom the order of protection was entered, working at the bar.

My client, along with a friend, stopped to get a soft drink during the day. The friend waited in the truck while my client went into the bar. My client did not know that the woman had changed jobs and was working at that particular bar when the order of protection was entered; it was brought out during the trial, though, that he was notified of this.

When my client saw the woman, he left right away. However, another woman who was working at the bar said that he did not leave right away. This woman not only did not know my client but also she was busy with another customer at that time. In addition, she was working for the plaintiff.

My client’s friend testified that my client was in the bar for only five minutes, and my client said he left right away after entering and seeing the woman. Nevertheless, the jury found my client guilty.

A jury trial may not work in all cases when a client is innocent. However, I would still recommended jury trials in such cases because it is difficult for judges to rule in favor of the party charged due to the insidious bias against defendants in domestic battery and order of protection cases.


Ralph E. Guderian is with Ribbeck Law Chartered in Chicago, Illinois.

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