NOTE: This article was updated to reflect 2020 changes in Illinois law with passage of Public Act 101-0130. These new laws became effective on January 1st, eliminating the statute of limitations for various sex crimes, including criminal sexual assault, aggravated criminal sexual assault, and aggravated criminal sexual abuse.
All too often a person involved in a hostile confrontation in a domestic relationship will call the police without knowing the serious legal consequences that follow. Usually the person dialing 911 does not intend to have anyone arrested. The person’s motive is typically to deescalate the situation. But unfortunately, once the 911 call is made, that person loses control of the situation. Also, if someone attempts to stop someone from calling 911, they can be charged with another felony for interfering with someone making an emergency phone call.
Police departments nationwide usually have a policy in place for domestic violence cases. If they are dispatched to a domestic dispute, most police departments direct their officers to make an arrest. The officers on scene are supposed to make an arrest even where the complainant (i.e., the person who called 911) says he or she does not want anybody arrested.
It does not matter that the alleged victim refuses to sign a complaint or to make an official statement. Where the police have probable cause to believe a domestic battery took place, they take the suspect into custody, and charge them with violating 720 ILCS 5/12-3.2, the Illinois domestic battery statute. And then it is time to retain an attorney.
Domestic offenses are the exception: Police make an arrest despite the fact that the complainant does not want anyone arrested. In other crimes, the police only make an arrest where the complainant wants it.
The reason for this unusual policy is the potential civil liability of the police department. They fear that if an arrest is not made and another domestic situation arises at that household, they can be liable for negligence for their failure to effectuate an arrest.
Police departments get sued all the time. Police officers take on many legal duties in the course of their employment, including life-saving emergency medical care, CPR, etc. A legal duty is, generally speaking, an obligation to protect the person they were dispatched to assist.
For example, law enforcement officers are usually the first responders in serious automobile accidents. Furthermore, they are trained to provide at least minimal, life-saving medical care before medical professionals arrive.
Where injured motorists die, wrongful death suits regularly ensue. These lawsuits often name the police department, officer, and municipality as defendants, and accuse them of negligence. Basically, these civil lawsuits say that the police violated their legal duty to protect a person and, thus, were negligent.
Consequently, police officers conduct themselves in a way to avoid civil liability.
Domestic violence and civil liability
When it comes to investigating crimes, the courts have said the police have no legal duty to protect people. Wrongful death suits have been filed against police officers, departments, and cities alleging the police were negligent because they failed to prevent a person from becoming the victim of a homicide. The legal theory underpinning these suits has been that the police were negligent and, if they had done their jobs, the victim would still be alive.
The courts have all ruled that police officers have immunity in these lawsuits. They cannot be sued for failure to stop a criminal offense from occurring. The rationale is that the police could never prevent all crimes, and so they should not be liable where crimes occur.
But the rule is different in the context of domestic violence.
Where the police are aware of a report of domestic violence and take no action to protect the victim, then they can be liable for failure to protect that person if they become the victim of a later crime.
This special rule comes from the courts’ position that a person in a violent domestic relationship is likely to be the victim of another domestic offense. The courts have held that in these cases, where the police do nothing, they are not immune from liability. A wrongful death lawsuit can proceed against the department in domestic violence situations.
In cases where a domestic violence victim alleges a sex crime – such as sexual assault under 720 ILCS 5/11-1.20 or sexual abuse under 720 ILCS 5/11-1.50 – the police will generally make an arrest as well. Given the domestic nature and relatively high likelihood of further assault or abuse, an arrest helps protect the victim from further harm.
And so, when a person makes a 911 call during a domestic argument, an arrest is sure to follow. The police take the suspect into custody in just about every case to protect themselves and the victim.
If you would like to read more information about this topic, here’s another article on domestic battery in Illinois.