NOTE: This article has updated material to explain the impact of Public Act 101-223 (effective January 1, 2020) and Public Act 101-651 (effective August 7, 2020). Once these acts became law in Illinois, certain rules changed concerning aggravated battery offenses.
Many people believe that if they are the victim of a domestic violence incident, they can choose whether to press charges. During the course of a domestic altercation, they call 911 wanting the police to show up and calm the situation. In many instances, they do not want the defendant to be arrested.
But once the call to the police is made, the situation is taken out of their hands.
Domestic Violence Courtrooms
In Illinois domestic violence courtrooms, the person who is the victim has no say as to whether the prosecution will pursue or drop charges. The State’s Attorney has authority over the case and complete discretion as to which cases will be prosecuted.
Judges and attorneys refer to the victim as the complaining witness, because that is who made the complaint (e.g., the 911 call that resulted in the arrest). The fact that the complaining witness refused to sign a written complaint – or make a written statement – has no impact on whether the State’s Attorney will go forward with the case. A phone call to the State’s Attorney also has no influence on whether the case will go forward.
The reason is politics. Each county’s prosecutor, the State’s Attorney, is an elected official. State’s Attorneys get elected by being tough on crime. Consequently, domestic abuse is always a top priority for State’s Attorneys. If the prosecutor is seen as being weak in prosecuting domestic violence offenders, it can make re-election almost impossible.
And so, the State’s Attorney policy will generally prosecute these cases to the fullest extent of the law.
The decision to drop charges does not belong to the victim. In fact, the prosecution can go forward, even if the victim does not cooperate.
For example, a common belief from complaining witnesses is that they can refuse to testify. This belief is mistaken. A complaining witness can be forced to testify against the defendant.
Very few people can lawfully refuse to testify. The defendant can refuse to testify, but only because they are protected by the 5th Amendment privilege against self-incrimination. The defendant can plead the 5th and suffer no consequences.
For anybody else, though, refusing to testify can cause the judge to hold them in contempt of court. In addition to being fined, they can be sentenced to jail. This happens more often than people expect. Once a case makes its way before a judge, the court is usually of the opinion that a refusal to testify is similar to obstruction of justice. Judges typically punish this behavior severely.
Spousal Immunity Privilege
Illinois law does recognize the spousal immunity privilege. This privilege allows a spouse to refuse to answer questions, but only concerning confidential communications between a husband and wife. The privilege protects things that are said in private between spouses. If a spouse is accused of domestic battery under 720 ILCS 5/12-3.2, that is not a confidential communication. Rather, the act was a criminal offense. Therefore, the court could require the complaining witness to testify against the defendant.
Even though domestic battery is usually charged as a Class A misdemeanor, it can become a felony crime. If the defendant previously committed domestic battery – or previously committed numerous other crimes, including aggravated battery – the charge will likely be a Class 4 felony instead.
An arrest for domestic battery presents a complicated situation. The complaining witness has no control over the proceedings. The defendant must rely on the advice and defense strategies of their attorney.