Sexual Harassment: Criminal Charges and Stalking No Contact Orders
By Clarissa Myers
Although sexual harassment is generally governed by state civil statutes such as the Illinois Human Rights Act,1 conduct that constitutes sexual harassment may also rise to the level of a criminal act pursuant to Illinois statue.2 In addition to any civil lawsuit, a person accused of sexual harassment may also face criminal charges or a Stalking No Contact Order, which could ultimately lead to the filing of additional criminal charges.
This article will relay information regarding criminal charges and a civil Stalking No Contact Order for plaintiffs, defendants, businesses, and human resource departments. When referring to the alleged perpetrator of sexual harassment for criminal charges, the terminology “defendant” shall be used for criminal charges and the terminology “respondent” shall be used for a Stalking No Contact Order. When referring to the alleged victim of the sexual harassment, the terminology “victim” shall be used for criminal charges and the terminology of “petitioner” shall be used for a Stalking No Contact Order.
The Complainant in the Criminal Process
Criminal charges are initiated by making a complaint to a police department; the complainant could be a victim of sexual harassment, a witness, a whistle-blower, a human resources team member, or any other person. Police officers have a duty to investigate, which may include gathering information, taking witness statements, investigating the scene of the crime, and generating a police report. If the conduct rises to the level of a criminal act, the police will charge the defendant with a crime that could be classified as a misdemeanor or a felony.
In Illinois, three classes of misdemeanors exist, and crimes exists within each classification that may be charged when sexual harassment has occurred. Class A misdemeanors are punishable by up to one year in the county jail,3 and are crimes such as Battery4 or Domestic Battery.5 Bodily harm perpetrated on the victim, or even physical contact that did not constitute bodily harm may lead to Battery charges, such as cornering a co-worker at work and grabbing his or her hand. For the crime of Domestic Battery, a domestic relationship between the victim and the defendant must exist, such as a dating relationship or two people sharing an apartment.
Class B misdemeanors are punishable by up to six month in the county jail,6 and are crimes such as Harassment through Electronic Communications,7 an example of which could be threatening text messages with sexual overtures sent by the defendant to the victim after the victim has asked the defendant to stop.
Class C misdemeanors are punishable by up to thirty days in the county jail,8 and are crimes such as Disorderly Conduct9 or Assault,10 an example of which could be screaming out a dirty joke by the water cooler and then trying to grab a co-worker’s private area as part of the joke.
Various felony charges, where a defendant would face prison time,11 may also be brought against a defendant, depending on the specific allegations,12 such as criminal sexual assault13 or aggravated criminal sexual abuse.14 An example of criminal sexual assault could be sexual penetration of the victim with force, and an example of aggravated criminal sexual abuse could be sexual touching of the victim while the defendant brandishes a knife. When felony charges are being considered, usually the State’s Attorney will be involved in the approval process to charge a defendant with a felony.
Although not always, the process of attaining justice in the criminal court system can be long and difficult for both the victim and the defendant. Multiple court dates are typically required to gather discovery, give the defense time to investigate and plan,subpoena information and documents, and conduct evidentiary depositions, if needed. Eventually, the case may be set for jury trial or a trial in front of a judge, at the defendant’s election. For trial, multiple witnesses may be subpoenaed,multiple witnesses may testify, including the victim. This entire process can be stressful for all parties and may have a negative effect on a business’ daily routine and work flow when responding to multiple subpoenas or having multiple employees in court rather than at work. A defendant’s plea of guilty or a finding of guilty after a trial will result in a sentence, which may be a conviction, and may include public service, the Sheriff’s Work Alternative Program (“S.W.A.P.”), jail time, fines, court costs, probation, counseling, drug testing, and no contact with the victim, among other sentence parameters, in addition to other collateral consequences. If potential criminal charges exist, any prior plea of guilty or finding of guilty will negatively affect the type of sentence a defendant may be able to attain, and if this occurs while on the sentence, the defendant could be re-sentenced up to the maximum penalty on the original charge, after hearing.15
Additionally, the defendant’s sentence will be entered into the Law Enforcement Agency Data System (“LEADS”), which is available to law enforcement even during a routine traffic stop. Any plea of guilty or finding of guilty will also be of public record, and therefore, available to any person who wishes to look. In certain circumstances, a sentence of court supervision, which is not a conviction, may be able to be expunged from the defendant’s record, depending on a defendant’s criminal history.16 Even with this expungement, with the Internet today, it is impossible to completely erase all traces of the crime from the public purview.
A defendant’s conviction usually brings additional collateral consequences, that negatively impact a defendant’s ability to attain or retain employment, obtain certain licenses, maintain driving privileges, obtaining housing, education, or other benefits. Supported by grants from the Bureau of Justice Assistance, Office of Justice Programs, and the U.S. Department of Justice, the website “National Inventory of the Collateral Consequences of Conviction” discusses a multitude of collateral consequences to a plea of guilty in various jurisdictions.17
The Civil Stalking No Contact Order
In addition to criminal charges, a petitioner may seek relief from sexual harassment by filing a Verified Petition for Stalking No Contact (“Petition”).18 A Stalking No Contact Order is similar to the more commonly known Order of Protection; however, in an Order of Protection, a family or household member relationship must exist between the parties.19 The Petition must allege that stalking occurred, which is defined as “engaging in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety or the safety of a third person or suffer emotional distress,” pursuant to the reasonable person standard.20
This civil matter is initiated by the petitioner filing a Verified Petition for Stalking No Contact Order, often with the assistance of the State’s Attorney, a private attorney, or a court advocate. A petitioner may request an Emergency Stalking No Contact Order, where an ex-parte hearing occurs without notice to the respondent.21 The process is similar to the abovementioned criminal justice process, where multiple court dates occur, discovery is conducted, subpoenas are issued, depositions are conducted, and if no agreement exists, the matter will be set for hearing in front of the judge on the plenary order. However, with this Petition, the respondent does not have the right to a jury trial.22 Additionally, any testimony given by the defendant under oath at a prior proceeding (here, the hearing on the Verified Petition for Stalking No Contact) can be used against him or her at the criminal trial as evidence of a ”prior inconsistent statement” and will not be considered hearsay as long as all the requirements are met.23
Certain statutory remedies are delineated in the Illinois statute for a petitioner who is granted a Stalking No Contact Order.24 This may include, but is not limited to, protection for the petitioner’s family member, a no contact order that includes contact via a third party, and a “stay away” order of an enumerated number of feet away from petitioner’s employment. This is particularly concerning for a business that may employ both the petitioner and the respondent.
Depending on the remedies given by the Stalking No Contact Order, this may affect a business’ workflow, communication, and daily business practices if the petitioner and respondent work in the same area or need to communicate for business. Petitioners and their attorneys should be diligent in making sure that the business is aware of the civil litigation and receives copies of all court orders potentially affecting the workplace. Businesses should also determine appropriate guidelines and company policies to deal with two employees when one employee may not contact nor enter within, for example, 150 feet of the other employee’s workplace.
Respondents may suffer additional effects if a Stalking No Contact Order is granted in favor of the petitioner. Respondents may lose their employment if a court order bars them from entering the workplace or from having contact with the petitioner. Other important considerations include that any Emergency Stalking No Contact or Plenary Stalking No Contact Order will be entered in LEADS, and does not currently have a method of expungement pursuant to Illinois statute. Furthermore, this information is open and available to the public.
Lastly, if a respondent violates a Stalking No Contact Order, he or she may be arrested on an additional criminal charge of Violation of Stalking No Contact Order, which is clearly stated in the Stalking No Contact Order: “An initial knowing violation of a stalking no contact order is a Class A misdemeanor. Any second or subsequent knowing violation is a Class 4 felony.”25
In addition to any civil litigation to deal with the issue of sexual harassment, a victim/petitioner may seek to have criminal charges and a Verified Petition for Stalking No Contact Order brought against a defendant/respondent. Business and human resource departments need to prepare themselves for the impact on the business and have policies in place to properly handle these types of situations. Attorneys representing either plaintiffs or defendants should advise their clients appropriately as to their options and potential liabilities when dealing with the issue of sexual harassment.
1. 775 ILCS 5/100 et seq.
2. 720 ILCS 5/100 et seq.
3. 730 ILCS 5/5-4.5-55
4. 720 ILCS 5/12-3
5. 720 ILCS 5/12-3.2
6. 730 ILCS 5/5-4.5-60
7. 720 ILCS 5/26.5-3
8. 730 ILCS 5/5-7-1
9. 720 ILCS 5/26-1
10. 720 ILCS 5/12-1
11. 730 ILCS 5/ et seq.
12. 720 ILCS 5/Art. 11 et seq.
13. 720 ILCS 5/11-1.20
14. 720 ILCS 5/11-1.60
15. 730 ILCS 5/5-6-4
16. 20 ILCS 2630/5.2
18. 740 ILCS 21/1
19. 750 ILCS 60/201
20. 740 ILCS 21/10
21. 750 ILCS 60/210.1
22. 740 ILCS 21/40
23. 725 ILCS 5/115-10.1
24. 740 ILCS 21/80
25. 740 ILCS 21/110
Clarissa R.E. Myers received her Juris Doctorate from DePaul University College of Law in 2006. Clarissa owns Myers Law LLC and practices in the areas of criminal and family law. She has held the positions of DuPage Bar Foundation President, DCBA Editorial Board Member, and multiple DCBA board positions. Clarissa also co-founded the Law Day Outreach Program and regularly volunteers as a mock trial judge.