McClellan v. Hull

2023 IL App (1st) 220465, 240 N.E.3d 1160

• Court: Appellate Court of Illinois
• Decided: December 22, 2023
• Docket: 1-22-0465
• Status: Published

Opinion

2023 IL App (1st) 220465

SIXTH DIVISION December 22, 2023 Filing Date

Nos. 1-22-0465 & 1-22-0755 (cons.) _____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

KEITH MCCLELLAN, ) ) Appeal from the Petitioner-Appellee, ) Circuit Court of ) Cook County. v. ) ) Nos. 22 OP 60096 BRIANNA HULL, ) 22 OP 60583 ) Respondent-Appellant. ) The Honorable ) Debra A. Seaton, ) Judge, Presiding.

PRESIDING JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion. Justices Hyman & C.A. Walker concurred in the judgment and opinion.

OPINION

¶1 Respondent Brianna Hull appeals the entry of both, an emergency order of protection

(EOP) and plenary order of protection (POP), that were entered against her by the circuit court

of Cook County in favor of petitioner Keith McClellan. She also appeals the denial of

her petition for a civil no contact order (CNCO) against McClellan. Hull raises multiple issues

on appeal related to the aforementioned orders: (1) the circuit court erred in finding that she Nos. 1-22-0465 & 1-22-0755 (cons.)

did not prove non-consensual sexual penetration, which forecloses McClellan’s claim of

harassment and requires granting of Hull’s CNCO petition; (2) because the circuit court

acknowledged that it could be true that McClellan sexually assaulted Hull, the court necessarily

erred in finding Hull’s statements constituted harassment even if Hull did not prove it occurred;

(3) the circuit court erred in finding that Hull harassed McClellan solely based on defamation

because McClellan failed to prove that Hull made false statements; (4) the circuit court erred

in issuing the emergency order of protection (EOP) and the OP because the parties lacked the

requisite relationship required by the Illinois Domestic Violence Act of 1986 (Domestic

Violence Act) (750 ILCS 60/101 et seq. (West 2022)); (5) the circuit court abused its discretion

by improperly excluding relevant testimony and evidence; (6) the circuit court failed to make

the requisite findings before issuing the OP; (7) the OP includes an unconstitutional prior

restraint on Hull’s free speech; and (8) the circuit court erred in denying Hull’s CNCO petition

and, in the alternative, Hull is entitled to a new hearing on her petition.

¶2 On October 25, 2022, this court granted leave for the filing of an amicus curiae brief in

support of Hull’s appeal by the following organizations: The Network: Advocating Against

Domestic Violence; the Chicago Alliance Against Sexual Exploitation (CAASE); the Illinois

Coalition Against Domestic Violence (ICADV); the Illinois Coalition Against Sexual Assault

(ICASA); Land of Lincoln Legal Aid; Legal Aid Society of Metropolitan Family Services

(LAS); Life Span; Mujeres Latinas en Accion (Mujeres); the National Crime Victim Law

Institute (NCVLI); Prairie State Legal Services, Inc. (PSLS); Resilience; and The Shriner

Center on Poverty Law; collectively referred to as the amici. In their brief, the amici contend

that: (1) sharing experience is fundamental to the healing process for survivors of sexual

violence; (2) social media is an especially essential platform for survivors of sexual violence

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like Hull; and (3) prohibiting survivors from sharing their experience subverts the Domestic

Violence Act and harms the very people it was passed to protect.

¶3 For the following reasons we reverse the order of protection against Hull and affirm the

denial of Hull’s petition for a CNCO.

¶4 I. BACKGROUND

¶5 The background for this appeal comes from the appellate record filed with this court.

Because we believe the question of whether Hull was a family or household member is

dispositive of the issues raised in this appeal relative to the circuit court’s grant of McClellan’s

OPs, we confine our recitation of the background to those relevant facts. We will recite any

additional facts related to the denial of Hull’s CNCO as needed.

¶6 A. Petition for Emergency Order of Protection

¶7 The record reveals that McClellan filed a pro se, self-verified petition for an emergency

order of protection (EOP) pursuant to the Domestic Violence Act (750 ILCS 60/102 et seq.

(West 2020)) on April 23, 2021, against Hull.

¶8 In the petition, McClellan alleged that the parties have or had a “dating or engagement

relationship”; McClellan was “fearful of further abuse”; and, there was a “history of abuse.” 1

The petition sought an order of protection (OP) preventing Hull from committing physical

abuse, harassment, interference with personal liberty and stalking. The petition also sought

exclusive possession of the residence at 12412 South Justine in Calumet Park and exclusive

possession of a 2019 Jeep Wrangler.

1 These allegations were selected by checking the applicable boxes on a State approved preprinted form.

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¶9 McClellan included a summary of the incident(s) comprising the abuse as follows:

“On March 19, 2021[,] I and Brianna Hull met for the first time in person, before

this day weeks before our first date we have talked and facetime each other several times

that is when we became friends. On March 17th she arrived home from school[,] we’ve

discussed that we will be meeting soon. On Friday[,] March 20, 2021[,] she invited me

back out visit her before she leaves to return to school. During that time[,] we went out for

smoothies, smoked, and set [sic] in my vehicle at my home. We both decieded [sic] to have

consensual sex. After this date we haven’t been talking with each other with her going to

school, and [sic] me myself having both of my grandparents passing away 2 weeks apart.

All of a sudden on April 16, 2021[,] I received phone calls and text messages to look on

her twitter accout [sic]. Brianna Hull posted on twitter that she was raped by me, that I’m

a predator that she wants justice for herself and she wants to warn everybody about me of

a sick nature.

After this post on twitter I have been reciveing [sic] unknown phone calls, unknown

cars have been following me from home to work, and work to home. This was one of the

primary reason I will need this order of protection because my life has been threatened with

physical and psychological abuse. Myself and my family is feeling fear and anxiety from

Brianna Hull constantly placing libel statement on her twitter which is false and defamatory

statement about my character. I have nude pictures and text messages that she has been

wanting to get with me now all of a sudden she wants to say I have raped her because I

honestly told her I have a lady friend here which I’ve been knowing for a full year.”

¶ 10 At the ex parte hearing on his EOP petition which was held the same day the petition was

filed, McClellan testified that Hull was a young lady he was dating for a “couple of weeks,

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talking as friends” since approximately March 1, 2021. When the circuit court asked whether

he considered the relationship to be boyfriend and girlfriend, McClellan replied no, they met

in person for the first time on March 19, 2021, and stated that they had consensual sex.

McClellan further stated that they met in person for the second time on March 20, 2021, when

they went out for smoothies and smoked cannabis before deciding to have sex. He also

indicated that they talked after that and all of a sudden, on April 16, 2021, he received a phone

call and text messages to look on Hull’s Twitter account where she posted messages that she

was raped by him, he was a predator, she wanted justice for herself and sought to warn others

of his sick nature. McClellan stated that she posted a photo of him and his name online and

that he thought she filed a police report against him. With respect to the unknown cars,

McClellan stated that he did not see her in any of the cars and had no reason to believe that she

was in any of those cars. McClellan did not testify about any history of abuse or provide any

testimony of threats by Hull as noted in his petition. The circuit court inquired whether Hull

had filed a police report and McClellan indicated that he thought she had.

¶ 11 The circuit court found that under the Domestic Violence Act, after taking into

consideration the verified petition and McClellan’s testimony, there were sufficient averments

of abuse and granted the EOP. The court noted that it was subject to any type of criminal

charges being filed against McClellan or any other limiting status by the State’s Attorney’s

office.

¶ 12 McClellan was granted an ex parte EOP on the same date it was filed and it was in effect

until a hearing date of May 13, 2021. The ex parte EOP provided that McClellan had exclusive

possession of the Calumet Park residence and the 2019 Jeep, and ordered Hull to have no

contact by any means with McClellan.

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¶ 13 The record does not indicate that Hull was served with McClellan’s petition for an EOP.

The sheriff’s affidavit of service indicated that service was unsuccessfully attempted on April

24, 28 and May 3, 2021, at an address in Homewood, Illinois. 2

¶ 14 B. Hull’s Appearance and Motions to Vacate the EOP and Dismiss the Petition

¶ 15 The record does not indicate how Hull learned of the hearings, but the order entered on

May 12, 2021, indicated that the hearing was continued to June 2, 2021, to allow Hull time to

retain an attorney. Hull, subsequently filed her appearance through counsel from Legal Aid

Chicago on June 1, 2021. Hull’s counsel then filed combined motions to vacate the EOP and

dismiss the petition for OP. The motion indicated that the parties met through social media in

March 2021 and met in person to hang out on March 16, 2021, with no sexual behavior. The

motion further stated that McClellan “pestered” Hull to meet again in person, which occurred

on March 19, 2021, at which time Hull told him that she was not interested in any sexual

contact. The motion alleged that despite Hull’s refusal, McClellan had vaginal sexual contact

with her. On March 21, 2021, Hull went to the hospital, obtained a rape kit and reported the

contact to the local police. On April 16, 2021, Hull posted on Twitter an allegedly factual

statement that McClellan had raped her; there were no threats, explicit or implied in the

statement. Hull did not receive prior notice of McClellan’s April 23, 2021, EOP hearing and

therefore did not know or appear in court for the hearing. The motion alleged that McClellan’s

petition provided no dates or details for the alleged incidents of unknown phone calls or

unknown cars following him such as dates, contents of the calls, identification of the callers or

the cars’ appearance. Nor did McClellan provide any proof that the alleged calls or cars

2 Hull is a college student in Charleston, Illinois and was on campus during the various service attempts at what was presumably her local address.

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following him were Hull or her associates. The motion also attacked McClellan’s petition’s

reference to nude photos of Hull, stating that showing the photos in court could constitute the

felony of non-consensual dissemination of private sexual images (720 ILCS 5/11-23.5) as

showing such photographs had nothing to do with whether Hull consented to sex. In May 2021,

Hull deleted the Twitter post about McClellan. The motion further stated that Hull had been in

school at Eastern Illinois University between March 22, 2021, and May 7, 2021, which was

two-and-one-half hours from Calumet Park, Illinois.

¶ 16 In seeking to vacate the EOP, Hull argued that she did not receive the two-day notice

required under the Domestic Violence Act, the parties did not have a dating relationship and

McClellan failed to allege anything that would constitute abuse under the Domestic Violence

Act. Hull argued that McClellan’s petition falsely stated that they were in a dating relationship;

they met through social media in March 2021 and only met twice in person over a few days.

Hull further argued that posting on Twitter about a personal experience of sexual assault is not

harassment of the “rapist” and warning acquaintances about an alleged sexual predator is not

unreasonable. Additionally, the motion argued that even if the court found that Hull was

untruthful about the sexual assault, the more appropriate forum was for McClellan to file a

defamation suit and not in seeking protection under the Domestic Violence Act. Hull also

contended that there was no reason for McClellan to proceed ex parte without giving her proper

notice under the Domestic Violence Act.

¶ 17 Hull also argued that McClellan’s petition should be dismissed because her Twitter post

was truthful and further that she was in Charleston from March 22, 2021, until May 7, 2021,

and thus could not have followed McClellan in a car. Hull attached an affidavit to the motion

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in which she averred to the claims made in her motion. Hull’s motion to dismiss was denied

without prejudice on July 9, 2021.

¶ 18 C. Rehearing on McClellan’s EOP Petition

¶ 19 The EOP petition was subsequently set for rehearing on July 12, 2021, and the hearing

began on that date via the Zoom videoconferencing platform. McClellan had retained counsel

by this time. The EOP was then extended multiple times throughout 2021 as the hearing took

place over several months.

¶ 20 1. McClellan’s Testimony

¶ 21 McClellan testified that he was 24 years old, resided in Calumet Park, Illinois and that he

knew Hull. He stated that he first started speaking to Hull around March 1 or 2, 2021, and

identified her on the screen. McClellan stated that he and Hull texted between March 5 and

March 20, 2021, and met her in person twice. He testified that he met her on March 19 and 20,

2021, in person. McClellan stated that the conversations with Hull were very friendly

conversations. He further testified that they had two in-person dates: on March 19, 2021, they

went to a park and an ice cream shop; and, on March 20, 2021, they got some smoothies and

he took her to his house. He then stated that he filed his petition for an OP because she posted

things on the Twitter and he felt very harassed by them. McClellan stated that Hull made one

post on April 16, 2021, then additional posts on other days. McClellan testified that he had a

twitter account but did not state how he first learned of the Tweets.

¶ 22 At the next hearing date, it was clarified that the dates McClellan and Hull met were

actually March 16 and 19, 2021. McClellan testified that on March 16, 2021, he picked Hull

up from an address in Homewood, they went to get smoothies, and went back to his house

where they sat in his car. He further testified that Hull asked to see him again which is why he

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picked her up again. McClellan stated that they kissed, engaged in oral sex and had consensual

sex. At the close of the August 20, 2021, court date, the circuit court found standing for a

dating relationship between the parties.

¶ 23 2. Stipulations

¶ 24 The parties entered an agreed stipulation on July 23, 2021, to the following:

“1. The parties first met through Facebook in early March 2021.

2. From March 5- March 20, 2021, the parties communicated.

3. The parties met two times in person- first on March 16, 2021, and next on March 19,

2021.

4. The parties stipulate to the authenticity of [McClellan]’s exhibits attached hereto as

Exhibit A.

5. The parties stipulate to the authenticity of [Hull]’s exhibits attached hereto as Exhibit

B.

6. According to the Cook County Sheriff Process Server, on May 5, 2021, the Cook County

Sheriff attempted to serve [Hull] in this case was but was unable to serve her on that day.”

¶ 25 McClellan’s Exhibit A was a printout of the tweets previously tendered and included one

where Hull stated that many people did not want her to speak about the incident “because of

fear and retaliation.” It should be noted that the tweets named “Keith Brian McClennan.” 3

Exhibit B was a printout of text messages between Hull and “Keith Brian McClennan”

presumably dating from March 19 and 20, 2021.

¶ 26 3. Hull’s Testimony

3 We will presume that “Keith Brian McClennan” and McClellan refer to the petitioner.

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¶ 27 Hull testified that she and McClellan met when he messaged her on Facebook on March 3,

2021, and they continued chatting via Snapchat and subsequently via text messages and phone

calls on March 6, 2021. She stated that they met in person on March 16, 2021, when they went

to a park and smoked. Hull testified that they did not kiss, there was no sexual contact between

the parties and they were not out very long. She met with McClellan because he said he was

going through some things and needed to talk. Specifically, Hull stated that McClellan was in

distress over a previous physical assault wherein he was the victim, his mother’s health

condition, and the recent loss of his brother. Hull also testified that although she previously

considered McClellan as a romantic interest, she no longer did after they met in person because

they had no chemistry and just “differences in certain things.”

¶ 28 Hull stated that she did not want to see McClellan again, but did because he kept asking

her and said he wanted to apologize for their earlier arguments, so she relented. After

McClellan picked her up, they went through the drive-through of a nearby Taco Bell before

going to park behind McClellan’s home in Calumet Park. Hull testified that they kissed that

night and she consented to kissing McClellan. She also stated that she consented that

McClellan could perform oral sex on her ultimately but did not consent to vaginal sex, and she

conveyed her lack of consent to him. According to Hull, McClellan said that he would not wait

until she got back to campus because she would be too loud and also said that she “was going

to feel his d*ck tonight” and inserted his penis into her vagina. Hull testified that she told

McClellan that she did not want to have penetrative sex and pushed him off of her by pushing

on his chest.

¶ 29 At the next hearing date, the circuit court stated that it was not relevant whether there was

a sexual assault; under the statute, it had to decide the relationship between the parties and

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whether Hull’s social media messages were defamatory. The circuit court allowed Hull to

testify that she went to the hospital the following day and a rape kit was done. Hull also testified

that she made a police report. The previously stipulated text messages between the parties that

took place after the sexual conduct occurred were admitted into evidence, Hull’s counsel was

allowed to publish them, and Hull read the messages into the record. A relevant excerpt from

the messages on March 20, 2021, after Hull was dropped off at home, follows:

“[HULL] Yeen even have to do allat last night

That was shiesty asf

[MCCLENNAN] Apologized

[HULL] aPoLogIzEd

N*iggas wtf? You were born of a F*cking woman you have f*cking sisters

You could’ve waited

But YOU just had to have your way w me

You know that sh*t is not justifiable! I dare you to try and explain that sh*t. But that’s

between you and god n*gga

[MCCLELLAN] I’m not gonna go through this I told you

My brother just died an you got to whole p*ssy in my face wtf you tweaking just chill

[HULL] Everybody deal with loss n*gga! That don’t mean you can’t keep your d*ck to

yourself

[MCCLELLAN] I

[HULL] I told you several times I wasn’t tryna have sex

[MCCLELLAN] K

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[HULL] I told you several times no

I told you several times stop

[MCCLELLAN] Now you want talk but couldn’t talk lastnight it’s a new day don’t do this

***

[HULL] Pain supposed to humanize you! You not supposed to violate people because

you’re hurting! Now wtf you done! For a few moments of getting yo d*ck wet

[MCCLELLAN] I’m not tho but you show couldn’t talk yesterday

What you wanna do

[HULL] I couldn’t talk bc I was tryna not to throaw up in your f*ckin vehicle bc of how

physically sick you mentally sick a** made me feel by doing that bullsh*t

I should’ve just grabbed the wheel and took both our a** outta here and expedite your

f*cking trip straight to hell

[MCCLELLAN] You ain’t crazy

[HULL] B*tch F*CK YOU! You’re the one who is crazy! There’s no doubt in my f*cking

mind that you do this on a normal basis! You Buford a** sick a** delusional a** n*gga!

God gone get you’re a** right!

[MCCLELLAN] God Got me..

I ain’t worried.”

¶ 30 Hull went on to testify that she did not talk to McClellan after that because she had “no

interest in engaging with a man who sexually assaulted [her]. There would not be any

productive conversation to be had.” When asked why she posted the Tweets between April 16

and 25, 2021, Hull stated that it was sexual assault awareness month; however, the circuit court

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refused to take judicial notice that April is sexual assault awareness month. Hull further

testified that she and McClellan were not connected on Twitter and she did not intend for him

to see the Tweets; they were directed to other women who were sharing their experiences with

the Me Too movement. Hull stated that she later removed the Tweets because she did not

intend anything other than to bring awareness during that time and did not want to be subject

to more attention and scrutiny for something she no longer wanted to think about. She testified

that her Twitter posts were not public. Hull further testified that she did not follow McClellan

in a car or direct anyone to do so, had not spoken with him since March 19, 2021, and did not

direct anyone else to call him.

¶ 31 On cross-examination, Hull testified that she sent nude or partially nude photos to

McClellan; when her counsel objected, the circuit court stated that sending of the photos would

be relevant for determining whether the parties were in a dating relationship.

¶ 32 4. The Circuit Court’s Findings

¶ 33 On December 20, 2021, the circuit court found that McClellan’s allegations regarding

abuse fell under the harassment prong of the Domestic Violence Act for defamation based on

the accusations of rape in a social media post. The court found that the allegations regarding

being followed in a car was not proven. The court found that, with respect to a dating

relationship, that a “social relationship developed on a social media platform for a few weeks

for the express purpose of two people getting together for the purpose of meeting one another

and going out on a date.” The court also found that the date occurred and then another date was

set where the disputed sex took place. The court found that, from McClellan’s perspective, the

meetings were an attempt at a relationship, and that Hull’s behavior showed more than a casual

interest in McClellan, but a minimal interest in the person. The court found it unreasonable

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that a person who was not romantically interested in another person would go out with a person,

kiss them, get undressed and get into the back of a car with them. The court concluded that the

evidence showed an “attempt to start a dating relationship” and that McClellan met his burden

to show that a dating relationship existed although it was at the beginning. The court found

that Hull’s act of sending nude photos to McClellan and the consensual sex acts show the

context of the parties’ relationship.

¶ 34 With respect to abuse, the court found that Hull’s posting of social media posts were

defamatory and constituted harassment of McClellan under the Domestic Violence Act. The

court found that the text messages from March 20, 2021, did not mention the word “rape” and

did not indicate that a sexual assault took place. The court then stated that both parties were

prohibited from posting about each other or the case on social media, and noted that there was

a criminal case pending. The court then amended the EOP to include the prohibition.

¶ 35 The matter was continued for a hearing on the plenary OP. McClellan adopted the evidence

that was presented at the EOP rehearing. Hull briefly testified that she went to the hospital and

that a rape kit was done. She also spoke with police while at the hospital.

¶ 36 The circuit court granted McClellan’s petition for an OP on March 4, 2022, and entered a

plenary OP against Hull for two years. Its findings were consistent with those made at the

rehearing on McClellan’s EOP petition. Hull filed her notice of appeal from the grant of

McClellan’s OP on April 1, 2022 (1-22-0465).

¶ 37 5. Hull’s Petition for a Civil No Contact Order (CNCO)

¶ 38 Hull’s CNCO petition was filed on January 12, 2022, and raised statutory allegations that

McClellan engaged in non-consensual sexual penetration with her. The hearing on her petition

was held on April 29, 2022.

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¶ 39 At the hearing on Hull’s petition, the parties agreed to use the evidence presented during

the OP hearing and both parties’ counsel presented argument. The circuit court found that

Hull’s testimony was full of contradictions and that it was clear from the testimony presented

by both parties that the parties engaged in consensual contact of kissing, removal of Hull’s

clothes and oral sex. The court further found that based on the testimony presented, when Hull

pushed McClellan away during vaginal sex, he stopped, they got dressed and McClellan took

Hull home. The court considered evidence presented by Hull that she did not like McClellan

yet met up with him twice. The court concluded that it did not know what occurred in the car

but found that Hull’s credibility was at issue and it was not clear by a preponderance of the

evidence that non-consensual sex occurred. Hull’s petition was denied and she filed her timely

notice of appeal on May 27, 2022 (1-22-0755). The appeals were consolidated on June 21,

2022.

¶ 40 II. ANALYSIS

¶ 41 Hull contends on appeal that: (1) the circuit court erred in finding that she did not prove

non-consensual sexual penetration, which forecloses McClellan’s claim of harassment by

defamation and requires the grant of Hull’s CNCO petition; (2) because the circuit court

acknowledged that it could be true that McClellan sexually assaulted Hull, the court necessarily

erred in finding Hull’s statements constituted harassment; (3) the circuit court erred in finding

that Hull harassed McClellan solely based on defamation because McClellan failed to prove

that Hull made false statements; (4) the circuit court erred in issuing the EOP and the OP

because the parties lacked the requisite relationship required by the Act; (5) the circuit court

abused its discretion by improperly excluding relevant testimony and evidence; (6) the circuit

court failed to make the requisite findings before issuing the OP; (7) the OP includes an

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unconstitutional prior restraint on Hull’s free speech; and (8) the circuit court erred in denying

Hull’s CNCO petition and, in the alternative, Hull is entitled to a new hearing on her petition.

Essentially, Hull asks this court to review the grant of both the EOP and OP in McClellan’s

favor, and the denial of her petition for a CNCO.

¶ 42 A. Lack of Appellee Brief

¶ 43 On November 30, 2022, this court granted McClellan’s pro se motion for extension of time

to file his appellee brief. Nevertheless, McClellan did not file a brief and consequently on

March 7, 2023, this court entered an order taking the case on the record and the appellant’s

brief only. McClellan then filed a pro se motion for leave to file a settlement, which appeared

to allege that the appeal should be dismissed because there was a settlement offer. That motion

was stricken by this court for lack of clarity on March 28, 2023. 4 A reviewing court is not

compelled to serve as an advocate for the appellee and is not required to search the record for

the purpose of sustaining the trial court’s judgment. Benjamin v. McKinnon, 379 Ill. App. 3d

1013, 1019 (2008). However, if the record is simple and the claimed errors are such that the

reviewing court can easily decide them without the aid of an appellee’s brief, that court should

decide them without the aid of an appellee’s brief, that court should decide the merits of the

appeal. Id.

¶ 44 Because a primary issue in this appeal is whether the record supports the trial court’s

finding that McClellan proved by a preponderance of the evidence that he was abused, we

4 This court’s order stated that McClellan’s motion was unclear but gave him leave to file a new motion that clearly stated the relief being sought; additionally, if the case had settled, he should advise this court and the parties of record. McClellan did not file any further documents with this court; and upon further inquiry, Hull’s counsel indicated that this case had not settled contrary to McClellan’s assertions in his motion.

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conclude that we can easily determine the merits of this appeal without an appellee’s brief. We

will therefore consider the appeal on the record and appellant’s brief only pursuant to the

principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d

128, 131-33 (1976).

¶ 45 B. Statutory Framework Surrounding Domestic Violence Orders of Protections

¶ 46 We begin our discussion by setting forth the applicable statutory framework in the

Domestic Violence Act relevant to orders of protection.

¶ 47 The Domestic Violence Act is to be “construed liberally to promote its purposes, which

are to:

(1) Recognize domestic violence as a serious crime against the individual and

society which produces family disharmony in thousands of Illinois families, promotes a

pattern of escalating violence which frequently culminates in intra-family homicide, and

creates an emotional atmosphere that is not conducive to healthy childhood development;

(2) Recognize domestic violence against high risk adults with disabilities, who

are particularly vulnerable due to impairments in ability to seek or obtain protection, as a

serious problem which takes on many forms, including physical abuse, sexual abuse,

neglect, and exploitation, and facilitate accessibility of remedies under the Act in order to

provide immediate and effective assistance and protection.

(3) Recognize that the legal system has ineffectively dealt with family violence in

the past, allowing abusers to escape effective prosecution or financial liability, and has

not adequately acknowledged the criminal nature of domestic violence; that, although

many laws have changed, in practice there is still widespread failure to appropriately

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protect and assist victims;

(4) Support the efforts of victims of domestic violence to avoid further abuse by

promptly entering and diligently enforcing court orders which prohibit abuse and, when

necessary, reduce the abuser’s access to the victim and address any related issues of child

custody and economic support, so that the victims are not trapped in abusive situations by

fear of retaliation, loss of a child, financial dependence, or loss of accessible housing or

services;

(5) Clarify the responsibilities and support the efforts of law enforcement to

provide immediate, effective assistance and protection for victims of domestic violence,

recognizing that law enforcement officers often become the secondary victims of

domestic violence, as evidenced by the high rates of police injuries and deaths that occur

in response to domestic violence calls; and

(6) Expand the civil and criminal remedies for victims of domestic violence;

including, when necessary, the remedies which effect physical separation of the parties to

prevent further abuse.” 750 ILCS 60/102 (West 2020).

¶ 48 Section 203 of the Domestic Violence Act provides that a petition for an OP shall be in

writing and verified or accompanied by affidavit and shall allege that petitioner has been

abused by respondent, who is a family or household member. 750 ILCS 60/203(a) (West 2020).

¶ 49 Section 214(a) of the Domestic Violence Act provides that an order of protection may be

issued if the court feels that petitioner has been abused by a family or household member, or

that petitioner is a high-risk adult who has been abused, neglected or exploited as defined in

the Act. 750 ILCS 60/214(a) (West 2022). Abuse is defined as physical abuse, harassment,

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intimidation of a dependent, interference with personal liberty or willful deprivation. 750 ILCS

60/103(1) (West 2022).

¶ 50 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, persons who share or allegedly share a blood relationship through a child, persons

who have or have had a dating relationship, persons with disabilities and their personal

assistants, and caregivers as defined in Section 12-4.4a of the Criminal Code of 2012. 750

ILCS 60/103(6) (West 2022). For purposes of that paragraph, neither a casual acquaintanceship

nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed

to constitute a dating relationship. Id.

¶ 51 Harassment is defined as knowing conduct which is not necessary to accomplish a purpose

that is reasonable under the circumstances; would cause a reasonable person emotional

distress; and does cause emotional distress to the petitioner. 750 ILCS 60/103(7) (West 2022).

Unless the presumption is rebutted by a preponderance of the evidence, the following types of

conduct shall be presumed to cause emotional distress:

(i) creating a disturbance at petitioner’s place of employment or school;

(ii) repeatedly telephoning petitioner’s place of employment, home or residence;

(iii) repeatedly following petitioner about in a public place or places;

(iv) repeatedly keeping petitioner under surveillance by remaining present outside his

or her home, school, place of employment, vehicle or other place occupied by

petitioner or by peering in petitioner’s windows;

(v) ***

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threatening physical force, confinement or restraint on one or more occasions.” 750 ILCS

60/103(7) (West 2022).

¶ 52 Section 214(b) provides the remedies to be included in an OP. Subsection 214(b)(1)

prohibits the respondent’s harassment, interference with personal liberty, intimidation of a

dependent, physical abuse, or willful deprivation, neglect or exploitation or stalking of the

petitioner if such abuse, neglect, exploitation or stalking has occurred or otherwise appears

likely to occur if not prohibited. 750 ILCS 60/214(b)(1) (West 2020). Subsection 214(b)(2)

prohibits the respondent from entering or remaining in any residence, household, or premises

of the petitioner, including one owned or leased by respondent if petitioner has a right to

occupancy. Id. § 214(b)(2). Subsection 214(b)(3) orders the respondent to stay away from

petitioner or any other person protected by the order of protection, or prohibit respondent from

entering or remaining present at petitioner’s school, place of employment, or other specified

places at times when petitioner is present, or both, if reasonable. Id. § 214(b)(3). Finally,

subsection 214(b)(10) grants petitioner exclusive possession of personal property if petitioner,

but not respondent owns the property. Id. § 214(b)(10).

¶ 53 In determining whether to grant a specific remedy, the court shall consider relevant factors,

including but not limited to the following: the nature, frequency, severity, pattern and

consequences of the respondent’s past abuse of the petitioner and the likelihood of danger of

future abuse. 750 ILCS 60/214(c)(1)(i) (West 2020). The court’s findings shall be in an official

record or in writing and shall at minimum state that the court considered: the applicable

relevant factors described in section 214(c)(1) and (2); whether the conduct or actions of the

respondent, unless prohibited, would likely cause irreparable harm or continued abuse; and

whether it was necessary to grant the requested relief to protect petitioner. Id. § 214(c)(3).

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¶ 54 When issuing an ex parte EOP, the court can alternatively use the following procedure:

“[w]hen a verified petition for an [EOP] in accordance with the requirements of

Sections 203 and 217 is presented to the court, the court shall examine petitioner on oath

or affirmation. An emergency order of protection shall be issued by the court if it appears

from the contents of the petition and the examination of petitioner that the averments are

sufficient to indicate abuse by respondent and to support the granting of relief under the

issuance of the [EOP].” Id. § 214(c)(4).

¶ 55 C. Standard of Review

¶ 56 The central inquiry in any proceeding to obtain an order of protection is whether the

petitioner has been abused. In re Marriage of Holtorf, 397 Ill. App. 3d 805, 808 (2010).

Proceedings to obtain an order of protection under the Act are civil in nature and governed by

the preponderance of the evidence standard. Id. A reviewing court will reverse a finding of

abuse only if it is against the manifest weight of the evidence. Id.

¶ 57 D. Ex Parte Emergency Order of Protection (EOP)

¶ 58 We first examine Hull’s challenge to the circuit court’s grant of an ex parte EOP to

McClellan on April 23, 2021. As noted in the background, McClellan initially filed his EOP

petition on April 23, 2021, which was granted the same day. That EOP was extended several

times throughout the proceedings before being set for rehearing on McClellan’s motion in July

¶ 59 We note, however, that the EOP has since expired and is now moot. We generally do not

review moot cases or render advisory opinions. In re Shelby R., 2013 IL 114994, ¶ 15.

However, we find that the question of whether McClellan made the necessary showing for an

emergency order falls within the public interest exception to the mootness doctrine. See

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Hedrick-Koroll v. Bagley, 352 Ill. App. 3d 590, 592 (2004); Creaser v. Creaser, 342 Ill. App.

3d 215, 219 (2003). That exception allows review of a formally moot question when (1) the

moot question is one of public interest, (2) an authoritative determination of the issue is

desirable for the guidance of public officers, and (3) the question will likely recur. Creaser,

342 Ill. App. 3d at 219. Because the use of emergency orders under the Domestic Violence Act

is a widespread and important method of providing legal protection for the victims of domestic

violence, we find that Hull’s challenge to the issuance of the ex parte EOP meets the first and

third criteria for the public interest exception to the mootness doctrine. See id. Additionally,

because the use of ex parte proceedings under the Domestic Violence Act makes it

“particularly critical that courts be informed of the standards for the granting of emergency

orders,” we find that the second criterion is met as well. Id. Accordingly, we will review the

circuit court’s entry of the ex parte EOP against Hull.

¶ 60 Section 217 of the Domestic Violence Act governs the issuance of EOPs. That section

provides that an EOP shall issue if the petitioner satisfies its requirements for one or more of

the requested remedies. 750 ILCS 60/217(a) (West 2020). Moreover, “[f]or each remedy

requested, the petitioner shall establish that:

(1) The court has jurisdiction under Section 208;

(2) The requirements of Section 214 are satisfied; and

(3) There is good cause to grant the remedy, regardless of prior service of process or of

notice upon the respondent, because:

(i) For the remedies of ‘prohibition of abuse’ described in Section 214(b)(1), ‘stay

away order and additional prohibitions’ described in Section 214(b)(3), * * * the harm

which that remedy is intended to prevent would be likely to occur if the respondent

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were given any prior notice, or greater notice than was actually given, of the petitioner’s

efforts to obtain judicial relief;

(ii) For the remedy of ‘grant of exclusive possession of residence’ described in

Section 214(b)(2), the immediate danger of further abuse of the petitioner by the

respondent, if the petitioner chooses or had chosen to remain in the residence or

household while the respondent was given any prior notice or greater notice than

actually given of the petitioner’s efforts to obtain judicial relief, outweighs the

hardships to the respondent of an emergency order granting the petitioner exclusive

possession of the residence or household. ***;

(iii) For the remedy of ‘possession of personal property’ described in Section

214(b)(10), improper disposition of the personal property would be likely to occur if

the respondent were given any prior notice, or greater notice than was actually given,

of the petitioner’s efforts to obtain judicial relief, or if the petitioner has an immediate

and pressing need for possession of that property.” 750 ILCS 60/217(a)(1), (2), (3)

(West 2020).

¶ 61 The plain language of the Domestic Violence Act does not require that actual affidavits be

attached to the petition. Instead, the Domestic Violence Act requires that the petitioner show

good cause to grant the remedy without prior notice to respondent, and the manner in which

good cause can be shown is also not specified in the Domestic Violence Act. Whitten v.

Whitten, 292 Ill. App. 3d 780, 785 (1997). However, a petitioner must provide proof of exigent

circumstances that warrant the issuance of an emergency order without prior notice to

respondent. Id. at 785-86.

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¶ 62 Turning to the case at bar, the record reveals that the circuit court invoked the procedures

for entering an ex parte EOP as found in Section 214(c)(4), which allowed the court to bypass

the factual findings “[w]hen a verified petition for an [EOP] in accordance with the

requirements of Sections 203 and 217 is presented to the court” and to examine petitioner on

oath or affirmation. 750 ILCS 60/214(c)(4) (West 2020). An emergency order of protection

shall be issued by the court under that section “if it appears from the contents of the petition

and the examination of petitioner that the averments are sufficient to indicate abuse by

respondent and to support the granting of relief under the issuance of the [EOP].” Id.

¶ 63 We review the circuit court’s determination that the contents of the petition and averments

by McClellan supported the issuance of the EOP under the manifest weight of the evidence

standard. After a careful review of both the petition and McClellan’s testimony at the ex parte

hearing on his petition, we find that the circuit court’s decision to grant McClellan an ex parte

EOP was against the manifest weight of the evidence.

¶ 64 As noted above, in order for the court to hold an ex parte hearing on McClellan’s petition

for an EOP under Section 214(c)(4) of the Domestic Violence Act, the petition must have

complied with Sections 203 and 217. Section 203 requires that the petition for an OP shall be

in writing and verified or accompanied by affidavit and shall allege that petitioner has been

abused by the respondent, who is a family or household member. 750 ILCS 60/203(a) (West

2020). While McClellan’s petition on its face sought relief from abuse by a family or household

member because he checked the appropriate box, his testimony at the ex parte hearing did not

support the pleading. As noted above, when parties are not married and do not live together,

the petitioner must show a dating relationship in order to seek relief under the Domestic

Violence Act. See 750 ILCS 60/103(6) (West 2020). McClellan testified at the ex parte hearing

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that he was not in a boyfriend-girlfriend relationship with Hull but instead that they first began

communicating on March 1, 2021, that they were “dating and talking as friends,” and met for

the first time in person on March 19, 2021. This testimony corresponded with the summary of

the incident attached to the petition, which indicated that the parties initially met and

communicated online just over two weeks before meeting for the first time. There was no other

evidence presented of the parties’ relationship status.

¶ 65 The Domestic Violence Act added the phrase “dating relationship” in 1993, and explains

that it does not include a casual acquaintanceship or ordinary fraternization between two

individuals in business or social contexts. 750 ILCS 60/103(6) (West 2020); Alison C. v.

Westcott, 343 Ill. App. 3d 648, 651 (2003). In Alison C., the second district of this court found

that one of the purposes of the Domestic Violence Act was to prevent abuse between persons

involved in intimate relationships and that the legislature intended for a “dating relationship”

to refer to a serious courtship, one that was more serious and intimate than casual. Alison C.,

343 Ill. App. 3d at 652-53. The second district further clarified that it was not enough to

establish an intimate relationship; there must be a dating relationship. People v. Young, 362 Ill.

App. 3d 843, 851 (2005). In People v. Howard, 2012 IL App (3d) 100925, ¶¶ 9, 10, a domestic

battery case, the third district of this court concluded that although the defendant had numerous

sexual encounters, it was not enough to show that defendant and the victim had an intimate

relationship. The Howard court noted a dating relationship means a serious courtship which

must be, at minimum, an established relationship with a significant romantic focus. Id. ¶ 10.

The parties’ numerous sexual encounters were an established relationship that was physical in

nature but was not a romantic dating relationship. Id. The second district of this court further

clarified that its definition in Alison C. of a dating relationship was to distinguish “serious

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courtship” from casual, nascent, or potential relationships. People v. Allen, 2020 IL App (2d)

180473, ¶ 20. The court found that a degree of romantic reciprocity should be present and that

if one person is merely the object of desire, then even if a social relationship exists between

the parties, there is no dating relationship. Id. ¶ 22. This district applied the same definition

that a dating relationship was a serious courtship that at least needed to be an established

relationship with a significant romantic focus. People v. Wallace, 2020 IL App (1st) 172388,

¶ 27.

¶ 66 Applying those definitions to the circumstances presented in this case, neither the

allegations in the petition nor the testimony at the hearing support an inference that the parties

were in a dating relationship by a preponderance of the evidence as required by Section 203.

McClellan’s petition and his testimony at the initial ex parte EOP hearing that he was “dating”

Hull, that they were talking as friends beginning on or about March 1, 2021, and met in person

for the first time on March 16, 2021, for a date. The second “date” included sexual activity. He

also stated that he did not consider them to be boyfriend and girlfriend. This evidence supports

an inference of a brief potential relationship that involved going on dates, but not an actual

dating relationship as contemplated by the Domestic Violence Act. Thus relief under the

Domestic Violence Act was not available to McClellan. Because McClellan failed to satisfy

the family or household member requirement at the ex parte hearing by a preponderance of the

evidence, the EOP petition should have been denied. It was against the manifest weight of the

evidence for the circuit court to find that respondent was a family or household member.

¶ 67 We recognize that the definition of a dating relationship has evolved over time and

continues to evolve. The trend of not defining a relationship is growing more and more

common, and the term “dating” has come to be a catch-all. https://zoosk.com/date-mis/single-

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life/dating-meaning-definition-of-dating/. Dating today is most commonly defined as “a stage

of romantic relationships in which two individuals engage in an activity together, most often

with the intent of evaluating each other’s suitability as a partner in future intimate relationship.”

https://parade.com/living/dating-vs-relationship. Being in a relationship suggests a much

deeper level of intimacy and commitment. Id. Young people routinely do not consider going

on dates with someone to equate being in a relationship with them, no matter the time frame.

The determinations of whether parties are in a dating relationship for purposes of the Domestic

Violence Act will continue to be decided on a case-by-case basis as each case presents its own

set of circumstances, and we will continue to interpret “dating relationship” not to include

casual or potential relationships based on the precedent in this State.

¶ 68 Although we have determined that McClellan’s failure to establish that Hull was a family

or household member is dispositive of whether he was entitled to the ex parte EOP, we will

briefly touch on the necessity of exigent circumstances of abuse in order to grant EOPs in an

ex parte hearing, because McClellan also failed to satisfy the requirements of the Domestic

Violence Act to establish abuse that required exigent, ex parte proceedings under Section 217.

His statement of the incident that was included with his petition indicated that there were social

media posts made on April 16, 2021, that there were “unknown” cars following him and

“unknown” callers calling him. There was no detail provided about the unknown cars or

callers, and McClellan stated during his testimony at the hearing that he did not believe that

Hull was responsible for the calls or cars, nor was she present in the unknown cars. While

McClellan verbally stated what the social media posts said, there were no attachments or other

proof to support his allegations presented to the court with his petition or with his testimony.

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¶ 69 It should also be noted that the petition for an EOP was filed and the ex parte hearing held

on April 23, 2021, which was a week after the complained-of social media posts were made.

There was no testimony that there were continuous posts or other posts beyond that date at the

time the EOP was sought or granted. There were no allegations made of immediate harm or

danger to McClellan, either in the petition or during his testimony at the hearing, nor was there

any allegation or evidence presented that the abuse would recur if Hull had been given proper

notice. In short, there was no evidence of exigent circumstances presented that supported

having an ex parte hearing or entering an EOP without proper notice to Hull. We therefore

conclude that it was against the manifest weight of the evidence for the circuit court to grant

McClellan an EOP in an ex parte proceeding where McClellan failed to prove exigent

circumstances by a preponderance of the evidence.

¶ 70 In sum, because McClellan failed to satisfy the requirements of Sections 203 and 217 by a

preponderance of the evidence, he should not have been granted an EOP in an ex parte

proceeding.

¶ 71 E. EOP Rehearing and Plenary Order of Protection (OP)

¶ 72 We next review whether McClellan’s EOP petition should have been granted after the

second hearing, and whether the petition for a plenary OP should have been granted. It is worth

noting that the improper grant of an EOP on April 23, 2021, led to the EOP being extended for

almost a year while proceedings on his petition continued. The EOP was eventually reissued

on December 8, 2021, followed by the plenary OP that was entered on March 4, 2022.

¶ 73 As stated above, it is the petitioner’s burden to prove the statutory requirements by a

preponderance of the evidence. Sanchez v. Torres, 2016 IL App (1st) 151189, ¶ 20. The circuit

court’s determination as to whether the petitioner has met that burden will not be disturbed

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unless it is against the manifest weight of the evidence. Richardson v. Booker, 2022 IL App

(1st) 211055, ¶ 44. We find that McClellan failed to do so.

¶ 74 We have already determined that McClellan failed to establish that Hull was a family or

household member because there was no dating relationship between them. His EOP petition

and testimony at the ex parte hearing on April 23, 2021, did not establish such a relationship.

This was not cured by his testimony at the later rehearing, where he testified that he “intended”

to have a dating relationship with Hull, despite the circuit court’s finding that McClellan’s

testimony supported standing for a dating relationship. Nor do we agree with the court’s

finding that the “attempt” to start a dating relationship was equal to the existence of a dating

relationship between the parties. We also take issue with the circuit court’s finding that sending

nude photos, kissing and engaging in oral sex established the existence of a dating relationship.

The Domestic Violence Act is very clear on what constitutes a dating relationship (750 ILCS

60/103(6) (West 2020)), and the “intent” to have one is not the same as having one. The failure

to establish that Hull was a family or household is fatal to the petition because the Domestic

Violence Act is intended to protect victims of domestic abuse. Those not in a dating

relationship do not fall within the protection of the statute. The error of granting McClellan’s

petition for an EOP without the requisite familial relationship was compounded by the circuit

court’s grant of EOP after rehearing and the plenary OP which should not have happened. We

reiterate that McClellan was not entitled to any remedy under the Domestic Violence Act

because he was not a person protected under the Act. Thus, we find that the entry of the plenary

OP against Hull was against the manifest weight of the evidence and must be reversed.

¶ 75 Our conclusion makes it unnecessary to address the other issues raised by Hull on this

appeal regarding other reasons why the plenary OP should be reversed.

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¶ 76 F. Hull’s Petition for a Civil No Contact Order (CNCO)

¶ 77 Hull also contends that her petition for a civil no contact order (CNCO) should have been

granted or alternately, that she should be granted a new hearing on her petition.

¶ 78 In deciding whether to grant the CNCO, the issue before the circuit court was whether non-

consensual sexual penetration occurred on March 19, 2021. The issue before this court then is

whether the circuit court correctly found the facts show by a preponderance of the evidence

that Hull was not entitled to a plenary civil no contact order. J.M. v. Briseno, 2011 IL App (1st)

091073, ¶ 39. We review the circuit court’s finding under a manifest weight of the evidence

standard. Id. A finding is against the manifest weight of the evidence only if the opposite

conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on

the evidence presented. Best v. Best, 223 Ill. 2d 342, 350 (2006).

¶ 79 The purpose of the Civil No Contact Order Act (Act) is to provide a civil remedy for

victims of reported sexual assault that are not prosecuted to protect them from future

interactions with the offender. 740 ILCS 22/102 (West 2020). A petition under the Act may be

filed by any person who is a victim of non-consensual sexual conduct or non-consensual

penetration, including a single incident of such conduct. 740 ILCS 22/201(1) (West 2020).

Sexual penetration means any contact, however slight, between the sex organ or anus of one

person by an object, the sex organ, mouth or anus of another person. 740 ILCS 22/103 (West

2020). Evidence of the emission of semen is not required to prove sexual penetration and the

court may not require physical injury to the victim in determining whether to issue a CNCO.

740 ILCS 22/103, 213(a) (West 2020). The Act provides that if the court finds that the

petitioner has been a victim of non-consensual sexual conduct or non-consensual penetration,

a CNCO shall be issued. 740 ILCS 22/213(a)(West 2020).

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¶ 80 The standard of proof in a proceeding under the Act is proof by a preponderance of the

evidence. 740 ILCS 22/204 (West 2020). A preponderance of the evidence means that the

evidence presented renders a fact more likely than not. J.M., 2011 IL App (1st) 091073, ¶ 41

(citing People v. Brown, 229 Ill. 2d 374, 385 (2008)).

¶ 81 Turning to the case at bar, as noted above, Hull’s CNCO petition was filed on January 12,

2022, and raised statutory allegations that McClellan engaged in non-consensual sexual

penetration with her. At the hearing on Hull’s petition, the circuit court found that Hull’s

testimony was full of contradictions and that it was clear from the testimony presented by both

parties that the parties engaged in consensual contact of kissing, removal of Hull’s clothes and

oral sex. The court further found that based on the testimony presented, when Hull pushed

McClellan away during vaginal sex, he stopped, they got dressed and McClellan took Hull

home. The court considered evidence presented by Hull that she did not like McClellan yet

met up with him twice. The court concluded that it did not know what occurred in the car but

found that Hull’s credibility was at issue and it was not clear by a preponderance of the

evidence that non-consensual sex occurred.

¶ 82 We first note that the circuit court incorrectly considered the parties’ consensual conduct

of meeting up, smoking, kissing, removing of clothes and oral sex; this conduct was irrelevant

to consideration of the CNCO petition. The only relevant issue was whether there was non-

consensual sexual contact between the parties. 740 ILCS 22/213(a) (West 2020). The circuit

court’s conclusion that Hull failed to meet her burden by a preponderance of the evidence is

evident on the record before us. While the parties’ testimony was contradictory as to the

specific events that happened in the car, both agreed that there was kissing, oral sex, and

penetrative sex. However, they disagreed about whether the penetrative sex was consensual.

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The circuit court found that Hull was less credible due to contradictions in her testimony. Based

on the record before us, we cannot conclude that the opposite conclusion is clearly evident due

to the contradictory nature of the testimony. We therefore affirm the denial of Hull’s petition

for a CNCO.

¶ 83 CONCLUSION

¶ 84 In conclusion, we find that the circuit court’s grant of the initial EOP to McClellan after an

ex parte hearing was against the manifest weight of the evidence; the grant of the plenary OP

was against the manifest weight of the evidence; and the denial of Hull’s petition for a CNCO

was not against the manifest weight of the evidence. The judgment of the circuit court is

affirmed in part and reversed in part.

¶ 85 Affirmed in part; reversed in part.

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