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GPS Tracking Law Raises Constitutional Questions

By: Gerri L. Elder

The Cindy Bischof Law was enacted in Illinois during August 2008. The Journal Star reported that under the law, judges are now allowed to order any person considered to be a high risk for domestic violence to wear a GPS tracking device.

Critics of the new law say that mostly men and fathers will be affected by the law and complain that it provides for the presumption of guilt without a fair criminal trial. After all, in the United States the foundation of the criminal justice system is that a defendant is presumed innocent until proven guilty beyond a shadow of a doubt.

The measure may have been more readily accepted if the people ordered to wear the tracking devices had first had fair trials and been convicted of violent or dangerous crimes. Instead, the Cindy Bischof Law allows the tracking devices to be ordered for anyone who is accused of violating an order of protection – no conviction necessary.

Protective orders are very often granted as a precautionary measure during domestic disputes and family court proceedings. Minimal evidence of the potential for violence is required for an order of protection to be issued.s

Orders of protection, also known as restraining orders, became a widely used tool in the 1970s to protect victims of domestic violence. Because orders of protection are so easily obtained, many feel that the rights of people accused of domestic violence are largely abused.

Temporary Restraining Orders and Domestic Violence Claims

According to the U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics, between 2 and 3 million temporary restraining orders are issued in the United States each year. Most of these orders of protection stem from allegations of domestic violence, yet Jeffery M. Leving of points out that research shows that in many cases there is no accusation of actual violence.

In reality, an order of protection can usually be obtained when a claim is made indicating that someone was verbally abusive or acted in a way that frightened the person seeking the order.

In Illinois, a person can yell at their spouse, causing the spouse to apply for and obtain a temporary restraining order. Then, under the new law, if the terms of that order are violated – such as coming to peacefully pick up belongings at the wrong time or without a police escort – he or she can be slapped with an order to wear a GPS.

Restraining orders can also be violated completely by accident. A person wearing a court ordered GPS device can unknowingly be in the same shopping center or general vicinity of the protected person and be arrested for doing so. There is also anecdotal evidence of some people being tricked into violating the restraining orders by their ex-spouse or lovers.

That may seem a bit unfair to the accused, but it gets even worse.

Orders of protection or temporary restraining orders are usually issued without the accused being notified or given a chance to hire a lawyer to defend them. The orders can, and typically are, issued in this ex parte fashion. The hearings to obtain orders of protection are short and sweet and there is little time for any meaningful evidence to be presented.

Under Illinois law, emergency orders of protection are granted for a period of 14 to 21 days, however, a plenary, or full order of protection, can remain in effect for up to two years. That’s a long time for an innocent person to be treated like a criminal.

Constitutional Concerns about the Cindy Bischof Law

The Cindy Bischof Law in Illinois has raised eyebrows in the legal community across the country. There are grave concerns that this law allows for the blatant violation of the basic civil rights that are provided by the United States Constitution.

In a recent article written by two leaders of the State Bar of California’s Family Law Section, it is explained that orders of protection are increasingly used as a tactic to gain leverage in child custody cases. The article goes on to emphasize that restraining orders are easily obtained and almost routine in family law cases, even when the evidence of any possible danger is slim.

The Illinois Bar Journal backs this up by calling temporary restraining orders “part of the gamesmanship of divorce.”

And what a game it is. Unfortunately, the losers will pay the price by wearing GPS devices.