McClellan v. Hull
Citation240 N.E.3d 1160, 2023 IL App (1st) 220465
Date Filed2023-12-22
Docket1-22-0465
Cited5 times
StatusPublished
Full Opinion (html_with_citations)
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 McClellanâs claim of
harassment and requires granting of Hullâs CNCO petition; (2) because the circuit court
acknowledged that it could be true that McClellan sexually assaulted Hull, the court necessarily
erred in finding Hullâs 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 Hullâs free speech; and (8) the circuit court erred in denying Hullâs 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 Hullâs 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
-2-
Nos. 1-22-0465 & 1-22-0755 (cons.)
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 Hullâs 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 courtâs grant of McClellanâs
OPs, we confine our recitation of the background to those relevant facts. We will recite any
additional facts related to the denial of Hullâs 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 âdating or engagement
relationshipâ; McClellan was âfearful of further abuseâ; and, there was a âhistory of abuse.â 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.
-3-
Nos. 1-22-0465 & 1-22-0755 (cons.)
¶9 McClellan included a summary of the incident(s) comprising the abuse as follows:
âOn 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[,] weâve
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 havenât 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 Iâm
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 Iâve been knowing for a full year.â
¶ 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 âcouple of weeks,
-4-
Nos. 1-22-0465 & 1-22-0755 (cons.)
talking as friendsâ 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 Hullâs 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 McClellanâs 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 Stateâs Attorneyâs
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.
-5-
Nos. 1-22-0465 & 1-22-0755 (cons.)
¶ 13 The record does not indicate that Hull was served with McClellanâs petition for an EOP.
The sheriffâs 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. Hullâs 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. Hullâs 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 âpesteredâ 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 Hullâs 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 McClellanâs April 23, 2021, EOP hearing and
therefore did not know or appear in court for the hearing. The motion alleged that McClellanâs
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 carsâ 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.
-6-
Nos. 1-22-0465 & 1-22-0755 (cons.)
following him were Hull or her associates. The motion also attacked McClellanâs petitionâs
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 McClellanâs 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 ârapistâ 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 McClellanâs 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
-7-
Nos. 1-22-0465 & 1-22-0755 (cons.)
in which she averred to the claims made in her motion. Hullâs motion to dismiss was denied
without prejudice on July 9, 2021.
¶ 18 C. Rehearing on McClellanâs 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. McClellanâs 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
-8-
Nos. 1-22-0465 & 1-22-0755 (cons.)
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:
â1. 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]âs exhibits attached hereto as
Exhibit A.
5. The parties stipulate to the authenticity of [Hull]âs 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.â
¶ 25 McClellanâs 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 âbecause of
fear and retaliation.â It should be noted that the tweets named âKeith Brian McClennan.â 3
Exhibit B was a printout of text messages between Hull and âKeith Brian McClennanâ
presumably dating from March 19 and 20, 2021.
¶ 26 3. Hullâs Testimony
3
We will presume that âKeith Brian McClennanâ and McClellan refer to the petitioner.
-9-
Nos. 1-22-0465 & 1-22-0755 (cons.)
¶ 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 motherâs 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 âdifferences in certain things.â
¶ 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 McClellanâs 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 âwas going
to feel his d*ck tonightâ 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
- 10 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
whether Hullâs 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, Hullâs 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:
â[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 couldâve 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 thatâs
between you and god n*gga
[MCCLELLAN] Iâm 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 donât mean you canât keep your d*ck to
yourself
[MCCLELLAN] I
[HULL] I told you several times I wasnât tryna have sex
[MCCLELLAN] K
- 11 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
[HULL] I told you several times no
I told you several times stop
[MCCLELLAN] Now you want talk but couldnât talk lastnight itâs a new day donât do this
***
[HULL] Pain supposed to humanize you! You not supposed to violate people because
youâre hurting! Now wtf you done! For a few moments of getting yo d*ck wet
[MCCLELLAN] Iâm not tho but you show couldnât talk yesterday
What you wanna do
[HULL] I couldnât 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 shouldâve just grabbed the wheel and took both our a** outta here and expedite your
f*cking trip straight to hell
[MCCLELLAN] You ainât crazy
[HULL] B*tch F*CK YOU! Youâre the one who is crazy! Thereâs 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 youâre a** right!
[MCCLELLAN] God Got me..
I ainât worried.â
¶ 30 Hull went on to testify that she did not talk to McClellan after that because she had âno
interest in engaging with a man who sexually assaulted [her]. There would not be any
productive conversation to be had.â 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
- 12 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
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 Courtâs Findings
¶ 33 On December 20, 2021, the circuit court found that McClellanâs 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 âsocial 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.â 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 McClellanâs perspective, the
meetings were an attempt at a relationship, and that Hullâs behavior showed more than a casual
interest in McClellan, but a minimal interest in the person. The court found it unreasonable
- 13 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
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 âattempt to start a dating relationshipâ and that McClellan met his burden
to show that a dating relationship existed although it was at the beginning. The court found
that Hullâs act of sending nude photos to McClellan and the consensual sex acts show the
context of the partiesâ relationship.
¶ 34 With respect to abuse, the court found that Hullâs 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 ârapeâ 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 McClellanâs 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 McClellanâs EOP petition. Hull filed her notice of appeal from the grant of
McClellanâs OP on April 1, 2022 (1-22-0465).
¶ 37 5. Hullâs Petition for a Civil No Contact Order (CNCO)
¶ 38 Hullâs 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.
- 14 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
¶ 39 At the hearing on Hullâs petition, the parties agreed to use the evidence presented during
the OP hearing and both partiesâ counsel presented argument. The circuit court found that
Hullâs 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 Hullâs
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 Hullâs credibility was at issue and it was not clear by a preponderance of the
evidence that non-consensual sex occurred. Hullâs 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 McClellanâs claim of harassment by
defamation and requires the grant of Hullâs CNCO petition; (2) because the circuit court
acknowledged that it could be true that McClellan sexually assaulted Hull, the court necessarily
erred in finding Hullâs 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
- 15 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
unconstitutional prior restraint on Hullâs free speech; and (8) the circuit court erred in denying
Hullâs 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 McClellanâs
favor, and the denial of her petition for a CNCO.
¶ 42 A. Lack of Appellee Brief
¶ 43 On November 30, 2022, this court granted McClellanâs 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 appellantâs
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 courtâs 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 appelleeâs brief, that court should
decide them without the aid of an appelleeâs 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 courtâs
finding that McClellan proved by a preponderance of the evidence that he was abused, we
4
This courtâs order stated that McClellanâs 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, Hullâs counsel indicated that this case had not settled contrary to McClellanâs
assertions in his motion.
- 16 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
conclude that we can easily determine the merits of this appeal without an appelleeâs brief. We
will therefore consider the appeal on the record and appellantâs 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 âconstrued 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
- 17 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
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 abuserâs 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.â 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,
- 18 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
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 petitionerâs place of employment or school;
(ii) repeatedly telephoning petitionerâs 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 petitionerâs windows;
(v) ***
- 19 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
threatening physical force, confinement or restraint on one or more occasions.â 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 respondentâs 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 petitionerâs 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 respondentâs past abuse of the petitioner and the likelihood of danger of
future abuse. 750 ILCS 60/214(c)(1)(i) (West 2020). The courtâs 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).
- 20 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
¶ 54 When issuing an ex parte EOP, the court can alternatively use the following procedure:
â[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].â 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 Hullâs challenge to the circuit courtâs 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 McClellanâs motion in July
2021.
¶ 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
- 21 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
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 Hullâs 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
âparticularly critical that courts be informed of the standards for the granting of emergency
orders,â we find that the second criterion is met as well. Id. Accordingly, we will review the
circuit courtâs 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, â[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 âprohibition of abuseâ described in Section 214(b)(1), âstay
away order and additional prohibitionsâ described in Section 214(b)(3), * * * the harm
which that remedy is intended to prevent would be likely to occur if the respondent
- 22 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
were given any prior notice, or greater notice than was actually given, of the petitionerâs
efforts to obtain judicial relief;
(ii) For the remedy of âgrant of exclusive possession of residenceâ 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 petitionerâs 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 âpossession of personal propertyâ 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 petitionerâs efforts to obtain judicial relief, or if the petitioner has an immediate
and pressing need for possession of that property.â 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.
- 23 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
¶ 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 â[w]hen a verified petition for an [EOP] in accordance with the
requirements of Sections 203 and 217 is presented to the courtâ 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 âif 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].â Id.
¶ 63 We review the circuit courtâs 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 McClellanâs testimony at the ex parte
hearing on his petition, we find that the circuit courtâs 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 McClellanâs 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 McClellanâs 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
- 24 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
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 âdating and talking as friends,â 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 partiesâ relationship status.
¶ 65 The Domestic Violence Act added the phrase âdating relationshipâ 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 âdating relationshipâ
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 partiesâ 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 âserious
- 25 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
courtshipâ 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.
McClellanâs petition and his testimony at the initial ex parte EOP hearing that he was âdatingâ
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 âdateâ 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 âdatingâ has come to be a catch-all. https://zoosk.com/date-mis/single-
- 26 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
life/dating-meaning-definition-of-dating/. Dating today is most commonly defined as âa stage
of romantic relationships in which two individuals engage in an activity together, most often
with the intent of evaluating each otherâs suitability as a partner in future intimate relationship.â
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 âdating relationshipâ not to include
casual or potential relationships based on the precedent in this State.
¶ 68 Although we have determined that McClellanâs 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 âunknownâ cars following him and
âunknownâ 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.
- 27 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
¶ 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 McClellanâs 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 petitionerâs burden to prove the statutory requirements by a
preponderance of the evidence. Sanchez v. Torres, 2016 IL App (1st) 151189, ¶ 20. The circuit
courtâs determination as to whether the petitioner has met that burden will not be disturbed
- 28 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
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 âintendedâ
to have a dating relationship with Hull, despite the circuit courtâs finding that McClellanâs
testimony supported standing for a dating relationship. Nor do we agree with the courtâs
finding that the âattemptâ to start a dating relationship was equal to the existence of a dating
relationship between the parties. We also take issue with the circuit courtâs 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 âintentâ 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 McClellanâs
petition for an EOP without the requisite familial relationship was compounded by the circuit
courtâs 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.
- 29 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
¶ 76 F. Hullâs 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 courtâs 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).
- 30 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
¶ 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, Hullâs 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 Hullâs petition, the circuit court found that Hullâs
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 Hullâs 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 Hullâs 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 partiesâ 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
courtâs conclusion that Hull failed to meet her burden by a preponderance of the evidence is
evident on the record before us. While the partiesâ 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.
- 31 -
Nos. 1-22-0465 & 1-22-0755 (cons.)
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 Hullâs petition
for a CNCO.
¶ 83 CONCLUSION
¶ 84 In conclusion, we find that the circuit courtâs 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 Hullâs 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.
- 32 -