Illinois has joined a growing contingent of states to adopt a law that will put electronic GPS tracking bracelets on men who have not been convicted of any crime, but might be involved in a messy divorce.
The plan, named in memory of Cindy Bischoff, who was attacked and murdered by a former boyfriend, was signed into law just days ago and is scheduled to take effect Jan. 1.
And while its goal of protecting women and children from out-of-control husbands and fathers is good, it goes too far and violates the civil rights of innocent fathers, according to a lawyer for a group that will challenge it.
“Electronic tagging devices can be appropriate as a condition of parole or probation,” said
attorney Jeffery M. Leving, who is a nationally known fathers’ rights advocate, the author of “Fathers’ Rights” and “Divorce Wars” and founder of DadsRights.com. “The Cindy Bischof Law goes far beyond this, placing long-term electronic tags on men who have never been found guilty of any crime.”
According to a website set up in memory of Cindy Bischoff, there are about a dozen states, including Washington, Minnesota, Utah, Colorado, Michigan, Oklahoma, Louisiana, Florida and Massachusetts, that now have similar provisions. The campaign’s goal is to prevent what happened to Bischof from happening to others.
But Leving said there are major constitutional issues that need to be resolved.
“The law carries a presumption of guilt,” Leving said, “without the benefit of a trial, yet the foundation of our entire criminal justice system is based on a defendant being presumed innocent until proven guilty.”
He said such restraining orders are not unusual.
A recent article by two leaders of the State Bar of California’s Family Law Section said such orders “are increasingly being used in family law cases to help one side jockey for an advantage in child custody.” And the Illinois Bar Journal has described them as part of the “gamesmanship” of divorce.
But Leving said the full impact of Illinois’ new law is that judges can order anyone – mostly men and fathers – to wear a GPS tracking device if they simply are accused of violating an order of protection, with no court conviction or adjudication required.
In fact, he said, “such orders are generally done ex parte, without the accused’s knowledge and with no opportunity afforded for him to defend himself.”
Such lack of information for the men can result in unknowing violations, Leving said.
“A man can accidentally be in the same park or mall as his ex-wife/girlfriend, and the electronic monitoring device could lead to his arrest even if he never actually saw her. Some men have even been tricked into violating the orders by former spouses. The device will make this easier-a woman could call her estranged husband, tell him she needs him to come to her house because of a crisis with their children, and then have an electronic record of his violation,” he said.
“Perhaps such a drastic measure would be warranted if the men forced to wear the devices had meaningful and fair trials, and were found to be guilty of violent or dangerous crimes. However, the Bischof Law empowers judges with the ability to mandate the GPS tracking device on anyone who is accused of violating an order of protection,” he said.
“Unfortunately, the rush to protect the abused is so incredibly aggressive that the rights of the accused have been violated,” Leving said. “I don’t see any safeguard in this law. This law basically presumes in these situations [men] are guilty.”
He said his organization will work with lawmakers to make them aware of the potential pitfalls of their new law and will watch cases as they develop to pursue a court challenge to its constitutionality.