Illinois is the first state in our country to abolish money bail by passing the Pretrial Fairness Act (PFA). Beginning September 18, 2023, the court will decide whether to detain a person accused of a crime ahead of their trial based on whether they pose a risk to the alleged victim or the community. This reform is a shift away from a wealth-based system that allowed people with money to buy their way out of jail, even if they were a safety threat to others. The PFA corrects this inequity and includes key protections for victims, including survivors of gender-based violence.  

For instance, survivors now have more opportunities to file for protective orders and are entitled to timely notification about each hearing, including the first hearing after a person is arrested. Charges of sexual assault, trafficking, domestic violence, stalking, and violations of protective orders require a 24-to-48-hour detention of an arrested person before they see a judge for a full detention hearing.  

Read on to learn about the new pretrial process for survivors under the Pretrial Fairness Act. As you do, keep in mind that the criminal legal system (like all systems managed by people with biases) is imperfect. Our society upholds many injustices which often overlap with the legal system, too. There are bound to be challenges but we know the Pretrial Fairness Act moves us closer to a better system for all! 

Initial Appearance Hearing 

After a person has been arrested, they will have their first hearing before a judge within two days. This is known as an “initial appearance hearing”. 

Before an initial appearance hearing, the State’s Attorney’s Office is required by the PFA to notify the victim of when and where it will take place. Victims can choose to attend the hearing if they wish. The new law also requires the State’s Attorney’s Office to inform the victim that they can file for protective orders (such as a civil no contact order for sexual assault cases, stalking no contact order, or order of protection for domestic violence cases) on the day of the hearing, and at each subsequent hearing on the case.  

A protective order may be helpful for the survivor because it provides clear instruction from the court for the perpetrator to not contact a survivor and to stay away from a survivor’s home, work, school, or any combination of these places.  

Before their initial appearance hearing, the person being held may meet with an attorney. They may also be evaluated with a risk assessment tool by a pretrial services agency. A risk assessment can help the judge decide to detain or release the person at a future hearing.  

During an initial appearance hearing, the person being held will be read the charges against them. They will also be given a date for a detention hearing. Because of the PFA, a person charged with sexual assault, trafficking, domestic violence, stalking, and violations of protective orders must be held at least 24 to 48 hours before their initial appearance hearing. This gives the State time to notify victims, and victims time to make decisions about attending the hearing and planning for their safety. 

The State is responsible for filing a petition at the initial appearance hearing if they want to ask that the court maintain pretrial detainment for the accused person.  

Detention Hearings  

After an initial appearance hearing, a second hearing known as a “detention hearing” can take place. This is where the State can make the case that the accused person is a risk to a survivor, public safety, or both, and should remain detained pretrial.  

A detention hearing can happen immediately after the initial appearance hearing or, if a continuance is requested and granted, it will be held within 24-48 hours.  

Once again, before a hearing occurs, the State’s Attorney’s Office is required to notify the victim of the time and location of the hearing and their options. Victims can attend, voluntarily testify, and file for protective orders at detention hearings. Survivors can also participate in any interviews to inform risk assessments as part of the pretrial process.   

At a detention hearing, the person being held has the right to an attorney and may testify, call witnesses on their behalf, and question any witnesses that are presented by the State. A judge will decide if the person will remain detained based on an individualized, evidence-informed review of the case and the person being held. Whether the person is detained or released, an appeal can be made by the person held or the State to ask the judge to reconsider the decision.  

At any later hearings, a judge will rule on whether the person will remain detained, be released, or be taken back into custody if they were previously released. Victims have the right to file for a protective order at each court date and will be notified by the State’s Attorney’s Office about the date and location of any further hearings.  

If a judge decides the person should be released, the State’s Attorney’s Office must notify the victim so that they have enough time to plan for their safety.  

Legal Services at CAASE 

A victims’ rights attorney can help a survivor navigate the criminal legal system. Survivors in Cook County, IL who are aged 13+ may be able to receive free legal assistance from CAASE, including consultation, legal advice, and representation. To speak with our team about legal services, please call 773-244-2230, ext. 205, or email legal@caase.org. If CAASE cannot help, we will try to connect you to another attorney and support resources. 

Learn More About the PFA and Survivor Advocacy  

The Pretrial Fairness Act is a critical step toward equity for survivors and a meaningful reform of the criminal legal system. Be sure to follow us @theCAASE on Twitter, Instagram, and Facebook for the latest information about the PFA and CAASE’s advocacy for survivors of sexual harm. You can also read more about the PFA in our past blogs. 

• The Pretrial Fairness Act is a Win for Survivors and Communities 
• Ending Money Bail Benefits Survivors — Here’s How 
• Pretrial Fairness Act Becomes IL Law 

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Pretrial Process Overview for Survivors of Gender-Based Violence

This outline gives a brief look at what happens during each step of the pretrial process for charges involving gender-based violence, such as sexual assault, trafficking, domestic violence, stalking, and violations of protective orders: 

Initial Appearance Hearing

• State’s Attorney’s Office notifies victim of date, time, and location. Victim may choose to attend.
• Accused may meet with attorney and have risk assessment.
• Initial appearance hearing takes place (in gender-based violence cases, this is after 24-48 hours of detainment).
  • Charges read to the accused.
  • State’s Attorney’s Office can petition the court to detain the accused.
  • Victim may request order of protection.
• Detention hearing either held immediately after initial hearing, or if the judges grants a continuance, the detention hearing would be set for a time 24-48 hours after the initial appearance hearing.

Detention Hearing

• State’s Attorney’s Office notifies victim of date, time, and location. They may choose to attend and can also voluntarily testify.
• Victim can participate in interviews to inform risk assessments.
• Detention hearing takes place.
  • State makes a case to detain the person.
  • Victim can choose to testify.
  • Victim may request order of protection.
  • Accused person may testify, call witnesses, and question witnesses presented by the State.
  • Judge makes decision on release or detention.
    • Release: State’s Attorney’s Office notifies the victim and time is given for safety planning.
    • Detention: The accused remains in custody awaiting trial.
• Appeal: the accused person or the State to ask the judge to reconsider the decision.

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CAASE published this piece on September 11, 2023. It was authored by Tayler Mathews with support from Hayley Forrestal and Madeleine Behr. Learn more about our staff here.