dissenting:
I respectfully dissent and would affirm the decision of the trial court. The majority opinion fails to address the special rules which apply when the fifth amendment is sought to be exercised in a civil case.
The interests of fundamental fairness and substantial justice outweigh the protections afforded by a privilege where plaintiff seeks to utilize those protections as a sword (rather than a shield) to prevent disclosure of relevant, probative, admissible, and not unduly prejudicial evidence. D.C. v. S.A., 178 Ill. 2d 551, 570, 687 N.E.2d 1032, 1041 (1997) (therapist-recipient relationship). D.C. cited Galante v. Steel City National Bank of Chicago, 66 Ill. App. 3d 476, 481, 384 N.E.2d 57, 61 (1978), where the court noted that a number of jurisdictions have overwhelmingly rejected the contention that a plaintiff in a civil action may invoke the fifth amendment privilege against self-incrimination while still maintaining the lawsuit. See also In re Marriage of Kocher, 282 Ill. App. 3d 655, 659, 668 N.E.2d 651, 654 (1996) (where we refused to allow a party to put in his financial affidavits as evidence when he asserted the fifth amendment in response to questions concerning them). See also In re Marriage of Hartian, 172 Ill. App. 3d 440, 453, 526 N.E.2d 1104, 1113 (1988) (“We find that once Marie filed her [petition for attorney fees] beneficial to herself, she ‘became an actor, a profiteer of the judicial machinery and process’ [citation] ***”).
It is the prevailing rule that the fifth amendment does not forbid adverse inferences against parties in civil actions when they refuse to testify in response to probative evidence offered against them. People v. $1,124,905 U.S. Currency & One 1998 Chevrolet Astro Van, 177 Ill. 2d 314, 332, 685 N.E.2d 1370, 1379 (1997), quoting Baxter v. Palmigiano, 425 U.S. 308, 318, 47 L. Ed. 2d 810, 821, 96 S. Ct. 1551, 1558 (1976); Jacksonville Savings Bank v. Kovack, 326 Ill. App. 3d 1131, 1137, 762 N.E.2d 1138, 1143 (2002) (stay of civil case not appropriate where defendant not charged and merely asserted he was the subject of a criminal investigation).
In the present case, the trial court had the right to ask Christopher whether he had the tapes, and when Christopher invoked the fifth amendment privilege, the trial court had the right to draw the negative inference that Christopher in fact had the tapes. The court was then entitled to take steps to secure the tapes.
The majority relies on Hubbell, 530 U.S. at 36, 147 L. Ed. 2d at 36, 120 S. Ct. at 2043, where an indictment against Webster Hubbell was dismissed because the evidence the government proposed to use against him was derived from the testimonial aspect of Hubbell’s immunized conduct in previously producing subpoenaed documents. The question before us, whether the tapes must be turned over, is not the question addressed in Hubbell. Whether Christopher’s acts in turning over the tapes may be used against him in some future proceeding (the issue in Hubbell) is not an issue in this case.
A case more on point is Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, 107 L. Ed. 2d 992, 110 S. Ct. 900 (1990), where a mother was ordered to produce her missing child and when she refused to do so was found in contempt and imprisoned until she complied with the court order. The Supreme Court rejected the mother’s contention that the contempt order violated her privilege against self-incrimination. “When a person assumes control over items that are the legitimate object of the government’s noncriminal regulatory powers, the ability to invoke the privilege is reduced.” Bouknight, 493 U.S. at 558, 107 L. Ed. 2d at 1002, 110 S. Ct. at 906; see also Sanders v. Shephard, 185 Ill. App. 3d 719, 733, 541 N.E.2d 1150, 1159 (1989) (father found in contempt and imprisoned until he produced child). The child in Bouknight was the particular object of the State’s regulatory interests (Bouknight, 493 U.S. at 559, 107 L. Ed. 2d at 1002-03, 110 S. Ct. at 907).
If there is a prosecution of Christopher for a violation of the eavesdropping statute, and if the prosecution seeks to use the turnover of the tapes or evidence derived therefrom, Christopher may not be without a remedy. “We are not called upon to define the precise limitations that may exist upon the [sjtate’s ability to use the testimonial aspects of Bouknight’s act of production in subsequent criminal proceedings. But we note that imposition of such limitations is not foreclosed.” Bouknight, 493 U.S. at 561, 107 L. Ed. 2d at 1004, 110 S. Ct. at 908. The attractive and apparently practical course of subsequent use restriction is not appropriate where a significant element of the regulatory requirement is to aid law enforcement, but that was not the case in Bouknight. Bouknight, 493 U.S. at 562, 107 L. Ed. 2d at 1004, 110 S. Ct. at 908-09, quoting Marchetti v. United States, 390 U.S. 39, 58-59, 19 L. Ed. 2d 889, 903-04, 88 S. Ct. 697, 708 (1968).
Christopher’s conduct, spying on his wife, is of particular governmental concern. His conduct, stalking, keeping his wife under surveillance, constitutes “harassment” and “domestic violence” under the Illinois Domestic Violence Act of 1986 (750 ILCS 60/103(1), (3), (7) (West 2000)). The legislature has directed that we recognize domestic violence as a serious crime against the individual and society which produces family disharmony in thousands of Illinois families and promotes a pattern of escalating violence which frequently culminates in intrafamily homicide. 750 ILCS 60/102(1) (West 2000). Christopher’s spying on his wife might enable him to determine when she would be alone or in other situations where she would be susceptible to attack. The trial court did not have to tolerate Christopher’s continued possession and use of the tapes. The trial court has the power to direct respondent to promptly make personal property available to petitioner if “sharing it would risk abuse of petitioner by respondent.” 750 ILCS 60/214(b)(10) (West 2000).