Estatutos Seleccionados: Delaware

(a) A petitioner may request a sexual violence protective order by filing an affidavit or verified petition that alleges:

(1) The occurrence, including the date, of non-consensual sexual conduct or non-consensual sexual penetration perpetrated by the respondent against petitioner.

(2) Specific statements or actions made contemporaneously with or subsequent to the sexual conduct or penetration, including the date of the occurrence, which causes the petitioner to have a reasonable fear that the respondent will subject the petitioner to future harm. If these statements or actions occurred more than 1 year before the petition is filed, the petitioner must allege which tolling provisions are applicable.

(b) The following procedures govern a nonemergency proceeding:

(1) The respondent has the right to be heard.

(2) A hearing must be held within 15 days of the filing of a verified petition or affidavit under subsection (a) of this section, unless extended by the Court for good cause shown.

(3) The respondent has the right to notice of the hearing, to present evidence, and to cross-examine adverse witnesses.

(4) The petitioner has the burden of proving by a preponderance of the evidence that:

a. The petitioner was the victim of non-consensual sexual conduct or non-consensual sexual penetration perpetrated by respondent.

b. The respondent made specific statements, or engaged in specified actions contemporaneously with or subsequent to the sexual conduct or penetration which causes the petitioner to have a reasonable fear that respondent will harm petitioner in the future.

(5) If the petition is filed on behalf of a minor child or vulnerable adult, the Court may examine the person on whose behalf the petition is filed outside the presence of the parties for the purpose of obtaining the child’s or vulnerable adult’s testimony and ascertaining the truth of a matter asserted by a party to the proceeding. The Court may permit counsel to be present at the examination, and to also examine the child or vulnerable adult. The Court may permit a party who is not present for the examination to submit questions of fact for the Court to use in ascertaining the testimony of the child or vulnerable adult. The Court shall cause a record of the examination to be made and it shall be made a part of the record in the case.

(6) Petitioner’s prior sexual activity or reputation shall be inadmissible except as evidence related to past sexual activity with respondent if offered as evidence by the respondent that the sexual conduct in issue was consensual, or where rules of evidence otherwise permit admissibility.

(7) The Superior Court must not consider the following evidence in determining whether to grant or deny a petition:

a. The respondent was voluntarily intoxicated when any of the acts alleged occurred.

b. The petitioner was voluntarily intoxicated.

c. The petitioner engaged in limited consensual sexual touching with the respondent.

d. The petitioner did not report respondent’s non-consensual sexual conduct or non-consensual sexual penetration or contemporaneous or subsequent threatening conduct to law-enforcement officials.

(c) If the Court finds by a preponderance of the evidence that the petitioner has been the victim of non-consensual sexual conduct or non-consensual penetration perpetrated by the respondent, and that facts support petitioner’s reasonable fear of future harm, the Court shall issue a sexual violence protective order restraining the respondent from contacting or attempting to contact the petitioner, including by non-physical contact, either directly or indirectly through a third party. The Court may also do any of the following through its order:

(1) Restrain the respondent from the petitioner’s residence, workplace, school, or other institution where the petitioner may be.

(2) Prohibit the respondent from knowingly coming within, or knowingly remaining within, a specified distance and location.

(3) Order the respondent to relinquish to a police officer, or a federally-licensed firearms dealer located in Delaware, the respondent’s firearms and to refrain from purchasing or receiving additional firearms for the duration of the order. Nothing in this section may be construed to impair the rights, under U.S. Const. amend. 2 or § 20 of Article I of the Delaware Constitution, of an individual who is not subject to the Court’s order.

(4) Direct a law-enforcement agency having jurisdiction where the respondent resides, or the firearms or ammunition are located, to immediately search for and seize any firearms or ammunition owned, possessed, or controlled by the respondent.

(5) Order the respondent to undergo a drug, alcohol, or mental health assessment approved by the Sex Offender Management Board.

(6) Grant any other reasonable relief necessary or appropriate for the protection of the petitioner.

(d) If the Court finds that there is not a preponderance of evidence to support the issuance of a sexual violence protective order, the Court shall not issue a sexual violence protective order, and shall vacate any ex parte temporary sexual violence protective order then in effect.

(e) If the Court issues a sexual violence protective order under this section, the Court shall inform the respondent that the respondent is entitled to 1 hearing to request a termination of the order under § 7206 of this title, and shall provide the respondent with a form to request such a hearing.

(f) If a respondent is not present for a hearing under this section, the Court shall direct that any sexual violence protective order issued be served immediately upon the respondent by personal service, any form of mail, or in any manner directed by the Court, including publication if other methods of service have failed or have been deemed to have been inadequate.

(g) The Court shall make a certified copy of the order available to the petitioner and respondent after the hearing and before the petitioner and respondent leave the courthouse.

(h) Any party in interest aggrieved by a decision of the Court under this section may appeal the decision to the Supreme Court.

(i) Relief granted under this section shall be for a fixed period of time not to exceed 3 years.