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Legal Information: Delaware

Restraining Orders

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Laws current as of
March 26, 2024

What is the legal definition of sexual violence in Delaware?

In Delaware, for the purpose of getting a sexual violence protective order, “sexual violence” is one or more act(s) of “non-consensual sexual conduct” or “non-consensual sexual penetration.”1

Non-consensual” means that you did not freely agree (consent) to the sexual conduct or penetration. If you “agreed” to the sexual contact because you were being threatened with physical harm, for example, that would not be a situation in which you “freely agreed” to the contact. You also cannot consent if you are unconscious, asleep, or otherwise unaware of the sexual act being performed.2

Sexual conduct is when the abuser:

  • intentionally touches or fondles your genitals, anus, or breasts, including through clothing;
  • intentionally displays his/her genitals, anus, or breasts for the purposes of his/her arousal or sexual gratification;
  • intentionally forces you to touch another person’s genitals, anus, or breasts, including through clothing;
  • forces the display of your genitals, anus, or breasts for the purpose of arousal or sexual gratification;
  • for the purposes of sexual gratification or arousal, intentionally touches the body, clothed or unclothed, of a child; or
  • forces a child to touch or fondle, including through clothing, the genitals, anus, or breasts of the abuser or another person.3

In Delaware, a child who has not yet turned 12 cannot consent to a sexual act under any circumstances. A child who has not yet turned 16 cannot consent to a sexual act with a person who is more than four years older.4

Sexual penetration is:

  • 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; or
  • any intrusion, however slight, of any object or any part of the body of one person into the sex organ or anus of another person, including oral sex or anal penetration.5

Note: There does not have to be semen found to prove sexual penetration.5

1 10 Del.C. § 7203(b)(1)
2 10 Del.C. § 7202(3); 11 Del.C. § 761(k)
3 10 Del.C. § 7202(8)
4 11 Del.C. § 761(l)
10 Del.C. § 7202(9)

What types of sexual violence protective orders are available? How long do they last?

There are two types of sexual violence protective orders: emergency sexual violence protective orders and nonemergency sexual violence protective orders.

Emergency sexual violence protective orders:  An emergency order is issued “ex parte.” Ex parte means that the abuser is not notified beforehand and is not present at the hearing. If you ask for an emergency order, the court must hold the ex parte hearing within 72 hours of the time you file your case. A Superior Court judge or commissioner can issue an emergency sexual violence protective order if s/he finds that all of the following things are true:

  1. you have been a victim of non-consensual sexual conduct or non-consensual penetration;
  2. the abuser has said or done specific things during or after the non-consensual sexual conduct, which cause you to reasonably fear that s/he will harm you in the future; and
  3. there is an immediate and present danger that that the abuser will cause you physical harm.

If the court issues an emergency order, there must be a full hearing in Superior Court within 15 days. Emergency orders can be extended until the abuser can be served, but emergency sexual violence protective orders can only last for up to 45 days.2

Nonemergency sexual violence protective orders: A Superior Court judge or commissioner can issue a nonemergency sexual violence protective order after the abuser has notice of the case and the opportunity to participate in a court hearing. To issue an order, the judge or commissioner must believe that numbers 1 and 2, listed above, are true.3

Nonemergency orders can last for up to three years4 but you can request to renew a nonemergency order before it expires. See Can I renew a sexual violence protective order? for more information.

Note: The abuser can request a hearing to end a nonemergency sexual violence protective order once within the three-year period that the order is effective.5 

1 10 Del.C. § 7204(b)
2 10 Del.C. § 7204(f)
3 10 Del.C. § 7205(b)(4)
4 10 Del.C. § 7205(i)
5 10 Del.C. § 7206(a)

What protections can I get in a sexual violence protective order?

In an emergency or nonemergency sexual violence protective order, the court may order the abuser to:

  • not contact you - directly, indirectly, or through a third party;
  • stay away from your home, your workplace, your school, or any other place you go to;
  • not come within a specified distance of you;
  • turn in his/her firearms to the police or a licensed firearms dealer in Delaware, and not purchase or receive any other firearms while the order is in effect;
  • undergo a drug, alcohol, or mental health assessment; and
  • grant any other relief reasonably necessary for your protection.1

The court can also order law enforcement to search for and take (seize) any firearms or ammunition owned or controlled by the abuser.1 If you think that you will be in more danger if the abuser learns your location, you can ask the court not to reveal your current address or place of residence.2

Note: The court cannot order the abuser to pay you money damages in a sexual violence protective order.3 For more information on how to try to get financial compensation in court, go to our Suing an Abuser page.

1 10 Del.C. §§ 7204(d); 7205(c)
2 10 Del.C. § 7203(c)
3 10 Del.C. § 7203(l)

Where can I file for a sexual violence protective order?

You can file in the county you live in, the county the abuser lives in, or the county where the sexual violence took place.1

1 10 Del.C. § 7203(a)

If the abuser lives in a different state can I still get an order against him/her?

When you and the abuser live in different states, the judge in your state may not have legal power (personal jurisdiction) over an out-of-state abuser. This means that the judge may not be able to grant an order against him/her.

However, there are a few ways that a judge can get personal jurisdiction over an out-of-state abuser:

  1. The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, to see extended family, or for business, or the abuser lived in your state and recently fled.
  2. One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you but s/he has since left the state.
  3. If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.

Even if none of the above apply to your situation, you may still be able to get an order. If you file, the abuser may agree to an order “on consent” or the judge may decide there are other reasons to grant the order.

You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.

Note: If the judge in your state refuses to give you an order, you can file in the courthouse in the abuser’s state. However, you will likely need to file the petition in person and attend various court dates. This could be difficult if the abuser’s state is far away.