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Legal Information: Delaware

Restraining Orders

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Laws current as of
March 26, 2024

What are the steps for getting a sexual violence protective order?

The steps for getting a sexual violence protective order are similar to the steps for getting an order of protection from abuse, but you will fill out different forms.

Your petition for a sexual violence protective order must include the following information:

  1. the act(s) of non-consensual sexual conduct or non-consensual sexual penetration the abuser committed against you, including the date on which it happened; and
  2. the specific things the abuser said or did during or after the non-consensual act which make you afraid that s/he will harm you in the future. If those things happened more than one year before you filed, you must also explain which exception to the time limit applies.1

Note: If you are asking for an emergency order, your petition must also state that the abuser poses an immediate and present danger of causing you physical harm.2

1 10 Del.C. § 7205(a)
2 10 Del.C. § 7204(a)(3)

Is there a time limit for filing?

You must file your petition within one year of the most recent date that the abuser said or did something that made you reasonably fear that s/he will harm you in the future. However, there are a few exceptions that will pause this time period temporarily if they happened after the sexual violence took place. The exceptions are:

  • if the abuser was incarcerated;
  • if the abuser lived more than 100 miles from your home; or
  • if the abuser was under a different no contact order that kept him/her away from you.1

If one of those three things happened, the one year period will be paused for however long the situation went on. For example, if the abuser committed sexual violence on January 1, 2024 and then was incarcerated for 15 days in February 2024, the deadline for filing would be January 15, 2025 instead of December 31, 2024.

1 10 Del.C. § 7203(k)

Will I have to testify in front of the abuser?

It is up to you to prove to the judge that you were the victim of sexual violence. Usually, your testimony about what happened to you will be the most convincing evidence in your case. In general, the abuser has the right to attend the court hearings, cross-examine the witnesses against him/her, and to present his/her own evidence.1 Therefore the abuser will most likely be present when you testify. However, there is an exception - if you are a minor or a vulnerable adult and someone else has filed the petition on your behalf, you may testify without the abuser present.2

1 10 Del.C. § 7205(b)(3)
2 10 Del.C. § 7205(b)(5)

Is there anything that the abuser can’t talk about in court?

If your case goes to trial because the abuser objects to the order being entered, you will most likely have to testify about what happened and be cross-examined by the abuser’s lawyer. However, if the abuser doesn’t have a lawyer, it’s possible that the abuser will be the one to ask the questions on cross-examination. Delaware’s law includes several rules to help prevent a victim of sexual assault from being re-victimized in the courtroom during cross-examination. In most situations, your “sexual reputation” or your prior sexual activity can only be brought up if:

  • it is related to past sexual activity with the abuser; and
  • the abuser is using that past activity as evidence that the non-consensual contact you alleged in your petition was actually consensual.1

In addition, none of the following things can be considered as evidence:

  1. if the abuser was voluntarily intoxicated;
  2. if you were voluntarily intoxicated;
  3. if you consented to limited sexual touching with the abuser; and
  4. if you chose not to report the abuser’s non-consensual acts or his/her threats to law enforcement officials.2

1 10 Del.C. § 7205(6)
2 10 Del.C. § 7205(7)

Do I need a lawyer? Will the court appoint me one?

You do not need a lawyer to file for a protection order. However, you may wish to have a lawyer, especially if the abuser has a lawyer or if your case is going to go to trial.

The judge has the option of appointing a guardian ad litem or an attorney to represent either party in a sexual violence protective order if s/he thinks it is necessary.1   

If you are not appointed a lawyer but you want one to help you with your case, you can find information on legal assistance on the DE Finding a Lawyer page. Domestic violence organizations in your area may also be able to help you through the legal process and may have lawyer referrals.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

1 10 Del.C. § 7203(i)