Legal Information: Delaware

Statutes: Delaware

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Updated: 
September 13, 2023

§ 7204. Emergency proceedings

(a) A petitioner may request an ex parte temporary sexual violence protective order by filing an affidavit or verified petition which alleges all of the following:

(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.

(3) The respondent poses an immediate and present danger of causing physical injury to petitioner.

(b) The following procedures govern an emergency proceeding:

(1) The Court must hear a request for an ex parte temporary order under this section within 72 hours of the filing of the affidavit or verified petition.

(2) The petitioner has the burden of demonstrating by a preponderance of the evidence that:

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

b. Specific statements or actions by the respondent made contemporaneously or subsequent to engaging in non-consensual sexual conduct or penetration causes the petitioner to have a reasonable fear that respondent will harm petitioner in the future.

c. The respondent poses an immediate and present danger of causing physical injury to the petitioner.

(3) The respondent does not have the right to be heard or to notice that the petitioner has sought an ex parte temporary order.

(c) The Superior Court shall issue an ex parte temporary sexual violence protective order if the Court finds by a preponderance of the evidence all of the following:

(1) The petitioner has been the victim of non-consensual sexual conduct or non-consensual penetration perpetrated by the respondent.

(2) Facts support petitioner’s reasonable fear of future harm.

(3) The respondent poses an immediate and present danger of causing physical injury to the petitioner.

(d) The ex parte temporary order shall restrain 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 temporarily 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.

(e) The Court shall direct that an ex parte temporary1 order issued under this section 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 be inadequate. The Court shall give a certified copy of the order to the petitioner after the hearing and before the petitioner leaves the courthouse.

(f) If an ex parte temporary sexual violence protective order is issued, the Court must hold a full hearing in compliance with § 7205 of this title within 15 days. The Court may extend an ex parte temporary order as needed to effectuate service of the order, or where necessary to ensure the protection of the petitioner, but the duration of the ex parte temporary order may not exceed 45 days.

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