HB 218

                SPONSOR:
                Rep. Chukwuocha & Rep. Griffith & Sen. Poore
                Reps. Morrison, Romer, Harris; Sen. Wilson
        HOUSE OF REPRESENTATIVES
        153rd GENERAL ASSEMBLY
        HOUSE SUBSTITUTE NO. 2
        FOR
        HOUSE BILL NO. 218
        AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO INTERPERSONAL AND SEXUAL VIOLENCE IN THE MILITARY.
        BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
        Section 1. Amend § 1041, Title 10 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:
        § 1041. Definitions
        .
        The following terms shall have the following meanings:
        (4) “Military protective order” means a protection order issued pursuant to 10 U.S.C. § 1567, as amended, by a commanding officer in the armed forces of the United States, the Delaware National Guard, or the National Guard of any other state against a person under the officer’s command.
        Section 2. Amend § 1043, Title 10 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
        § 1043. Ex parte orders and emergency hearings.
        (a) A petitioner may request an emergency protective order by filing an affidavit or verified pleading alleging that there is an immediate and present danger of domestic violence to the petitioner or to a minor child of the petitioner or to an adult who is impaired.
        (b) An emergency protective order may be issued on an ex parte basis, that is, without notice to the respondent, where the petitioner certifies in writing the efforts, if any, which have been made to give notice to the respondent or the reasons supporting the claim that notice should not be required.
        (c) An emergency hearing held on an ex parte basis shall be held the same day that the petition is filed or the next day that the Court is in session. All other emergency hearings shall be scheduled for an expedited hearing within 15 calendar days after the petition is filed.
        (d) In any case in which an ex parte protective order has been issued, a full hearing shall be held within 15 days. The Court may extend an ex parte order as needed, but not to exceed 30 days, to effectuate service of the order or where necessary to continue protection.
        (e) If the Court finds by a preponderance of the evidence that the alleged domestic violence has occurred, or if the respondent consents to entry of a protective order, the Court shall grant any appropriate relief, including,
        but not limited to, 
        the relief set forth in § 1045 of this title.
        (f) In those cases where the respondent is not present for the hearing, or where the hearing is held ex parte, any protective order issued shall be served immediately upon the respondent, in accordance with § 1065 of this title. A certified copy of the order shall also be given to the petitioner after the hearing, before leaving the courthouse. If the order recites that the respondent appeared in person before the Court, the necessity for further service is waived and proof of service of the order is not necessary; in those cases, the respondent shall be given a copy of the order before leaving the courthouse.
        (g) Evidence of an existing military protective order against the respondent must be considered as a factor in favor of granting the emergency protective order.
        Section 3. Amend § 1046, Title 10 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
        § 1046. Enforcement; sanctions for violation of order.
        (c)
        (1)
        A law-enforcement officer shall arrest, with or without a warrant, any individual whom the officer has probable cause to believe has violated a protective order issued under this part or a valid foreign protection order under Part E of this subchapter and who has notice or knowledge of the protective order. Presentation of a protective order that identifies both the protected person and the respondent and, on its face, is currently in effect constitutes probable cause to believe that a protective order exists. The protective order may be either in tangible form or stored in DELJIS or other electronic medium if it is retrievable in perceivable form. Probable cause for arrest may be established by a good faith reliance on information contained in DELJIS. If a protective order is not presented, the law-enforcement officer may consider other information in determining whether there is probable cause to believe that a protective order exists.
        (2) If a law-enforcement officer has probable cause to believe that an individual described in paragraph (c)(1) of this subsection is a service member in violation of a military protective order registered in the Federal Bureau of Investigation’s National Crime Information Center database, the law-enforcement officer shall notify the agency that entered the military protective order into the database that the service member may have violated the military protective order.
        Section 4. Amend § 7202, Title 10 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:
        § 7202. Definitions.
        As used in this chapter:
        (5) “Military protective order” means a protection order issued pursuant to 10 U.S.C. § 1567, as amended, by a commanding officer in the armed forces of the United State, the Delaware National Guard, or the National Guard of any other state against a person under such officer’s command.
        Section 5. Amend § 7204, Title 10 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
        § 7204. Emergency proceedings.
        (
        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.
        (4) Evidence of an existing military protective order against the respondent must be considered as a factor in favor of granting the ex parte temporary sexual violence protective order.
        Section 6. This Act takes effect on January 1, 2027.
        SYNOPSIS
        This Act requires that the court consider the existence of a military protective order as a factor in favor of granting an emergency protective order or a temporary sexual violence protective order. It further requires that a law-enforcement officer notify the agency that entered a military protective order against an individual, if the law-enforcement officer has probable cause to believe that the individual violated the military protective order.