Criminal Justice

This Act is being proposed in hopes of allowing for additional disbursements from a special fund created by the General Assembly to ensure adequate pensions for affected police officers and firefighters, and their surviving spouses. This raises the pension level an individual is permitted to receive and still be eligible for a distribution from the special fund from $35,000 or less to $55,000 or less. It also ensures that those eligible to receive a distribution from the special fund will be able to do so upon enactment, and not have to wait until the current date permitted under the Code.

This Act does all of the following regarding suspected human trafficking of children: 1. Ensures the sharing of information between the Child Protection Accountability Commission (CPAC) and the Delaware Anti-Trafficking Action Council. 2. Expressly requires a multidisciplinary response to these cases, similar to child deaths and serious physical injury. 3. Even though human trafficking of children is child abuse, specifically delineates it throughout the child abuse multidisciplinary investigative response. 4. Codifies a review panel and oversight committee within CPAC for these cases, with the same authority, subpoena power, and immunities provided to the system that reviews child abuse deaths and near deaths. 5. Establishes that the Office of the Child Advocate will staff the review panel and oversight committee. This Act ensures that Delaware law is consistent with federal law requiring states to consider victims of human trafficking as victims of child abuse and neglect, and requiring the Department of Children, Youth and Their Families to investigate these cases. See the Child Abuse Prevention and Treatment Act (42 U.S.C. 5101 et. seq.) and Justice for Victims of Trafficking Act (Pub. L. 114-22). Finally, this Act makes minor technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

This Act creates a privilege for confidential communications between a victim and a victim advocate. The victim can waive the privilege with a signed waiver. The privilege may also be overcome in certain circumstances, including mandated reporting of child abuse, communications relating to the intent to commit a violent crime, and in state custody and child abuse cases. This Act defines a victim advocate as an employee of a victim services agency, or formal volunteer under the supervision of an employee of a victim services agency who has completed a minimum of 20 hours of advocacy training. This substitute bill incorporates the change from HA1 to House Bill No. 213 regarding the exception for child abuse and state custody cases. It also explicitly excludes law-enforcement agencies and the Department of Justice from the definition of victim services agency. It clarifies that the victim advocate may claim the privilege but only on behalf of the victim. Finally, it adds a process and criteria for a defendant in a criminal case to overcome the privilege in certain circumstances. This is intended to mirror the exception to the therapist-client privilege articulated in Burns v. State, 968 A.2d 1012 (2009).

This Act expands the composition of the Family Justice Center Council by removing a single member that previously represented the health care community including both mental health providers and sexual assault nurse examiners, and instead adding one member representing the mental health care provider community, one member representing the sexual assault nurse examiner community, and one member representing system-based police or prosecution victim service specialists.

This Act provides protections and rights to victims of sexual assault by doing all of the following: • Codifying the core sections of Delaware's Sexual Assault Kit (SAK) testing policy, adopted in May 2022. • Enacts the recommendations of the Victims' Bill of Rights Committee (VBR Committee), established under SCR 99, (152nd General Assembly) providing rights to victims regarding information about the location, status, and preservation of biological evidence. These protections and rights for victims of sexual assault are in addition to existing requirements for DNA analysis performed by the Division of Forensic Science (DFS) laboratory under Chapter 47 of Title 29 and the Victims’ Bill of Rights under Chapter 94 of Title 11. Section 1 revises the definitions in Chapter 47 of Title 29 by transferring definitions from § 4713 of Title 29, updating existing definitions, and creating new defined terms that reflect current practices. Section 2 updates existing requirements under § 4713 of Title 29 that apply when the DFS laboratory receives, analyzes, and classifies biological samples and obtains DNA results, by doing all of the following: • Adding the names of the state and federal DNA databases. • Referencing current law-enforcement procedures, including the names of Delaware’s criminal justice case management systems. • Requiring the Department of Justice, or a law-enforcement agency authorized by the Department of Justice, to inform DFS if the investigation has determined that no crime occurred in the case connected to a biological sample that has been submitted. This enables DFS to comply with NDIS policies and procedures related to when DNA results can be included in the National DNA Index System. • Adding the VBR Committee’s recommendations preventing the destruction of biological samples from unsolved sexual assault cases based on the victim’s age at the time of the alleged offense. For adults, these biological samples may not be destroyed until 20 years after the collection of the evidence and if the victim was under 18 years of age, until the victim is 40 years old. • Adding references to the new SAK-specific provisions under § 4713A of Title 29 and § 9403B of Title 11. Section 3 adds additional requirements that apply when the DFS laboratory conducts DNA analysis of SAKs, codifying Section 5 and Section 7 of the existing SAK testing policy. Section 4 adds definitions related to biological evidence to Chapter 94 of Title 11 for the Victims’ Bill of Rights. Section 5 adds the following to the Victims’ Bill of Rights: • Requirements that apply to investigating law-enforcement agencies, codifying provisions in Section 3 and Section 4 of the existing SAK testing policy. • The VBR Committee’s recommendations regarding victims’ rights to information about the location, status, and preservation of biological evidence, such as learning the status and results of DNA testing. Victims of unsolved sexual assault cases have the right to notice before biological evidence is destroyed, to request that this evidence be preserved, and to designate another person to receive information about the status of biological evidence on their behalf. Section 6 updates how victims receive notifications from law-enforcement agencies that are required under the Victims’ Bill of Rights, to allow for implementation of the victims’ rights to information about biological evidence. All of the following changes were recommended by the VBR Committee and are identical to the language in Senate Bill No. 17 (153rd): • Allowing law-enforcement agencies to send notifications electronically. • Providing that victims are responsible for providing a law-enforcement agency with changes to the victim’s contact information. • Allowing a victim to indicate and change their preferred method of contact by law-enforcement agencies, including a preference not to be contacted, and law-enforcement agencies must use the victim’s preferred method of contact when possible. Sections 7 through 9 revise the definitions of “DNA” and “DNA profile” in Part II of Title 11 for criminal procedure so they align with the definitions in Chapter 47 of Title 29. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

This Act makes the following changes to human trafficking law: (1) It adds “patronizing a victim of sexual servitude” and “ trafficking of persons for use of body parts” to the offenses that may serve as a predicate for forfeiture of property under the trafficking statute. (2) It removes an obsolete reference to charging a minor with delinquency for engaging in prostitution. The Criminal Code was revised in 2019 to define prostitution as a crime that may be committed only by a person who is 18 years of age or older. (3) It adds conduct constituting a human trafficking offense to the list of conduct that constitutes “abuse” for purposes of obtaining a protective order in Family Court.

This Act strengthens essential protections for victims of human trafficking by removing practical barriers that prevent victims from getting convictions or juvenile delinquency adjudications obtained as a result of being a victim of human trafficking vacated and the related criminal or juvenile records expunged. This Act amends § 787 of Title 11 in the following ways: (1) Requires a showing that the offense to be vacated was committed “as a result”, instead of “as a direct result”, of the victims having been trafficked, which recognizes that victims of human trafficking may engage in a range of criminal behaviors related to their exploitation. (2) Provides that a motion to vacate and any hearing or proceeding related to the motion to vacate must remain confidential, unless the court determines good cause exists to open the proceeding, so a victim of human trafficking may seek relief without fear of revictimization. (3) Eliminates the requirement of a mandatory hearing on a motion to vacate unless the Attorney General files a timely objection to the motion. This will allow victims to obtain relief on uncontested motions without needing to relive their trauma through questioning at a formal hearing. (4) Clarifies that the standard of proof for determining eligibility for vacating an adjudication or conviction under § 787(j) is by a preponderance of evidence. (5) Allows a victim to vacate a conviction or adjudication of delinquency under § 787(j) and expunge the records of that conviction or adjudication. Additionally, this Act allows the court to order immediate expungement sua sponte or on request and allows expungements to be ordered by the court deciding the motion to vacate. (6) Establishes guidelines for the Attorney General to request an extension of time, if needed, to respond to a motion to vacate. This Act also aligns the standards for a defense to a charge of prostitution or loitering from “as a direct result” to “as a result” of human trafficking. This matches the change made to the vacatur provisions and keeps the standards in § 787 consistent. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

This Act is a substitute for Senate Bill No. 67. It differs from the original bill by changing the period of time that a criminal history report obtained by the Background Check Center is valid for 1 year, instead of 3 years. The 1-year period of time is now applicable to both applicants of long-term care facilities as well as home-care agencies. This Act also removes the requirement that a current employee of a long-term care facility or home-care agency would need to get another criminal background check if they seek a promotion with their current employer. Because this Act codifies the time frame in which a criminal background check is required, this Act removes the administrative discretion previously provided to the Department of Health and Social Services to determine the frequency in which fingerprints must be obtained.

This Act removes prohibitions in Title 11 of the Delaware Code related to owning or possessing certain types of knives that may be opened by one hand. Such cutting implements are lawfully used as tools by many working in the trades, and are also popular among outdoor, hunting, and camping enthusiasts. Currently, despite common and myriad lawful purposes, such knives are treated as deadly weapons in Delaware, and therefore subject otherwise law-abiding Delawareans engaged in law-abiding activities to criminal prosecution in the justice system. Removing the prohibitions would permit individuals to lawfully use such tools, but would still subject them to prosecution for deadly weapons-related offenses where an individual uses such a knife in the course of an attack or assault aimed at causing death or serious injury.

This Act provides a remedy for convicted persons relating to changes in forensic scientific or technical information. Specifically, a convicted person may apply to the Superior Court for relief if certain forensic scientific information was not available to be offered by the convicted person prior to the conviction or if it undermines forensic scientific evidence that was presented at trial. The court must grant relief if (1) the convicted person files an application asserting that the relevant forensic evidence is currently available and was not ascertainable through the exercise of reasonable diligence by the convicted person before or during trial or before the date of entry of a plea, (2) the application is accompanied by an affidavit from a forensic expert that satisfies certain requirements, and (3) the court determines that, had the evidence been presented at a trial, there is a reasonable likelihood that the result at trial would have been different or that the convicted person would not have been convicted. Once a petition for relief is filed, the Superior Court shall set a hearing on the petition, not later than 180 days after the petition was filed, and notify the petitioner and the Department of Justice. The Department of Justice may file a response to the petition within 90 days after its filing. After the hearing, if the court determines that the petitioner has failed to make a prima facie showing that the petitioner is entitled to relief, the court will dismiss the petition in a written opinion. However, if the court determines that the petitioner has made a prima facie showing that the petitioner is entitled to relief, the court may grant the petitioner discovery on matters relating to the forensic evidence used to obtain the conviction or sentence at issue and hold another hearing to determine whether there is a reasonable likelihood that, had the new evidence been presented at a trial, the convicted person would not have been convicted. If so, the court shall grant such relief as the court deems appropriate, which may include vacating the petitioner's conviction. For purposes of the Act, "convicted person" means a person who has received a verdict of guilty by the trier of fact, entered a plea of guilty or a plea of nolo contendere that was accepted by the court, or received a verdict of not guilty by reason of insanity. Like Senate Substitute No. 1 for Senate Bill No. 58, Senate Substitute No. 3 differs from Senate Bill No. 58 in that (i) it clarifies that relevant forensic scientific evidence that may provide a basis for relief is not limited to evidence presented at trial, but rather includes evidence that was presented before trial, at trial, or before the date of entry of a plea; and (ii) it clarifies that the court must grant relief if the relevant criteria are satisfied. Like Senate Substitute No. 2 for Senate Bill No. 58, Senate Substitute No. 3 differs from Senate Bill No. 58 in the following ways: • It replaces "application" with "petition," in order to maintain consistency in how a petition seeking relief under § 4505 of Title 11 is described. • It gives the court discretion to take certain actions if it finds that a petitioner has made a prima facie showing of the requirements for relief under § 4505 of Title 11. Under Senate Bill No. 58, the court would have been required to take certain actions. • It provides that if a petitioner has established entitlement to relief under § 4505 of Title 11, the court shall grant such relief as it deems appropriate, which may include vacating the petitioner's conviction. Under Senate Bill No. 58, the court would have been required to vacate the petitioner's conviction and grant the petitioner's motion for a new trial. In addition, Senate Substitute No. 3 differs from Senate Bill No. 58 in that it requires the application to be accompanied by an affidavit from a forensic expert and that it permits the Superior Court to hear a claim for relief later than 180 days after the petition if there is good cause for an extension.