Delaware -- Age of Consent
Added 03-2002:
To Whom It May Concern,
I visited your website for the first time yesterday, only to find out that I am not old
enough to date my boyfriend anymore. I am 15 , yet a very old soul. I have been through so
much in my life and the only good thing about it happens to be my 19 year old boyfriend.
His mother and family assumed I was older but, she found out my age yesterday and told my
boyfriend that he could go to jail over me. I love him more than anyone could ever imagine
and he feels the same about me. Unfortunately, he has decided to stop seeing me because of
the risk that he is taking. I will be 16 in December and he will be 20 in January. Is
there any way around this law in Delaware? Please contact me back, I feel like I cant go
on without him in my life.
Delaware is not an easy state to search. So far I have been unable to locate the statutes on line. This is the most I have located and I do not know if the law was passed.
[EDITOR NOTE: 11/8/99 - One astute surfer found the online laws for us. Thank you.
§ 761. Definitions generally applicable to sexual offenses.
Going to http://www.state.de.us/research/assembly.htm
and taking the Legislative Library link http://www.state.de.us/research/library/library.htm
to the Code of Laws link http://www.state.de.us/research/dor/code.htm gets you a note that you
can get the code at Lexis http://www.lexislawpublishing.com/resources/ where you can find
Delaware laws "current as of the 1998 regular session". This "Delaware Code
Unannotated" lets you reach Title 11, "Crimes and Criminal Procedure",
then Chapter 5,"Specific Offenses".
(a) "Cunnilingus" means any oral contact with the female genitalia.
(b) "Fellatio" means any oral contact with the male genitalia.
(c) "Object" means any item, device, instrument, substance or any part of the
body. It does not
mean a medical instrument used by a licensed medical doctor or nurse for the purpose of
diagnosis
or treatment.
(d) "Sexual offense" means any offense defined by §§ 761-775 and §§
1108-1112A of this title.
(e) "Sexual intercourse" means:
(1) Any act of physical union of the genitalia or anus of 1 person with the mouth, anus or
genitalia of
another person. It occurs upon any penetration, however slight. Ejaculation is not
required. This
offense encompasses the crimes commonly known as rape and sodomy; or
(2) Any act of cunnilingus or fellatio regardless of whether penetration occurs.
Ejaculation is not
required.
(f) "Sexual contact" means any intentional touching of the anus, breast,
buttocks or genitalia of
another person, which touching, under the circumstances as viewed by a reasonable person,
is
sexual in nature. Sexual contact shall also include touching of those specified areas when
covered by
clothing.
(g) "Sexual penetration" means:
(1) The unlawful placement of an object, as defined in subsection (c) of this section,
inside the anus
or vagina of another person; or
(2) The unlawful placement of the genitalia or any sexual device inside the mouth of
another person.
(h) "Without consent" means:
(1) The defendant compelled the victim to submit by any act of coercion as defined in §§
791 and
792 of this title, or by force, by gesture, or by threat of death, physical injury, pain
or kidnapping to be inflicted upon the victim or a third party, or by any other means
which would compel a reasonable person under the circumstances to submit. It is not
required that the victim resist such force or threat to the utmost, or to resist if
resistance would be futile or foolhardy, but the victim need resist only to the extent
that it is reasonably necessary to make the victim's refusal to consent known to the
defendant; or
(2) The defendant knew that the victim was unconscious, asleep or otherwise unaware that a
sexual
act was being performed; or
(3) The defendant knew that the victim suffered from a mental illness or mental defect
which
rendered the victim incapable of appraising the nature of the sexual conduct; or
(4) Where the defendant is a health professional, as defined herein, or a minister,
priest, rabbi or
other member of a religious organization engaged in pastoral counseling, the commission of
acts of
sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to
be
without consent of the victim where such acts are committed under the guise of providing
professional diagnosis, counseling or treatment and where at the times of such acts the
victim
reasonably believed the acts were for medically or professionally appropriate diagnosis,
counseling
or treatment, such that resistance by the victim could not reasonably have been
manifested. For
purposes of this paragraph, "health professional" includes all individuals who
are licensed or who
hold themselves out to be licensed or who otherwise provide professional physical or
mental health
services, diagnosis, treatment or counseling and shall include, but not be limited to,
doctors of
medicine and osteopathy, dentists, nurses, physical therapists, chiropractors,
psychologists, social
workers, medical technicians, mental health counselors, substance abuse counselors,
marriage and
family counselors or therapists and hypnotherapists; or
(5) The defendant had substantially impaired the victim's power to appraise or control the
victim's
own conduct by administering or employing without the other person's knowledge or against
the
other person's will, drugs, intoxicants or other means for the purpose of preventing
resistance.
(i) "Position of trust, authority or supervision over a child" includes, but is
not limited to:
(1) Familial or custodial authority or supervision; or
(2) A teacher, instructor, coach, babysitter, day care provider, or aide or any other
person having
regular direct contact with children through affiliation with a school, church or
religious institution,
athletic or charitable organization or any other organization, whether such a person is
compensated
or acting as a volunteer.
(j) A child who has not yet reached his or her sixteenth birthday is deemed unable
to consent to a sexual act with a person more than 4 years older than said child. Children
who have not yet reached their twelfth birthday are deemed unable to consent to a sexual
act under any circumstances.
§ 762. Provisions generally applicable to sexual offenses.
(a) Mistake as to age. Whenever in the definition of a sexual offense, the
criminality of conduct
depends on whether the person has reached his or her sixteenth birthday, it is no defense
that the
actor did not know the person's age, or that the actor reasonably believed that the person
had
reached his or her sixteenth birthday.
(b) Gender. Unless a contrary meaning is clearly required, the male pronoun shall be
deemed to
refer to both male and female.
(c) Separate acts of sexual contact, penetration and sexual intercourse. Nothing in this
title
precludes a defendant from being charged with separate offenses when multiple acts of
sexual
contact, penetration or intercourse are committed against the same victim.
(d) Teenage defendant. As to sexual offenses in which the victim's age is an element of
the offense
because the victim has not yet reached his or her sixteenth birthday, where the person
committing the
sexual act is no more than 4 years older than the victim, it is an affirmative defense
that the victim
consented to the act "knowingly" as defined in § 231 of this title. Sexual
conduct pursuant to this
section will not be a crime. This affirmative defense will not apply if the victim had not
yet reached his or her twelfth birthday at the time of the act.
§ 770. Rape in the fourth degree; class C felony.
(a) A person is guilty of rape in the fourth degree when the person:
(1) Intentionally engages in sexual intercourse with another
person, and the victim has not yet
reached his or her sixteenth birthday; or
[EDITOR NOTE: We highlighted this in red as it is
highly unusual!]
(2) Intentionally engages in sexual intercourse with
another person, and the victim has not yet reached his or her eighteenth birthday, and the
person is 30 years of age or older, except that such intercourse shall not be unlawful
if the victim and person are married at the time of such intercourse; or
(3) Intentionally engages in sexual penetration with another person under any of the
following
circumstances:
a. The sexual penetration occurs without the victim's consent; or
b. The victim has not reached his or her sixteenth birthday; or
(4) Intentionally engages in sexual intercourse or sexual penetration with another person,
and the
victim has reached his or her sixteenth birthday but has not yet reached his or her
eighteenth birthday
and the defendant stands in a position of trust, authority or supervision over the child,
or is an invitee
or designee of a person who stands in a position of trust, authority or supervision over
the child.
§ 774, 775. Unlawful sexual intercourse in the second degree; class B
felony; unlawful
sexual intercourse in the first degree; class A felony.
Repealed by 71 Del. Laws, c. 285, §§ 12 and 13, eff. Sept. 9, 1998.
[EDITOR NOTE: We assume this was repeated when the rape law was strengthened]
And since we receive these questions as well:
§ 777. Bestiality.
A person is guilty of bestiality when the person intentionally engages in any sexual act
involving sexual contact, penetration or intercourse with the genitalia of an animal or
intentionally causes another person to engage in any such sexual act with an animal for
purposes of sexual gratification.
Bestiality is a class D felony. (69 Del. Laws, c. 91, § 1; 70 Del. Laws, c. 186, § 1.)
This bill was introduced 6/17/98.
STATUS OF BILL:
http://www.state.de.us/cgi-bin/fetch.cgi/govern/agencies/legis/lis/139/
SPONSOR: Sen. Bonini
DELAWARE STATE SENATE
139TH GENERAL ASSEMBLY
SENATE BILL NO. __399__
AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO THE AGE OF CONSENT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend §761(j), §762(a), §762(d), §770(a), §771(a), §772(a) and § 773(a), Title 11, Delaware Code by deleting "sixteenth" as it appears each time therein, and by inserting in lieu thereof each time "eighteenth".
Section 2. Amend §773(c), Title 11, Delaware Code by deleting "16th" as it
appears therein and by inserting in lieu thereof "18th".
Section 3. Amend §770(a), Title 11, Delaware Code by deleting paragraphs (2) and (4) thereof in their entirety, by renumbering paragraph (3) thereof as (2) and by deleting "; or" at the end of newly redesignated paragraph (2) thereof and inserting in lieu thereof ".".
Section 4. Amend §762, Title 11, Delaware Code by adding thereto as follows:
"(e) Married couples - Sexual acts which would only be sexual offenses due to the age
of the victim shall not be unlawful if the victim was married to the perpetrator at the
time of such sexual acts."
SYNOPSIS
This Bill raises the age of consent from 16 to 18, deletes
the 2 existing provisions which included 16 and 17 years olds (since all provisions
now apply to 16 and 17 year olds), and creates a general marriage waiver (if the couple is
married there is no "statutory rape").
Author: Sen. Bonini
----------------------------------------------------------------------------------------------
Unlawful Sexual Contact in the First Degree - Section 769 (a) A person is
guilty of unlawful sexual contact in the first degree when, in the course of committing
unlawful sexual contact in the third degree or in the course of committing unlawful sexual
contact in the second degree, or during the immediate flight from the crime, or during an
attempt to prevent the reporting of the crime, the person causes physical injury to the
victim or the person displays what appears to be a deadly weapon or dangerous instrument.
(b) Unlawful sexual contact in the first degree is a class F felony.
Unlawful Sexual Contact in the Second Degree - Section 768 (a) A person is guilty of
unlawful sexual contact in the second degree when the person intentionally has sexual
contact with another person who is less than 16 years of age or causes the victim to have
sexual contact with the person or a third person.
(b) Unlawful sexual contact in the second degree is a class G felony.
Unlawful Sexual Contact in the Third Degree - Section 767 (a) A person is guilty of
unlawful sexual contact in the third degree when the person has sexual contact with
another person or causes the victim to have sexual contact with the person or a third
person and the person knows that the contact is either offensive to the victim or occurs
without the victim's consent.
(b) Unlawful sexual contact in the third degree is a class A misdemeanor.
Unlawful Sexual Penetration in the First Degree - Section 772 (a) A person is guilty of an
unlawful sexual penetration in the first degree when the person intentionally places 1 or
more fingers or thumbs or an object, as defined by 761(c) of this title, inside the vagina
or anus of a person under any of the following circumstances:
The sexual penetration occurs without the victim's consent and during the commission of
the crime, or during the immediate flight from the crime, or during an attempt to prevent
the reporting of the crime, the person causes serious physical injury to the victim; or
The victim is less than 16 years old and during the commission of the crime, or during the
immediate flight from the crime, or during an attempt to prevent the reporting of the
crime, the person causes serious physical injury to the victim; or
The sexual pernetration occurs without the victim's consent during the commission of the
crime, or during the immediate flight from the crime, or during an attempt to prevent the
reporting of the crime, the person displays what appears to be a deadly weapon or
dangerous instrument; or
The victim is less than 16 years old and during the commission of the crime, or during the
immediate flight from the crime, or during an attempt to prevent the reporting of the
crime, the person displays what appears to be a deadly weapon or a dangerous instrument.
(b) This section does not apply to a licensed doctor or nurse who places 1 or more fingers
or an object inside the vagina or anus for the purpose of diagnosis or treatment. Nothing
contained in this section shall preclude a separate charge, conviction and sentence for
possession of a deadly weapon during the commission of a felony.
(c) Unlawful sexual penetration in the first degree is a class C felony.
Unlawful Sexual Penetration in the Second Degree - Section 771 (a) A person is guilty of
unlawful sexual penetration in the second degree when a person intentionally places 1 or
more fingers or thumbs or an object, as defined by 761(c) of this title, inside the vagina
or anus of a person under any of the following circumstances:
The sexual penetration occurs without the victim's consent and during the commission of
the crime, or during the immediate flight from the crime, or during an attempt to prevent
the reporting of the crime, the person causes physical injury to the victim; or
The victim is less than 16 years old and during the commission of the crime, or during the
immediate flight from the crime, or during an attempt to prevent the reporting of the
crime, the person causes physical injury to the victim.
(b) This section does not apply to a licensed medical doctor or nurse who places 1 or more
fingers or an object inside a vagina or anus for the purpose of diagnosis or treatment.
(c) Unlawful sexual penetration in the second degree is a class D felony
Unlawful Sexual Penetration in the Third Degree - Section 770 (a) A person is guilty of
unlawful sexual penetration in the third degree when the person intentionally places 1 or
more fingers or thumbs or an object, as defined by 761(c) of this title, inside the vagina
or anus of a person under any of the following circumstances:
The sexual penetration occurs without the victim's consent; or
The victim is less than 16 years old.
(b) This law does not apply to a licensed medical doctor or nurse who places 1 or more
fingers or an object inside a vagina or anus for the purpose of diagnosis or treatment.
(c) Unlawful sexual penetration in the third dense is a class E felony
Unlawful Sexual Intercourse in the First Degree - Section 775 (a) A person is guilty of
unlawful sexual intercourse in the first degree when the person intentionally engages in
sexual intercourse with another person and any of the following circumstances exist:
The intercourse occurs without the victim's consent, and the person inflicts serious
physical, mental or emotional injury upon the victim:
On the occasion of the crime; or
During the immediate flight from the crime; or
During an attempt to prevent the reporting of the crime; or
The intercourse occurs without the victim's consent and the defendant was not the victim's
voluntary social companion on the occasion of the crime and had not permitted the
defendant sexual intercourse within the previous 12 months; or
In the course of committing unlawful sexual intercourse in the third degree or unlawful
sexual intercourse in the second degree, the defendant displayed what appeared to be a
deadly weapon or a dangerous instrument; or
The victim is less than 16 years of age and the defendant is not the victim's voluntary
social companion on the occasion of the crime.
(b) Nothing contained in this section shall preclude a separate charge, conviction and
sentence for possession of a deadly weapon during the commission of a felony.
(c) Unlawful sexual intercourse in the first degree is a class A felony.
Unlawful Sexual Intercourse in the Second Degree - Section 774 (a) A person is guilty of
unlawful sexual intercourse in the second degree when the person intentionally engages in
sexual intercourse with another person and any of the following circumstances exist:
The intercourse occurs without the victim's consent and the person inflicts physical,
mental or emotional injury upon the victim:
On the occasion of the crime; or
During the immediate flight from the crime; or
During an attempt to prevent the reporting of the crime; or
The intercourse occurs without the victim's consent and the defendant was not the victim's
voluntary social companion on the occasion of the crime.
(b) Unlawful sexual intercourse in the second degree is a class B felony. Notwithstanding
any proportion of this title to the contrary, the minimum sentence for a person convicted
of unlawful sexual intercourse in the second degree in violation of this section shall be
10 years at Level V.
Unlawful Sexual Intercourse in the Third Degree - Section 773 (a) A person is guilty of
unlawful sexual intercourse in the third degree when the person intentionally engages in
sexual intercourse with another person and any of the following circumstances exist:
The intercourse occurs without the victim's consent; or
The victim is less than 16 years of age.
(b) Unlawful sexual intercourse in the third degree is a class C felony.
07-2000 New Source: U.S. statutory rape laws is published on the Web by the National
Clearinghouse on Child Abuse and Neglect Information. The booklet, which
requires Adobe Acrobat to read, is located at:
http://www.calib.com/nccanch/pubs/99statutes/35-SexualOffenses.PDF