Sex Crimes: Definitions and Penalties
Delaware

Intentionally engaging in sexual intercourse with another person and:

• The sexual intercourse occurs without the victim’s consent and during the commission of the crime, or during the immediate flight following the crime, or during an attempt to prevent the reporting of the crime, the defendant causes physical injury or serious mental or emotional injury to the victim; or
• The sexual intercourse occurs without the victim’s consent and it was facilitated by or occurred during the course of the commission or attempted commission of:
• Any felony; or
• Any of certain misdemeanors – reckless endangerment (2d degree); assault (3d degree); terroristic threatening; unlawfully administering drugs; unlawful imprisonment (2d degree); coercion; or criminal trespass (1st, 2d, or 3d degree); or
• In the course of the commission of 2d, 3d, or 4th degree rape, or while in the immediate flight following the crime, the defendant displayed what appeared to be a deadly weapon or represents by word or conduct that defendant is in possession or control of a deadly weapon or dangerous instrument;
• The sexual intercourse occurs without the victim’s consent, and a principal-accomplice relationship (defined in Del. Code § 271) existed between the defendant and another person(s) with respect to commission of the crime; or
• The victim is not yet 12 years of age, and defendant is at least 18 years of age.

Defendant may be charged with, convicted of, and sentenced for any separate crime in the Delaware Code in addition to this crime.

Rape (1st degree) is a Class A felony, punishable by incarceration for a minimum of 15 years up to life imprisonment, to be served at Level V.

Defendant shall be sentenced to life imprisonment without benefit of probation, parole, or any other reduction if:

• The victim is less than 16 years of age at the time of the offense and the defendant inflicts serious physical injury to the victim;
• The defendant intentionally causes serious and prolonged disfigurement to the victim permanently, or intentionally destroys, amputates, or permanently disables a member/organ of victim’s body;
• Defendant is convicted of rape against three or more separate victims; or
• Defendant has previously been convicted of: unlawful sexual intercourse (1st degree), rape (1st or 2d degree), or any equivalent offense under the laws of Delaware, any other state, or the U.S.

Enhanced sentencing, of not less than 25 years up to life imprisonment to be served at Level V, is available if either of the following apply:

• The defendant has previously been convicted of any sex offense set forth in this title and classified as a class A or B felony, or any similar offense under the laws of Delaware, any other state, or the U.S.; or
• The victim of the instant offense is a child less than 14 years of age.

The following definitions are relevant to this crime:

• Sexual intercourse:
• 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.
• Any act of cunnilingus or fellatio regardless of whether penetration occurs. Ejaculation is not required.
• Cognitive disability: a developmental disability that substantially impairs an individual’s cognitive abilities including, but not limited to, delirium, dementia and other organic brain disorders for which there is an identifiable pathologic condition, as well as nonorganic brain disorders commonly called functional disorders. “Cognitive disability” also includes conditions of mental retardation, severe cerebral palsy, and any other condition found to be closely related to mental retardation because such condition results in the impairment of general intellectual functioning or adaptive behavior similar to that of persons who have been diagnosed with mental retardation, or such condition requires treatment and services similar to those required for persons who have been diagnosed with mental retardation.
• 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.
• Without consent:
• 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;
• The defendant knew that the victim was unconscious, asleep or otherwise unaware that a sexual act was being performed;
• The defendant knew that the victim suffered from a cognitive disability, mental illness or mental defect which rendered the victim incapable of appraising the nature of the sexual conduct or incapable of consenting;
• 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
• 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.
• A child who has not yet reached that child’s 16^th 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.
• Age of Victim:
• If the definition of a sexual offense, the criminality of conduct, or the degree of an offense depends on whether the victim was under the age of 16, it is not a defense that the actor did not know the victim’s age or reasonably believed the victim was 16 or older.
• Where the victim’s age is an element of a sexual offense because the victim has not yet reached the age of 16, if the actor is no more than four years old than the victim, it is an affirmative defense that the victim consented to the act “knowingly” as defined in Del. Code Ann. Tit. 11, § 231. This affirmative defense will not apply if the victim was less than 12 at the time of the act.

Del. Code Ann. Tit. 11, §§ 761 (definitions), 762, 773, 4205 (sentence for felonies), and 4205A (additional penalty for serious sex offenders or pedophile offenders).

Intentionally engaging in sexual intercourse with another person, and the intercourse occurs without the victim’s consent; or

Intentionally engaging in sexual penetration with another person and:

• The sexual penetration occurs without the victim's consent and during the commission of the crime, or during the immediate flight following the commission of the crime, or during an attempt to prevent the reporting of the crime, the person causes serious physical injury to the victim;
• The sexual penetration occurs without the victim’s consent and it was facilitated by or occurred during the course of the commission or attempted commission of:
• Any felony; or
• Any of certain misdemeanors – reckless endangerment (2d degree); assault (3d degree); terroristic threatening; unlawfully administering drugs; unlawful imprisonment (2d degree); coercion or criminal trespass (1st, 2d, or 3d degree);
• The victim is less than 16 years of age and the defendant inflicts serious physical injury to the victim during the commission of the crime, during immediate flight from the crime, or during an attempt to prevent reporting of the crime;
• The sexual penetration occurs without the victim’s consent and during the commission of the crime, during immediate flight from the crime, or during an attempt to prevent reporting of the crime, the defendant displayed what appeared to be a deadly weapon or represents by word or conduct that defendant is in possession or control of a deadly weapon or dangerous instrument;
• The victim is less than 16 years of age and during the commission of the crime, during immediate flight from the crime, or during an attempt to prevent reporting of the crime, the defendant displayed what appeared to be a deadly weapon or represents by word or conduct that defendant is in possession or control of a deadly weapon or dangerous instrument;
• The sexual penetration occurs without the victim’s consent, and a principal-accomplice relationship existed between the defendant and another person(s) with respect to commission of the crime; or
• The victim is not yet 12 years of age, and defendant is at least 18 years of age.

Defendant may be charged with, convicted of, and sentenced for any separate crime in the Delaware Code in addition to this crime.

Rape (2d degree) is a Class B felony.

• Minimum sentence is 10 years at Level V.
• No less than 2 years up to 25 years to be served as Level V.

Enhanced sentencing, of not less than 25 years up to life imprisonment to be served at Level V, is available if either of the following apply:

• The defendant has previously been convicted of any sex offense set forth in this title and classified as a class A or B felony, or any similar offense under the laws of Delaware, any other state, or the U.S.; or
• The victim of the instant offense is a child less than 14 years of age.

The following definitions are relevant to this crime:

• Sexual penetration:  The unlawful placement of an object inside the anus or vagina of another person; or the unlawful placement of the genitalia or any sexual device inside the mouth of another person.
• See Rape (1st degree) for additional relevant definitions and other provisions.

Del. Code Ann. tit. 11, §§ 761 (definitions), 772, and 4205.

(1) Intentionally engaging in sexual intercourse with another person, and the victim is less than 16 years of age and defendant is at least 10 years older than the victim, or the victim is less than 14 years of age and defendant is at least 19 years of age and is not otherwise subject to prosecution under Rape in 2^nd Degree (§772) or Rape in the 1^st Degree (§773) of this title; or

(2) Intentionally engaging in sexual penetration with another person and:

• The sexual penetration occurs without the victim’s consent and during the commission of the crime, or during the immediate flight following the crime, or during an attempt to prevent the reporting of the crime, the defendant causes physical injury or serious mental or emotional injury to the victim; or
• The victim is less than 16 years of age and the defendant causes serious physical injury or serious mental/emotional injury to the victim during the commission of the crime, during immediate flight from the crime, or during an attempt to prevent reporting of the crime.
• Note: Clause (2) 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, or to a law-enforcement officer who is engaged in the lawful performance of his or her duties.

• Rape (3d degree) is a Class B felony, punishable by incarceration for a minimum of 2 years, up to 25 years, to be served at Level V.
• When a child results from any violation of this statute and the child is in the custody and care of the victim or the victim’s legal guardian(s), the court shall order that defendant, as a condition of any probation, timely pay any child support ordered by the Family Court for such child.
• Defendant may be charged with, convicted of, and sentenced for any separate crime in the Delaware Code in addition to this crime.

For the offense described above under (2), bullet 1, enhanced sentencing of not less than 25 years up to life imprisonment to be served at Level V, is available if either of the following apply:

• The defendant has previously been convicted of any sex offense set forth in this title and classified as a class A or B felony, or any similar offense under the laws of Delaware, any other state, or the U.S.; or
• The victim of the instant offense is a child less than 14 years of age.

• See Rape (1st degree) for relevant definitions and other provisions.

Del. Code Ann. tit. 11, §§ 771, 4205, and 4205A.

(1) Intentionally engaging in sexual intercourse with another person, and the victim is less than 16 years of age; or

(2) Intentionally engaging in sexual intercourse with another person, and the victim is less than 18 years of age, and defendant is at least 30 years of age; except that such intercourse shall not be unlawful if the victim and defendant are married at the time of such intercourse; or

(3) Intentionally engaging in sexual penetration with another person and:

• The sexual penetration occurs without the victim’s consent; or
• The victim is less than 16 years of age.
• Note: Clause (3) 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, or to a law-enforcement officer who is engaged in the lawful performance of his or her duties.

The following definitions are relevant to this crime:

• See Rape (1st degree) for relevant definitions and other provisions.

Rape (4th degree) is a Class C felony, punishable by incarceration for up to 15 years, to be served at Level V. 

Del. Code Ann. tit. 11, §§ 770, and 4205.

(1) While engaging in unlawful sexual contact (2d or 3d degree), or during immediate flight or attempt to prevent the reporting of the crime, defendant causes physical injury to victim or defendant displays what appears to be a deadly weapon or dangerous instrument; or represents by word or conduct that defendant is in possession or control of a deadly weapon or dangerous instrument; or

(2) Defendant intentionally has sexual contact with another person who is less than 13 years of age or causes the victim to have sexual contact with the defendant or a third person.

Unlawful sexual contact (1st degree) is a Class D felony, punishable by incarceration for up to 8 years, to be served at Level V.

The following definitions are relevant to this crime:

• Sexual contact: any intentional touching by the defendant of the anus, breast, buttocks or genitalia of another person; or any intentional touching of another person with the defendant's anus, breast, buttocks or genitalia; or intentionally causing or allowing another person to touch the defendant's anus, breast, buttocks or genitalia; which touching, under the circumstances as viewed by a reasonable person, is intended to be sexual in nature. Sexual contact shall also include touching when covered by clothing.
• See Rape (1st and 2d degree) for additional relevant definitions and other provisions.

Del. Code Ann. tit. 11, §§ 769 and 4205.

Intentionally having sexual contact with another person who is less than 18 years of age or causing the victim to have sexual contact with defendant or a third person.

Unlawful sexual contact (2d degree) is a Class F felony, punishable by incarceration for up to 3 years, to be served at Level V.

The following definitions are relevant to this crime:

• See Rape (1st and 2d degree) and Unlawful Sexual Contact (1st degree) for relevant definitions.

Del. Code Ann. tit. 11, §§ 768, and 4205.

Engaging in sexual contact with another person or causing the victim to have sexual contact with defendant or a third person and defendant knows that the contact is either offensive to the victim or occurs without the victim’s consent.

Unlawful sexual contact (3d) is a Class A misdemeanor punishable by incarceration for up to 1 year at Level V and fine up to $2,300, restitution, or other conditions as the court deems appropriate.

The following definitions are relevant to this crime:

• See Rape (1st and 2d degree) and Unlawful Sexual Contact (1st degree) for relevant definitions.

Del. Code Ann. tit. 11, §§ 767 and 4206 (sentence for misdemeanors).

“Statutory rape”: sexual penetration that is illegal because it involves a youth and consent is immaterial. While Delaware does not expressly penalize “statutory rape,” the offenses of rape in the first, second, third, and fourth degrees target this conduct.

• Statutory rape is rape (1st degree) if defendant intentionally engages in sexual intercourse with another person and the victim is not yet 12 years of age, and defendant is at least 18 years of age.

• Statutory rape is rape (2d degree) if defendant intentionally engages in sexual penetration and:
• The victim is not yet 12 years of age, and defendant is at least 18 years of age.
• Statutory rape is rape (3d degree) if defendant:
• Intentionally engages in sexual intercourse with another person, and the victim is less than 16 years of age and defendant is at least 10 years older than the victim, or the victim is less than 14 years of age and defendant is at least 19 years of age.  
• Note: 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, or to a law-enforcement officer who is engaged in the lawful performance of his or her duties.
• Statutory rape is rape (4th degree) if defendant:
• Intentionally engages in sexual intercourse with another person, and the victim is less than 16 years of age;
• Intentionally engages in sexual intercourse with another person, and the victim is less than 18 years of age, and defendant is at least 30 years of age; except that such intercourse shall not be unlawful if the victim and defendant are married at the time of such intercourse; or
• Intentionally engages in sexual penetration with another person and the victim is less than 16 years of age.
• Note: 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, or to a law-enforcement officer who is engaged in the lawful performance of his or her duties.

• Rape (1st degree) is a Class A felony, punishable by imprisonment of not less than 15 years up to life imprisonment to be served at Level V .
• Rape (2d degree) is a Class B felony, punishable by imprisonment of not less than 10 years up to 25 years to be served at Level V.
• Rape (3d degree) is a Class B felony, punishable by imprisonment of not less than 2 years up to 25 years to be served at Level V.
• Rape (4th degree) is a Class C felony, punishable by imprisonment of up to 15 years to be served at Level V.

The following definitions are relevant to this crime:

• See Rape (1st and 2d degree) for relevant definitions and other provisions.

• Del. Code Ann. tit. 11, §§ 770-73 and 4205.

• Delaware does not prohibit sodomy between consenting adults.
• Any state laws that prohibit sodomy are unconstitutional under Lawrence v. Texas, 539 U.S. 588 (2003).

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