HIV/AIDS Testing of Offenders
Delaware

• An offense which has sexual intercourse or deviate sexual intercourse as an element, or has sexual contact as an element when the circumstances of the case demonstrate a possibility of transmission of HIV.
• “Sexual intercourse” means:
• any act of physical union of the genitalia or anus of 1 person with the mouth, anus or genitalia of another person, including rape and sodomy. It occurs upon any penetration, however slight. Ejaculation is not required; or
• any act of cunnilingus or fellatio regardless of whether penetration occurs. Ejaculation is not required.
• “Sexual contact” means:
• 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, semen or genitalia; or
• intentionally causing or allowing another person to touch the defendant’s anus, breast, buttocks or genitalia,

in each case if the touching, under the circumstances as viewed by a reasonable person, is intended to be sexual in nature. “Sexual contact” also includes touching when covered by clothing.

• Testing of a defendant who has been arrested and charged for an applicable crime is available upon the request of the victim and/or court order at the arraignment. Defendant is notified of the availability of testing at initial court appearance on the charges and the victim, or parent or guardian of the victim, is notified that the defendant has been so notified.

• At arraignment of a defendant arrested and charged with an offense that has sexual intercourse, deviant sexual intercourse or sexual contact as an element, at the request of the victim, the court shall order testing of defendant (regardless of any prior HIV test on the defendant).
• Defendant must submit to testing not later than 48 hours after the victim has requested, and/or the court has ordered, such testing.
• Filing of a notice of appeal shall not automatically stay an order that the defendant submit to HIV testing.

• A person charged with an offense, which has sexual intercourse, deviant sexual intercourse, or sexual contact as an element, shall upon initial court appearance on the charge, be informed by the judge of the availability of HIV testing. The judge shall also notify the victim of the offense, or parent or guardian of the victim who is a minor or has an intellectual disability or is mentally incapacitated, that the defendant has been so notified.
• The court shall order testing of such a person arrested and charged at the request of the victim.
• The defendant must submit to follow-up tests for HIV as may be medically appropriate.

• The Division of Public Health will make results available to the victim, or the parent or guardian of the victim who is a minor or has an intellectual disability or mental incapacity, the defendant, the court issuing the order for testing and any person or agency pursuant Delaware law (e.g., public health officials). Also, the Division of Public Health will notify the Department of Correction or the Department of Services to Children, Youth and Their Families solely for the purpose of providing medical treatment to a defendant incarcerated in any institution under such Department’s jurisdiction.
• Victim cannot disclose the results of an HIV-related test to another person except as authorized under Delaware law.

• If HIV infection is detected, the Division of Public Health shall provide counseling to the victim regarding HIV and referral for appropriate health care and support services.

• Costs of testing are paid by the defendant unless the court determines that the defendant is indigent

Del. Code Ann. tit. 10, §§ 1075-1077; Del. Code Ann. tit. 11 §§ 761; 3910-3913.