CHAPTER 494

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 326

AS AMENDED BY HOUSE AMENDMENTS NOS. 1 AND 2

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO CERTAIN SEXUAL OFFENSES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all the members elected to each House thereof concurring therein):

Section 1. Amend Chapter 5, Subchapter U. Subpart D. Title 11 of the Delaware Code by deleting Subpart D in its entirety and substituting In lieu thereof the following:

"Subpart D. Sexual Offenses

§761. Definition generally applicable to sexual offenses

(a) Cututilingus 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 part of the body other than a tongue or penis. 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 §§76I through 775 and §1109 of this title. (c) Sexual Intercourse means:

(1) Any act of physical union of the genitalia or anus of one person with the mouth. anus or genitalia of another person. It occurs upon any penetration, however slight. Ejaculation is not required; 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 and shall also include touching of those specified areas when covered by clothing.

(g) Without consent means:

(1) The defendant compelled the victim to submit 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) the defendant had substantially impaired the victim's power to appraise or control his conduct by administering or employing without the other person's knowledge or against his will. drugs, intoxicants or other means for the purpose of preventing resistance.

(h) Voluntary Social Companion means a victim who is in the defendant's company on the occasion of the offense as a result of the victim's exercise of rational intellect and free will, without trick, coercion or duress. A victim who is less than 16 years of age, or who is mentally defective, is not the voluntary social companion of a defendant in whose custody or care the victim is placed.

§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 the age of the person being below the age of 16. it is no defense that the actor did not know the person's age, or that the actor reasonably believed the person to be 16 years old or older.

(b) Gender. Unless a contrary meaning is clearly required, the male pronoun shall be deemed to refer to both male and female.

§763. Sexual Harassment: Class B Misdemeanor A person is guilty of sexual harassment when:

(a) He threatens to engage in conduct likely to result in the commission of a sexual offense against any person; or

(b) he suggests, solicits, requests, commands, importunes or otherwise attempts to induce another person to have sexual contact or sexual intercourse or unlawful sexual penetration with him, knowing that he is thereby likely to cause annoyance, offense or alarm to that person.

Sexual harassment is a Class B Misdemeanor.

§764. Indecent Exposure in the Second Degree: Class B Misdemeanor

A male is guilty of indecent exposure in the second dcgrec if he exposes his genitals or buttocks under circumstances in which he knows his conduct is likely to cause affront or alarm to another person.

A female is guilty of indecent exposure in the second dcgrcc if she exposes her genitals, breast, or buttocks under circumstances in which she knows her conduct is likely to cause affront or alarm to another person.

§765. Indecent Exposure in the First Degree: Class A Misdemeanor

A male is guilty of indecent exposure in the first degree if he exposes his genitals or buttocks to a person who is less than 16 years of age under circumstances in which he knows his conduct is likely to cause affront or alarm.

A female is guilty of indecent exposure in the first degree if she exposes her genitals, breast, or buttocks to a person who is less than 16 years of age under circumstances in which she knows her conduct is likely to cause affront or alarm.

§766. Incest: Class A Misdemeanor

A person is guilty of Incest if he engages In sexual intercourse with another person with whom he has one of the following relationships:

A male and his child. A male and his parent.

A male and his brother. A male and his sister.

A male and his grandchild.

A male and his niece or nephew.

A male and his father's sister or brother.

A male and his mother's sister or brother.

A male and his father's wife.

A male and his wife's child.

A male and the child of his wife's son or daughter.

A female and her parent. A female and her child.

A female and her brother.

A female and her sister.

A female and her grandchild.

A female and her niece or nephew.

A female and her father's sister or brother.

A female and her mother's sister or brother.

A female and her mother's husband.

A female and her husband's child.

A female and the child of her husband's son or daughter.

The relationships referred to herein include blood relationships without regard to legitimacy and relationships by adoption.

Incest is a Class A Misdemeanor and is an offense within the original jurisdiction of the Family Court.

§767. Unlawful Sexual Contact in the Third Degree: Class A Misdemeanor

A person is guilty of unlawful sexual contact in the third degree when he has sexual contact with another person or causes the victim to have sexual contact with him or a third person and he knows that the contact is either offensive to the victim or occurs without the victim's consent.

$768. Unlawful Sexual Contact in the Second Degree: Class E Felony

A person is guilty of unlawful sexual contact in the second degree when he intentionally has sexual contact with another person who is less than 16 years of age or causes the victim to have sexual contact with him or a third person.

§769. Unlawful Sexual Contact in the First Degree: Class D Felony

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, he causes physical injury to the victim or he displays what appears to be a deadly weapon or dangerous instrument.

§770. Unlawful Sexual Penetration in the Third Degree: Class D Felony

A person is guilty of unlawful sexual penetration in the third degree when he intentionally places one or more fingers of thumbs or an object, as defined by 11 Del. C §761(c), inside the vagina or anus of a person under any of the following circumstances:

(I) The sexual penetration occurs without the victim's consent; or (2) the victim is less than 16 years old.

This law does not apply to a licensed medical doctor or nurse who places one or more fingers or an object inside a vagina or anus for the purpose of diagnosis or treatment.

§771. Unlawful Sexual Penetration in the Second Degree: Class C Felony

A person is guilty of unlawful sexual penetration in the second degree when he intentionally places one or more fingers or thumbs or an object, as defined by 11 Del. C. §761(c), inside the vagina or anus of a person under any of the following circumstances:

(1) 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, he causes physical Injury to the victim; or

(2) 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, he causes physical injury to the victim.

§772. Unlawful Sexual Penetration in the First Degree: Class B Felony

A person is guilty of a unlawful sexual penetration in the first degree when he intentionally places one or more fingers or thumbs or an object, as defined by 11 Del. C. §761(c), inside the vagina or anus of a person under any of the following circumstances:

(I) 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, he causes serious physical injury to the victim; or

(2) 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, he causes serious physical injury to the victim; or

(3) the sexual penetration occurs without the victim's consent and during the commission of the crime, or during the immeidate flight from the crime, or during an attempt to prevent the reporting of the crime, he displays what appears to be a deadly weapon or dangerous instrument; or

(4) 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, he displays what appears to be a deadly weapon or a dangerous instrument.

§773. Unlawful Sexual Intercourse In the Third Degree: Class B Felony

A person is guilty of unlawful sexual intercourse in the third degree when he intentionally engages in sexual Intercourse with another person and any of the following circumstances exist:

(1) The intercourse occurs without the victim's consent; or (2) the victim is less than 16 years of age.

§774. Unlawful Sexual Intercourse in the Second Degree: Class A Felony

A person is guilty of unlawful sexual intercourse in the second degree when he intentionally engages in sexual intercourse with another person and any of the following circumstances exist:

(1) The intercourse occurs without the victim's consent and he inflicts physical, mental or emotional injury upon the victim:

(a) On the occasion of the crime, or

(b) during the immediate flight from the crime, or

(c) during an attempt to prevent the reporting of the crime, or

(2) 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.

§775. Unlawful Sexual Intercourse in the First Degree: Class A Felony

A person is guilty of unlawful sexual intercourse in the first degree when he intentionally engages in sexual Intercourse with another person and any of the following circumstances exist:

(1) The intercourse occurs without the victim's consent, and ho inflicts serious physical, mental or emotional injury upon the victim:

(a) On the occasion of the crime; or

(b) during the immediate flight from the crime; or

(c) during an attempt to prevent the reporting of the crime: or

(2) 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

(3) 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

(4) 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.

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."

Section 2. Amend §1103, Chapter 5, Subchapter V, Title II of the Delaware Code by adding a new paragraph (e) (10) as follows:

"(10) Sexual Contact."

Section 3. Amend §4209A, Chapter 42, Title II of the Delaware Code by striking first degree rape as U appears in the section title and in the section and by substituting in lieu thereof the phrase "unlawful sexual intercourse in the first degree".

Section 4. Amend §4209(j), Chapter 42, Title 1l of the Delaware Code by striking the word "rape" as it appears therein and substituting M lieu thereof the phrase "unlawful sexual intercourse".

Section 5. Sections 761 to 775 of Title II of the Delaware Code as amended by the enactment of this law shall apply to all such offenses committed, or alleged to have been committed, on or after the date of the enactment by the amendments. Sections 761 to 774 of Title II as they were in effect prior to the date of the amendments enacted today shall govern all offenses committed, or alleged to have been committed, before the date of the enactment of these amendments. Offenses which were committed, or which were alleged to have been committed, during a course of conduct covering a time period both before and after the date of the enactment of these amendments shall be governed by Sections 761 to 774 of Title II as they were in effect on the date prior to the enactment of these amendments.

Section 6. If any provisions of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved July 9, 1986