CHAPTER 285

FORMERLY

SENATE BILL NO. 226

AS AMENDED BY SENATE AMENDMENTS NOS. 1, 2, 3, 4 AND 5 AND
HOUSE AMENDMENT NO. 2

AN ACT TO AMEND TITLES 10, 11, AND 13 OF THE DELAWARE CODE RELATING TO CERTAIN CRIMES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 2. Amend Sections 636(a)(6), 3508(a), 3508(b) and 3509(a) of Title 11 of the Delaware Code by striking the word "rape" as it appears variously therein, and by substituting in lieu thereof the phrase "any degree of rape".

Section 3. Amend Section 761(c) of Title 11 of the Delaware Code by adding the word "any" between the phrases "instrument, substance, or" and "part of the body" as they appear in the first sentence of said subsection, and by striking the phrase "other than a tongue or penis" as it appears in the first sentence of said subsection.

Section 4. Amend Section 761(g)(1) of Title 11 of the Delaware Code by inserting between the phrases "victim to submit by" and "force, by gesture, or by threat" as they currently appear in said paragraph the following:

"any act of coercion as defined in §791 and §792 of this Title, or by"

Section 5. Amend Section 761(h) of Title 11 of the Delaware Code by deleting said subsection in its entirety, and by substituting in lieu thereof the following:

"(h) '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."

Section 6. Amend Section 761(g) of Title 11 of the Delaware Code by redesignating said subsection as Section 761(h), and by redesignating Section 761(h) of Title 11 of the Delaware Code as Section 761(I), and by adding to Section 761 a new subsection (g), to read as follows:

"(g) 'Sexual penetration' means:

(1) the unlawful placement of an object, as defined in §761(c) of this title, 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."

Section 7. Amend Section 761 of Title 11 of the Delaware Code by adding thereto a new subsection, to be designated as "(j)", to read as follows:

"(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."

Section 8. Amend Section 762(a) of Title 11 of the Delaware Code by striking the phrase "the age of a person being below the age of 16," as it appears in said subsection, and by substituting in lieu thereof the following:

"whether the person has reached his or her sixteenth birthday,", and by striking the phrase "the person to be 16 years old or older." as it appears in said subsection, and by substituting in lieu thereof the following:

"that the person had reached his or her sixteenth birthday."

Section 9. Amend Section 762(d) of Title 11 of the Delaware Code by striking said subsection in its entirety, and by substituting in lieu thereof the following:

"(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 four (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."

Section 10. Amend Sections 770, 771 and 772 of Title 11 of the Delaware Code by striking said sections in their entirety, and by substituting in lieu thereof the following:

"§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

(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 thirty 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.

(b) Paragraph (a)(3) and (a)(4) of 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 or to a law enforcement officer who is engaged in the lawful performance of his or her duties.

(c) Rape in the fourth degree is a class C felony."

Section 11. Amend Section 773 of Title 11 of the Delaware Code by striking said section in its entirety, and by substituting in lieu thereof the following:

"§771. Rape in the third degree; class B felony.

(a) A person is guilty of rape in the third degree when the person:

(1) intentionally engages in sexual intercourse with another person, and the victim has not reached his or her sixteenth birthday and the person is at least 10 years older than the victim, or the victim has not yet reached his or her fourteenth birthday and the person has reached his or her nineteenth birthday and is not otherwise subject to prosecution pursuant to §772 or 773 of this title; or

(2) intentionally engages in sexual penetration with another person under any of the following circumstances:

a. 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 or serious mental or emotional injury to the victim; or

b. the victim has not reached his or her sixteenth birthday 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 or serious mental or emotional injury to the victim.

(b) Paragraph (a)(2) of 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, or to a law enforcement officer who is engaged in the lawful performance of his or her duties.

(c) Notwithstanding any law to the contrary, in any case in which a violation of subsection (a) of this section has resulted in the birth of a child who is in the custody and care of the victim or the victim's legal guardian(s), the court shall order that the defendant, as a condition of any probation imposed pursuant to a conviction under this section, timely pay any child support ordered by the Family Court for such child.

(d) Nothing in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code.

(e) Rape in the third degree is a class B felony."

Section 12. Amend Section 774 of Title 11 of the Delaware Code by striking said section in its entirety, and by substituting in lieu thereof the following:

"§772. Rape in the second degree; class B felony.

(a) A person is guilty of rape in the second degree when the person:

(1) intentionally engages in sexual intercourse with another person, and the intercourse occurs without the victim's consent; or

(2) intentionally engages in sexual penetration with another person under any of the following circumstances:

(a) 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, or during an attempt to prevent the reporting of the crime, the person causes serious physical injury to the victim; or

(b) the sexual penetration occurs without the victim's consent, and was facilitated by or occurred during the course of the commission or attempted commission of :

(i) any felony; or

(ii) any of the following misdemeanors: reckless endangering in the second degree; assault in the third degree; terroristic threatening; unlawfully administering drugs; unlawful imprisonment in the second degree; coercion or criminal trespass in the first, second or third degree; or

(c) the victim has not yet reached his or her sixteenth birthday 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

(d) 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 displays what appears to be a deadly weapon or dangerous instrument; or

(e) the victim has not yet reached his or her sixteenth birthday 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; or

(f) the sexual penetration occurs without the victim's consent, and a principal- accomplice relationship within the meaning set forth in §271 of this title existed between the defendant and another person or persons with respect to the commission of the crime; or

(g) the victim has not yet reached his or her twelfth birthday, and the defendant has reached his or her eighteenth birthday; or

(h) the victim has not yet reached his or her sixteenth 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.

(b) Nothing in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this Title, or in the Delaware Code.

(c) Notwithstanding any provision of this title to the contrary, the minimum sentence for a person convicted of rape in the second degree in violation of this section shall be 10 years at Level V.

(d) Rape in the second degree is a class B felony."

Section 13. Amend Section 775 of Title 11 of the Delaware Code by deleting said section in its entirety, and by substituting in lieu thereof the following:

"§773. Rape in the first degree; class A felony.

(a) A person is guilty of rape in the first degree when the person intentionally engages in sexual intercourse with another person and any of the following circumstances exist:

(1) the sexual intercourse 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 physical injury or serious mental or emotional injury to the victim; or

(2) 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:

a. any felony; or

b. any of the following misdemeanors: reckless endangering in the
second degree; assault in the third degree; terroristic threatening; unlawfully administering drugs; unlawful imprisonment in the second degree; coercion; or criminal trespass in the first, second or third degree; or

(3) in the course of the commission of rape in the second, third or fourth degree, or while in the immediate flight therefrom, the defendant displayed what appeared to be a deadly weapon or dangerous instrument; or

(4) the sexual intercourse occurs without the victim's consent, and a principal- accomplice relationship within the meaning set forth in §271 of this title existed between the defendant and another person or persons with respect to the commission of the crime; or

(5) the victim has not yet reached his or her twelfth birthday, and the defendant has reached his or her eighteenth birthday; or

(6) the victim has not yet reached his or her sixteenth 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.

(b) Nothing contained in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this Title, or in the Delaware Code.

(c) Notwithstanding any law to the contrary, a person convicted of rape in the first degree shall be sentenced to life imprisonment without benefit of probation, parole or any other reduction if:

(1) the victim had not yet reached his or her 16th birthday at the time of the offense and the person inflicts serious physical injury on the victim; or

(2) the person intentionally causes serious and prolonged disfigurement to the victim permanently, or intentionally destroys, amputates or permanently disables a member or organ of the victim's body; or

(3) the person is convicted of rape against three or more separate victims or

(4) the person has previously been convicted of unlawful sexual intercourse in the first degree, rape in the second degree or rape in the first degree, or any equivalent offense under the laws of this State, any other State or the United States.

(d) Rape in the first degree is a class A felony."

Section 14. Amend Section 4201(c) of Title 11 of the Delaware Code by deleting the following:

"770 Unlawful Sexual Penetration in the Third Degree

771 Unlawful Sexual Penetration in the Second Degree

772 Unlawful Sexual Penetration in the First Degree

773 Unlawful Sexual Intercourse in the Third Degree

774 Unlawful Sexual Intercourse in the Second Degree 775 Unlawful Sexual Intercourse in the First Degree as it appears in said subsection and substituting in lieu thereof:

770 Former Unlawful Sexual Penetration in the Third Degree or Rape in the Fourth Degree

771 Former Unlawful Sexual Penetration in the Second Degree or Rape in the Third Degree

772 Former Unlawful Sexual Penetration in the First Degree or Rape in Second Degree

773 Former Unlawful Sexual Intercourse in the Third Degree or Rape in the First Degree

774 Former Unlawful Sexual Intercourse in the Second Degree

775 Former Unlawful Sexual Intercourse in the First Degree

Section 15. Amend Section 4214 (b) of Title 11 of the Delaware Code by adding the word "former" immediately before each of the following section designations "763", "764 "766", "771", "772", "773", "774" and "775" as they appear in said subsection.

Section 16. Amend Section 4214(b) of Title 11 of the Delaware Code by inserting after if phrase "Unlawful sexual intercourse in the first degree" and before the phrase "Title 16, Section the following:

"Section 771 Rape in the third degree

Section 772 Rape in the second degree

Section 773 Rape in the first degree"

Section 17. Amend Sections 4331(a) and 4347(1) of Title 11 of the Delaware Code E striking the phrase "murder, rape," as it appears variously therein, and by substituting in tic thereof the phrase "murder in the first or second degree, rape in the first, second or third degree

Section 18. Amend Section 4331 of Title 11 of the Delaware Code by adding a new subsection to said section, to be designated as subsection (h), to read as follows:

"(h) Notwithstanding any statute, rule or regulation to the contrary, upon conviction any person for any sexual offense, as defined in Section 761 of this Title, and upon request either party, the court shall direct that a presentence report be prepared by a presentence officer.'

Section 19. Amend Section 6533(d)(3) of Title 11 of the Delaware Code by adding the word "former" immediately before each of the following section designations "770", "771 "772", "773" and "774" as they appear in said subsection.

Section 20. Amend Section 6533(d)(3) of Title 11 of the Delaware Code by inserting after the phrase "774 Unlawful sexual intercourse second degree" and before the phrase "7") Continuous sexual abuse of a child" the following:

"770 Rape in the fourth degree;

771 Rape in the third degree;

772 Rape in the second degree;

773 Rape in the first degree;"

Section 21. Amend Section 6703 of Title 11 of the Delaware Code by adding between the phrases "sexual extortion" and "unlawful sexual intercourse in the first degree" as they appear in said section the following:

"rape in the first degree, rape in the second degree, rape in the third degree, rape in the fourth degree"

Section 22. Amend Section 9401(1) of Title 11 of the Delaware Code by adding the word "former" immediately before each of the following section designations "770, 771, 77. 773, 774 and 775" as they appear in said paragraph.

Section 23. Amend Section 9401(1) of Title 11 of the Delaware Code by inserting after the phrase "775 Unlawful Sexual Intercourse in the first degree; class A felony" and "781 Unlawful Imprisonment in the second degree" as they appear in said paragraph the following:

"770 Rape in the fourth degree; class C felony.

771 Rape in the third degree; class B felony.

772 Rape in the second degree; class B felony.

773 Rape in the first degree; class A felony."

Section 24. Amend Section 921(2)a of Title 10 of the Delaware Code by inserting between the phrases "murder in the first or second degree" and "unlawful sexual intercourse in the first degree" the phrase "rape in the first degree, rape in the second degree,"

Section 25. Amend Section 1010(a)(1) of the Title 10 of the Delaware Code by striking the phrase "unlawful sexual intercourse in the first degree or unlawful sexual penetration in the first degree" as it appears therein, and by substituting in lieu thereof the phrase "rape in the first degree or rape in the second degree".

Section 26. Amend Section 1010(a)(3) of Title 10 of the Delaware Code by striking the phrase "unlawful sexual intercourse in the second degree" as it appears therein, and by substituting in lieu thereof the phrase "rape in the third degree".

Section 27. Amend Section 728(d) of Title 13 of the Delaware Code by inserting between the phrases "result of an act of " and "unlawful sexual intercourse" as they appear therein the phrase "rape of any degree or" and by inserting between the phrases "is convicted of" and "unlawful sexual intercourse" as they currently appear therein the phrase "any degree of rape".

Section 28 The repeal or amendment of any statute by this Act shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability incurred under such statute, and such statute shall be treated as remaining in full force and effect for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. Any action, case, prosecution, trial or other legal proceeding in progress under or pursuant to any statute repealed or amended by this Act shall be preserved and shall not become illegal or terminated, irrespective of the stage of such proceeding. For the purpose of such proceedings, the prior law shall remain in full force and effect.

Section 29. This Act shall become effective 90 days after its enactment into law.

Approved June 11, 1998