In Delaware, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone 15 or younger), even if the sex is consensual. It is also illegal for someone who is 30 or older to have sex with someone younger than 18. Those who break the law have committed statutory rape.
Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term, “statutory” rape. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.
Though statutory rape does not require force or an assault, it is still rape. Of course, rape that does involve force or an assault is illegal in Delaware and prosecuted as forcible rape. Assaults of a sexual nature may also be charged under the state’s assault and battery or child enticement or molestation laws.
Statutory rape is prosecuted under Delaware’s sexual assault and rape laws and includes sexual contact or intercourse between an adult and a minor who is 15 years old or younger. It also includes intercourse between an adult who is 30 or older and a 16 or 17 year-old-minor (unless the marital exemption applies, discussed below).
Within those categories, the offense is broken further into several categories based on what conduct occurred—sexual intercourse, penetration, or contact may all be prosecuted (and punished) differently. Penalties for statutory rape vary according to the offense under which it is charged.
Getting Legal Guidance
The information in this article provides an overview of the law relating to statutory rape. If you are trying to determine the legality of any kind of conduct, make sure to consult an experienced criminal defense attorney. The law is complex and changes regularly.
Rape in the first degree includes sexual intercourse (including oral, genital, or anal sex) with a victim younger than 12 years old, when the defendant is 18 years old or older. Rape in the first degree is a class A felony. Penalties include at least 15 years in prison. (11 Del. Code Ann. §§ 761, 773, 4205 (2018).)
Rape in the second degree includes sexual contact involving penetration with a victim younger than 12 years old, when the defendant is 18 years old or older. Rape in the second degree is a class B felony. Penalties include at least ten (and up to 25) years in prison. (11 Del. Code Ann. §§ 761, 772, 4205 (2018).)
Rape in the third degree involves sexual intercourse with a victim who is 15 or younger when the defendant is at least ten years older than the victim, or when the victim is 13 or younger and the defendant is at least 19 years old. Rape in the third degree is a class B felony. Penalties include at least two (and up to 25) years in prison. (11 Del. Code Ann. §§ 761, 771, 4205 (2018).)
Rape in the fourth degree involves sexual intercourse with a victim who is 15 or younger, or when the victim is younger than 18 and the defendant is 30 years old or older. Rape in the fourth degree is a class C felony, which is punishable by up to 15 years in prison. (11 Del. Code Ann. §§ 761, 770, 4205 (2018).)
Unlawful sexual contact in the first degree involves sexual contact (sexual touching, even over clothing, without penetration) with a victim who is 13 or younger. Unlawful sexual contact in the first degree is a class D felony, which is punishable by up to eight years in prison. (11 Del. Code Ann. §§ 761, 769, 4205 (2018).)
Unlawful sexual contact in the second degree involves sexual contact with a victim who is 17 or younger. Unlawful sexual contact in the second degree is a class F felony, and penalties include up to three years in prison. (11 Del. Code Ann. §§ 761, 768, 4205 (2018).)
State law requires that, in addition to the applicable fines and prison time, people convicted of certain sexual crimes (including statutory rape) must register as sex offenders. (11 Del. Code Ann. § 4121(a)(4) (2018).)
Unlike normal rape charges, consent is not usually a defense to statutory rape. Statutory rape laws make minors legally incapable of giving consent to sexual activities. Therefore even if the minor “consented,” the sexual activity was nonetheless illegal and the defendant may be convicted of rape, unless the marital exemption or the “Romeo and Juliet” exception applies (as discussed below).
Named after Shakespeare’s young lovers, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. In Delaware, there is a Romeo and Juliet exemption for consensual sex between a minor who is 12, 13, 14, or 15 years old and a defendant who is no more than four years older than the minor. (11 Del. Code Ann. §§ 761, 762 (2018).)
However, sexual contact with a child under the age of 12 is a serious crime. A conviction for engaging in sexual activity with someone younger than 12 can result in a sentence of up to life in prison.
Normally, minors are legally incapable of giving consent to having sex; so for example, if Jen, a 17-year-old, willingly has sex with Tony, her 32-year-old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.
However, Delaware has a marital exemption for rape in the fourth degree, to protect married minors who are 16 or 17 years old and their adult spouses who are 30 years old or older. (11 Del. Code Ann. § 770 (2018).) So if Jen and Tony are married and living in Delaware, Tony need not fear criminal charges for having consensual sex with Jen. (The marital defense is a remnant of the marital rape exemption.)
If Tony were to rape Jen (force her to have sex against her will), though, he would have no protection under the law even if the two are married. That is, the exemption covers only statutory rape, not sexual battery or related crimes.
Like in most states, mistake of age is not a defense in Delaware. Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the victim herself represented that she was older than she was, and that a reasonable person would have believed her. But in Delaware, even a reasonable mistake as to the victim's age will not be a defense to a charge of statutory rape. (11 Del. Code Ann. §§ 454, 762 (2018).)
It’s important to remember that the law can change at any time. If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. The law can change at any time, and a lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.
A lawyer can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time) and will know how prosecutors and judges typically handle cases like yours.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated October 16, 2018