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Delaware Prohibited Consensual Sexual Activity Laws

t's well-known that nonconsensual sexual activities, like rape and sexual assault, are illegal. It's not as well-known that states have or have had laws prohibiting consensual sexual activities, as well.

Throughout history, for example, states have used anti-sodomy laws to criminalize sexual activity between same-sex partners. However, that changed in 2003.

In that year, the U.S. Supreme Court heard Lawrence v. Texas. In that case, a man challenged his conviction in Texas for violating an anti-sodomy law in the state. For having sex in the privacy of his own home with another man, he was convicted of violating that law. However, the U.S. Supreme Court ruled that law unconstitutional and unenforceable. In the wake of the Supreme Court's decision, all anti-sodomy laws, as they apply to consenting adults, became unconstitutional and unenforceable.

In Delaware, as is the case in every other part of the United States, no anti-sodomy law may be used to criminalize sexual activity between consenting adults.

Sexual Activities Laws

Each state has laws that prohibit certain kinds of consensual sexual activity. Normally these correlate with the social norms of that particular state and tend to change with the times.

Delaware's prohibited consensual sexual activity laws include regulations found in most other states, like provisions for public indecency and indecent exposure. However, the state also requires mandatory testing and reporting if an HIV-positive person is convicted of a sex or drug crime that “created an epidemiologically demonstrated risk of [HIV] transmission" to another person.

Prohibited Consensual Sexual Activity Laws in Delaware

The main provisions of Delaware's prohibited consensual sexual activity laws are listed in the following chart.

Sodomy Laws Applicable to -
Penalty for Sodomy -
HIV Exposure and Compelled Testing for Offenders Under 10§1077, a defendant charged with a sexual offense (or other offense as defined in 10§1076) must submit to HIV testing upon the victim's request and a court's order.
Public Indecency & Other Related Offenses
  • Under 11§764, indecent exposure is a crime. Offenses are treated as a misdemeanor.
  • Under 11§1341, lewdness is a crime in public places or in places where the person engaging in lewdness knows that they are likely to offend or alarm other people. Offenses are treated as class B misdemeanors.
  • Under 11§1321, it is a crime to loiter. The statute addresses many kinds of loitering, including loitering in public spaces for purposes of soliciting or engaging another person in sexual intercourse, deviate or otherwise. Offenses are treated as a misdemeanor.
  • Under 11§1301, it is a crime to engage in disorderly conduct. While the statute does not explicitly refer to any offense of sexual nature, it does prohibit "offensive coarse utterances" and offensive gestures. These could include those that are sexual in nature. Offenses are treated as a misdemeanor.

Under 11§1344, it is a crime to engage in acts of prostitution and to solicit the services of a prostitute. Offenses are treated as a misdemeanor.

Age of Consent Under most circumstances, the age of consent in Delaware is 18. The offense of engaging in sexual activity with someone under the age of consent is referred to as statutory rape in most states. For more information about statutory rape, consider reviewing FindLaw's page on the subject.

Note: State laws are constantly changing by a variety of means, from newly passed legislation to decisions by higher courts. Contact a qualified criminal defense attorney near you or conduct your own research to verify the laws of your state.

Research the Law

Consider reviewing the following resources for more information about the laws of Delaware, including those related to sexual activity in the state:

  • At Delaware Law, you'll find links to all laws in the state, including those related to sexual activity.
  • At Delaware Code, you'll also find links to all the official statutes (laws) of Delaware, including those related to sexual activity.

Need More Help? Contact an Attorney Today

Social attitudes regarding sex are subject to change, and state laws often follow suit. If you have been charged with a sex crime or would like to fully understand your rights, you can contact a Delaware criminal defense attorney in your area. You can also visit FindLaw's Sex Crimes section for more comprehensive information on this topic

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