Section 1. Amend § 761(j), Title 11 of the Delaware Code by making insertions as shown by underlining and deletions as shown by strike through as follows:

(j) "Without consent" means:

(1) The defendant compelled the victim to submit by any act of coercion as defined in §§ 791 and 792 of this title, or 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 cognitive disability, mental illness or mental defect which rendered the victim incapable of appraising the nature of the sexual conduct or incapable of consenting; or

(4) Where the defendant is a health professional, as defined herein, or a minister, priest, rabbi or other member of a religious organization engaged in pastoral counseling, the commission of acts of sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to be without consent of the victim where such acts are committed under the guise of providing professional diagnosis, counseling or treatment and where at the times of such acts the victim reasonably believed the acts were for medically or professionally appropriate diagnosis, counseling or treatment, such that resistance by the victim could not reasonably have been manifested. For purposes of this paragraph, "health professional" includes all individuals who are licensed or who hold themselves out to be licensed or who otherwise provide professional physical or mental health services, diagnosis, treatment or counseling and shall include, but not be limited to, doctors of medicine and osteopathy, dentists, nurses, physical therapists, chiropractors, psychologists, social workers, medical technicians, mental health counselors, substance abuse counselors, marriage and family counselors or therapists and hypnotherapists; or

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

(6) The victim has not yet reached his or her twelfth birthday. A child who has not yet reached his or her twelfth birthday is deemed unable to consent to a sexual act under any circumstances.

Section 2. Amend § 761(k), Title 11 of the Delaware Code by making deletions as shown by strike through as follows:

(k) A child who has not yet reached that child's 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 3. Amend § 770(a), Title 11 of the Delaware Code by making insertions as shown by underlining and deletions as shown by strike through as follows:

(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 that victim's sixteenth birthday; or

(2) Intentionally engages in sexual intercourse with another person, and the victim has not yet reached that victim's eighteenth birthday, and the person is 30 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)~~(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; or

b. The victim has not reached that victim's sixteenth birthday.

~~(4)~~(3) [Repealed.]

Section 4. Amend § 771(a), Title 11 of the Delaware Code by making insertions as shown by underlining and deletions as shown by strike through as follows:

(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 that victim's sixteenth birthday and the person is at least 10 years older than the victim, or~~ and the victim has not yet reached that victim's fourteenth birthday and the person has reached that person's 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 that victim's 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.; or

c. The victim has not yet reached that victim’s fourteenth birthday and the person has reached that person’s nineteenth birthday and is not otherwise subject to prosecution pursuant to § 772 or § 773 of this title.

(3) [Repealed.]

Section 5. Amend § 772(a), Title 11 of the Delaware Code by making insertions as shown by underlining and deletions as shown by strike through as follows:

(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 intercourse with another person, and the victim has not yet reached that victim’s sixteenth birthday and the person is at least 10 years older than the victim;

~~(2)~~(3) Intentionally engages in sexual penetration with another person under any of the following circumstances:

Section 6. Amend § 4205A(a), Title 11 of the Delaware Code by making insertions as shown by underlining and deletions as shown by strike through as follows:

(a) Notwithstanding any provision of this chapter or any other laws to the contrary, a defendant convicted of any crime set forth in § 771(a)(2), § 772, § 773, § 777, § 777A, § 778(1) or (2) of this title shall be sentenced to not less than 25 years up to life imprisonment to be served at Level V if:

(1) The defendant has previously been convicted or adjudicated delinquent of any sex offense set forth in this title and classified as a class A or B felony, or any similar offense under the laws of another state, the United States or any territory thereof; or

(2) The victim of the instant offense is a child less than 14 12 years of age.

SPONSOR:	Rep. M. Smith & Sen. Blevins
	Reps. Bolden, Jaques, Keeley, Mitchell, Schooley, Viola, Walker; Sens. Bunting, Bushweller, Henry