Delaware LGBT Laws

Consensual sex between same-sex couples is lawful at eighteen (18) years, or sixteen (16) years in limited circumstances as detailed below.

Delaware Criminal Code, Title 11, Chapter 5. Specific Offences, Subchapter II. Offences against the person [L1.1]

§ 761. Definitions generally applicable to sexual offenses.

(j) 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.

§ 768. Unlawful sexual contact in the second degree; class F felony.

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

Unlawful sexual contact in the second degree is a class F felony.

11 Del. C. 1953, §§ 761, 762; 58 Del. Laws, c. 497, § 1; 65 Del. Laws, c. 494, § 1; 66 Del. Laws, c. 269, § 20; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 364, § 1.;

§ 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 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) 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; or

(4) Intentionally engages in sexual intercourse or sexual penetration with another person, and the victim has reached that victim’s sixteenth birthday but has not yet reached that victim’s 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) Paragraphs (a)(3) and (a)(4) of this section do 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.

Rape in the fourth degree is a class C felony.

71 Del. Laws, c. 285, § 10; 70 Del. Laws, c. 186, § 1.;

§ 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 that victim’s sixteenth birthday and the person is at least 10 years older than the victim, or 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.

(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 or guardians, 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.

Rape in the third degree is a class B felony.

71 Del. Laws, c. 285, § 11; 70 Del. Laws, c. 186, § 1.;

Under Delaware law, a nonbiological third party usually does not have standing to petition for custody of a child unless there are exceptional circumstances involving dependency or neglect. Exceptions also are made for a stepparent seeking custody after the death or disability of a child’s custodial parent – § 733 [L1.1], [R2.1].

§ 728. Residence; visitation; sanctions.

“The Court shall determine, whether the parents have joint legal custody of the child or 1 of them has sole legal custody of the child, with which parent the child shall primarily reside and a schedule of visitation with the other parent, consistent with the child’s best interests and maturity, which is designed to permit and encourage the child to have frequent and meaningful contact with both parents … ” – § 728 [L1.1].

On 14 March 2011, the Supreme Court upheld a lower court decision stating that Carol Guest had the right to joint custody of the child she had been raising with her former partner, Lynn Smith, even though Smith was the only one who had adopted the child [R2.2].

See also: Parenting, Adoption, Fostering.

On 07 March 2006, the Delaware Supreme Court three-judge panel ruled that a lesbian who paid child support for three children born to her former partner is entitled to share custody of the children. However, the Court did not rule on the critical issue of whether the claimant was a “de facto parent” of the triplets born in 1997 to the biological parent [R2.1].

On 11 May 2011, Governor Jack Markell signed the civil unions bill into law. Effective 01 Jan 2012, the law provides legal protections and benefits for same-sex couples [R1.9].

See also: Lambda Legal & Equality Delaware FAQ: “Delaware Civil Union Law” [D1.8].

On 08 May 2011, Governor Jack Markell was expected to sign the civil unions bill into law on 11 May 2011 [R1.7].

On 14 April 2011, on a 26–15 vote, the House approved bill SB30 authorizing same-sex civil unions. Democratic Governor Jack Markell says he looks forward to signing the measure into law to take effect 01 January 2012 [R1.6].

Previously:

On 13 April 2011, the House Administration Committee released bill SB30 that would allow same-sex couples to enter into civil unions and recognize out-of-state legal relationships, clearing the way for it to be considered by the full House [R1.5].

On 07 April 2011, the Senate voted 13–6 passing bill SB30 that would establish civil unions for same-sex couples. The Bill hs been assigned to the House Administration Committee [R1.4].

On 30 March 2011, a Senate committee decided to send the bill (SB30) to the full Senate for a vote on whether to establish civil unions [R1.3].

On 22 March 2011, Bill SB30 to permit same-sex couples to enter into a civil unions was unveiled and is backed by Governor Jack Markell [L1.2], [R1.1]. If passed, the Bill would also recognise civil unions entered into elsewhere that would meet Delaware eligibility [L1.2].

On 19 June 2013, gender identity and expression was added to state anti discrimination laws [R1.9].

Previously:

The Delaware Code, Title 6, Chapter 45, Equal Accommodations makes unlawful discrimination on the ground of “sexual orientation” in places of public accomodations [L1.8].

The Delaware Code, Title 19. Chapter 7. Employment Practices. Subchapter II makes unlawful discrimination on the ground of “sexual orientation” in employment [L1.7].

In July 2003, it was expected that a bill which would add the words “sexual orientation” to state laws prohibiting discrimination in employment, public accommodations, such as hotels and restaurants and in getting housing and insurance, would have to wait until January 2004 for consideration by the Senate, but it appears to have at least a fighting chance at receiving a vote from the full Senate [R1.6].

In December 2002, the Bill’s sponsor, Rep. William A. Oberle Jr. R-Newark, said there may be no point in introducing the measure again when legislators return in January 2003 if it could not pass [R1.5].

In March 2002, House Bill 99, which would add the words “sexual orientation” to state laws prohibiting discrimination in employment, public accommodations, such as hotels and restaurants, and in getting housing and insurance, stalled in the state Senate committee, whose chairman, Sen. Robert L. Venables Sr., D-Laurel, opposes the measure [R1.4].

In August 2001, Delaware state adopted a policy of not discriminating in state employment on the basis of sexual orientation [R1.3].

On 27 March 2001, the state house of representatives voted 21–20 to pass a bill banning antigay bias in employment and housing [R1.2].

In December 2000, Delaware governor Tom Carper issued an executive order banning antigay bias in the executive branch of state government, covering employees in cabinet departments and agencies that fall under the governor’s authority [R1.1].

On 12 November 2014, District Judge Richard G Andrews addressed the assertions of Younes Kabbaj that he was nominated to the bench by Senators who advocate on behalf of the homosexual lobby and that accordingly the Judge should recuse himself from the case for bias against the plaintiff derived from “a religious affinity with the ‘homosexual religion’” or having the appearance of lack of impartiality, denying the recusal motions [C2.2], [R2.1].

In 1993, the state supreme court issued its own nondiscrimination policy for the judicial branch [R1.2].

On 12 May 2011, Governor Jack Markell signed Delaware’s civil unions bill into law – a law that, effective 01 January 2012, will provide legal protections and benefits for same-sex couples [R1.2].

The Delaware Code does not recognise a same-sex partner as a “spouse” or as a person entitled to any interest in an intestate estate [L1.1]

On 19 June 2013, Governor Jack Markell signed into law a bill aimed at protecting his state’s transgender residents by adding gender identity and expression to the state’s anti-discrimination and hate crimes laws [R1.2].

On 06 June 2013, the Senate approved 11-7 Senate Bill 97 that would add gender identity and expression to the state’s anti-discrimination and hate crimes law. The House Administration Committee is scheduled to hold a hearing on SB 97 on June 12 [R1.1].

On 19 June 2013, gender identity and expression was added to state hate crimes laws [R1.3].

In 1997, hate crimes based on sexual orientation became considered an aggravating circumstance [R1.2].

Delaware Criminal Code, Title 11, Chapter 5. Specific Offences, Subchapter VII Offenses Against Public Health, Order and Decency [L1.1].

§ 1304. Hate crimes; class A misdemeanor, class G felony, class F felony, class E felony, class D felony, class C felony, class B felony, class A felony.

(a) Any person who commits, or attempts to commit, any crime as defined by the laws of this State, and who intentionally:

(1) Commits said crime for the purpose of interfering with the victim’s free exercise or enjoyment of any right, privilege or immunity protected by the First Amendment to the United States Constitution, or commits said crime because the victim has exercised or enjoyed said rights; or

(2) Selects the victim because of the victim’s race, religion, color, disability, sexual orientation, national origin or ancestry, shall be guilty of a hate crime. For purposes of this section, the term “sexual orientation” means heterosexuality, bisexuality, or homosexuality.

(b) Hate crimes shall be punished as follows:

(1) If the underlying offense is a violation or unclassified misdemeanor, the hate crime shall be a class A misdemeanor;

(2) If the underlying offense is a class A, B, or C misdemeanor, the hate crime shall be a class G felony;

(3) If the underlying offense is a class C, D, E, F, or G felony, the hate crime shall be one grade higher than the underlying offense;

(4) If the underlying offense is a class A or B felony, the hate crime shall be the same grade as the underlying offense, and the minimum sentence of imprisonment required for the underlying offense shall be doubled.

70 Del. Laws, c. 138, § 1; 70 Del. Laws c. 186, § 1; 71 Del. Laws, c. 175, §§ 1, 2.;

On 23 July 2018, Governor John Carney signed SB65 into law. The legislation protects Delaware’s LGBTQ youth from the dangerous and debunked practice of so-called ”conversion” or ”reparative” therapy [R1.1]

In 1973, consensual sex between same-sex couples became lawful [R1.1].

The 3rd Circuit U.S. Court of Appeals in Philadelphia declared that people have a constitutional right to protect the privacy of their sexual orientation [R2.1].

The 3rd Circuit’s ruling carries legal authority in Pennsylvania, New Jersey, Delaware and the Virgin Islands, the areas covered by the court [R2.1].

On 09 June 2016, the Senate gave unanimous final legislative approval to HB 320, a bill removing homosexuality and lesbianism from the definition of misconduct serving as grounds for divorce. The measure now goes to Democratic Gov. Jack Markell [R1.7].

On 07 May 2013, Bill HB75 legalizing same-sex unions passed the state Senate on a 12 to 9 vote and was signed by Governor Jack Markell. The law comes into effect 01 July 2013, when existing civil unions will cease to exist and be converted to marriages by July 2014 [R1.6].

Previously:

In 1996, the law in Delaware was amended to prohibit marriages between same-sex couples.

Delaware Code, Title 13 Domestic Relations, Chapter 1. Marriage, Subchapter I. General Provisions [L1.5]

§ 101. Void and voidable marriages.

(a) A marriage is prohibited and void between a person and his or her ancestor, descendant, brother, sister, uncle, aunt, niece, nephew, first cousin or between persons of the same gender.

On 01 May 2013, legislation to legalize same-sex marriage in Delaware (HB 75) cleared the Senate Executive Committee (4 of 6 members voting favourably), paving the way for a final legislative vote on the measure Tuesday (07 May) [R1.4].

On 23 April 2013, the House voted 23-18 to pass marriage equality bill HB75 that now moves on to the State Senate for consideration [R1.3].

On 17 April 2013, the House Administration Committee approved the gay marriage bill HB75 with a 4-1 vote sending it to a House floor vote [R1.2] (expected 23 April 2013).

On 11 April 2013, the state’s political leadership, including the governor Jack Markell, lieutenant governor Matt Denn, Speaker of the House Beau Biden, and Senate President Pro Tempore Patricia Blevins, announced the introduction of marriage equality legislation [R1.1].

Adoption

Delaware law allows “an unmarried person or a husband and wife jointly” to adopt children [R2.1]. Quaere: “unmarried persons”. See [R2.1].

Delaware Code, Title 13 Domestic Relations, Chapter 9. Adoption, Subchapter I. Minors [L1.3].

§ 903. Persons eligible to petition to adopt.

An unmarried person or a husband and wife jointly, who are not legally separated or who are not living apart from each other, or a divorced or legally separated person, being a resident of the State at the time of filing the petition or with whom a child has been placed for adoption under § 904 of this title, and being over 21 years of age, may petition the Family Court for an order authorizing the petitioner or petitioners to adopt a child not his, hers or theirs…

Delaware Code, Title 13 Domestic Relations, Chapter 9. Adoption, Subchapter II. Persons 18 Years of Age or Over [L1.2]

§ 951. Who may adopt.

Any person, or any husband and wife jointly, desiring to adopt any person or persons upwards of 18 years of age, shall file a petition in the Family Court of the county in which the petitioner or the person to be adopted resides.

Fostering:

Delaware Code, Title 13 Domestic Relations, Chapter 23. Guardianship of a Child [L1.1]

§ 2302. Definitions –

(9) “Foster parent” means an individual or couple who has been approved by the Department or a licensed agency to provide foster care in exchange for foster care payments provided by the Department or a licensed agency.

On 14 March 2011, the Delaware Supreme Court issued a ruling upholding the right of a woman to be identified as a “de facto” parent of a child she had been raising with her former same-sex partner – a child the partner adopted but that the woman herself did not. The ruling was based on the amending of a state law to expand the state’s definition of a “parent” to give full, equal rights to lesbian and gay parents who may not have biological or adoptive ties to their children [C2.4], [R2.3].

In February 2002, family court commissioner John Carrow ruled that a lesbian being sued for child support by her former partner should be considered a parent, even though she has no biological connection to the child and both women should be considered mothers to a 4-year-old boy they chose to have through in-vitro fertilization [R2.2].

If the decision is upheld on appeal, it will set a precedent in Delaware by expanding who can be held legally responsible for caring for a child, experts said.

In October 2001, Family Court Chief Judge Vincent Poppiti allowed a gay couple to adopt children together, noting that the statute can be read to include “unmarried persons” because Delaware law allows singular words to be read as plural and vice versa [R2.1].

On 09 March 2012, the Delaware Superior Court in Wilmington issued a stipulated order that respects the private communications of a Delaware same-sex couple married in California prior to the effective date of Delaware’s civil union law. The case was brought to quash a subpoena to the extent it would call for disclosure of confidential communications between the spouses, including communications before the civil union law took effect [C1.3], [R1.2].

In November 2001, the 3rd Circuit U.S. Court of Appeals in Philadelphia declared that people have a constitutional right to protect the privacy of their sexual orientation [R1.1].

The 3rd Circuit’s ruling carries legal authority in Pennsylvania, New Jersey, Delaware and the Virgin Islands, the areas covered by the court [R1.1].

§ 763. Sexual harassment; unclassified misdemeanor. [L1.2]

A person is guilty of sexual harassment when:

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

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

Sexual harassment is an unclassified misdemeanor.

§ 1311. Harassment; class A misdemeanor. [L1.1].