In the state of Delaware, their penal code defines what “consent” is NOT- but fails to correctly define what consent actually IS, #FGKIA– Freely Given Knowledgeable and Informed Agreement.
By providing a laundry list of recognized bad behaviors that can be prosecuted, rather than simply holding everyone accountable for securing consent in ALL sexual conduct, Delaware’s laws give a free pass to sexual predators who prey on victims in ways that don’t appear on their list.
Since I’ll be delivering a TEDx Talk in Delaware on May 20th, I wanted to make sure the realities of their penal code were easy to find for folks in the state. But for everyone, it’s helpful to see how different each state’s laws actually are.
You can search for your state in the keyword section of this webpage. Don’t see it? Ask me, I’ll post it for you.
Everyone can help shut down rape mentality by contacting your legislators and asking them to sign the following language into law:
Non-consensual sex is sexual assault:
Consent is freely given, knowledgeable and informed agreement.
You can also read Combating Romance Scams, Why Lying to Get Laid Is a Crime! and forward it to your legislators. If you do so electronically, the price of the book is only $3.99, and you can forward it for free! The “Why Donate” button on this page enables you to easily forward multiple copies of the paperback to several legislators.
Click here for the Delaware Laws on Consent and sexual assault…or read the following highlights. My notes are in italics.
(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;
(This means if they are petrified and freeze, their “refusal” would not be “known” to the assailant.)
(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;
(This passage fails to recognize that a victim will suffer the same defilement even when they are not hampered by a mental condition, but rather, their mental processes have been deliberately obscured by the offender.)
(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.; or
(This clause indicates that Delaware properly applies the concept of consent in this circumstance, and provides justice when this, and only this, type of fraud occurs. What about all the other forms fraud can take that harm victims in the exact same way?)
(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.
(here again, does “other means” include lying to them?)
Here are the laws a sexual predator who lies to get laid could possibly be prosecuted under:
§ 763 Sexual harassment; unclassified misdemeanor.
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.
(Finding out that the actor has tricked you into sex is horribly offensive and alarming, even though the victim does not recognize that offense or alarm at the moment it is taking place.)
Sexual harassment is an unclassified misdemeanor.
§ 767 Unlawful sexual contact in the third degree; class A misdemeanor.
A person is guilty of unlawful sexual contact in the third degree when the person has sexual contact with another person or causes the victim to have sexual contact with the person or a third person and the person knows that the contact is either offensive to the victim or occurs without the victim’s consent.
(Only the explanation of inducement by fraud by medical or religious leaders recognizes that consent does not occur when the victim is generally defrauded of their agreement.)
Unlawful sexual contact in the third degree is a class A misdemeanor.
§ 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;
(Here we are again using the term “consent” without clearly defining that consent is freely, given, knowledgeable and informed agreement.) or
b. The victim has not reached that victim’s sixteenth birthday.
(b) Paragraph (a)(3) 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.
Rape in the fourth degree is a class C felony.
Delaware’s definition of “consent”
In defining “consent,” Delaware fails to take into account that a person’s actions can indicate that they consent, when they, indeed do not, because they have been tricked into such agreement. In any crime involving fraud, the victim, indeed, agrees, but such agreement does not rise to the level of consent because it is actually not freely given. Rather it is induced through duplicity that the victim is unaware of at the time. Their agreement, when tricked, is assent, but not consent. It is neither knowledgeable or informed.
“Consent” means words or overt actions indicating a freely given agreement to the sexual act or contact in
question. Lack of verbal or physical resistance or submission by the victim, resulting from the use of force,
threats, or coercion by the defendant shall not constitute consent. D.C. Code § 22-3001.
When the State of Delaware recognizes what consent really means in their penal code, everyone engaging in sex will be protected under their laws. Without doing so, the State is complicit in providing an environment where defilement takes place with impunity in some cases.
Contact your State and Federal Legislators. Tell them: “I want you to enact this law…..”
Non-consensual sex is sexual assault.
Consent is Freely Given, Knowledgeable and Informed Agreement.
This law should be applied to all sexual conduct in Delaware, including conduct where the offender tricks the person. Delaware’s consent provision does not take into account that the victim is entitled to be “knowledgeable and informed.” Any agreement that lacks appropriate knowledge and information is not consent! Delaware’s laws show that lawmakers who drafted their legislation did not know the distinction between assent and consent, and had the concept that all agreement qualifies as consent. It does not.
US Senator Thomas Carper is running for re-election this year. Let him know where you stand on this issue!
Click here to locate and reach all federal and state legislators for Delaware
For more information on CONSENT click on the following titles: