Bill Text: DE SB153 | 2015-2016 | 148th General Assembly | Draft
Bill Title: An Act To Amend The Delaware Code Relating To Crimes And Criminal Procedure Involving Children.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Passed) 2015-09-03 - Signed by Governor [SB153 Detail]
Download: Delaware-2015-SB153-Draft.html
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SPONSOR: |
Sen. Henry & Rep. Mitchell |
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Sen. Ennis; Rep. Keeley |
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DELAWARE STATE SENATE 148th GENERAL ASSEMBLY |
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SENATE BILL NO. 153 |
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AN ACT TO AMEND THE DELAWARE CODE RELATING TO CRIMES AND CRIMINAL PROCEDURE INVOLVING CHILDREN. |
Section 1. Amend §1002, Title 10 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1002. Delinquent child not criminal; prosecution limited.
Except
as provided in §1010 of this title, no child shall be deemed a criminal by
virtue of an allegation or adjudication of delinquency, nor shall a child be
charged with or prosecuted for a crime in any other court. In this Court the
nature of the hearing and all other proceedings shall be in the interest of
rather than against the child. Except as otherwise provided, there shall be no
proceedings other than appellate proceedings in any court other than this Court
in the interest of a child alleged to be dependent, neglected, or delinquent. However,
if a child reaches its eighteenth birthday prior to an adjudication on a charge
of delinquency arising from acts which would constitute a felony were the child
charged as an adult under the laws of this State, then the Family Court shall
retain jurisdiction for the sole purpose of transferring the matter to the
Superior Court for prosecution as an adult. Any such transfer under this
section shall not be subject to §1011 of this title.
Section 2. Amend §761, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§761. Definitions generally applicable to sexual offenses.
(h) "Sexual offense" means
any offense defined by §§763-780 and §§1108-1112A, 1352(2) and 1353(2)
§§763 through 780, §783(4), §783(6), §783A(4), §783A(6), §787(b)(3), §
787(b)(4), §1100A, §§1108 through 1112B, §1335(a)(6), §1335(a)(7), §1352(2),
and §1353(2), and §1361(b) of this title.
Section 3. Amend §777, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§777. Dangerous crime against a child, definitions, sentences.
(a) A "dangerous crime against a
child" is defined as means any criminal sexual conduct
against a minor under the age of 14 years as defined in §§770-773, §777A, §§
778 through 778A, or §§1108-1112A 1108 through 1112B of this
title. For purposes of this section only, and §762(a) of this title to the
contrary notwithstanding, the defendant may use as an affirmative defense that
the defendant believed that the victim of the crime was over the age of 16
years of age.
Section 4. Amend §777A, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§777A. Sex offender unlawful sexual conduct against a child.
(b) For purposes of this section, the
term "sex offender" shall mean any person registered or
required to be registered pursuant to §§4120(b)(1) and 4121(a)(4) of this
title, or the laws of any other state, the United States or any territory of
the United States means as defined in §4121(a)(4) of this title.
(d) For purposes of this section, the
term "child" shall mean means any individual who
has not reached that child's eighteenth birthday. If the underlying sexual
offense involves an offense defined by §§1108, 1109, 1110, 1111 and 1112A 1108 through 1112B of this title, the
term "child" shall also mean also means any
individual who is intended by the defendant to appear to be 14 years of age or
less. A sex offender who knowingly possesses any material prohibited by §1111
of this title is committing an offense against a child for purposes of this
section.
Section 5. Amend §1100, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1100. Definitions relating to children.
When used in this subchapter:
(2) "Child"
shall mean any individual less than 18 years of age. For the purposes of §§
1108, 1109, 1110, 1111 and 1112A and 1111 of this title, "child"
shall also mean any individual who is intended by the defendant to appear to be
14 years of age or less.
Section 6. Amend §1102, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1102. Endangering the welfare of a child; class A misdemeanor; class E or G felony.
(a) A person is guilty of endangering the welfare of a child when:
(4) The
person commits any violent felony, or reckless endangering second degree,
assault third degree, terroristic threatening, or unlawful imprisonment
second degree, or child abuse third degree against a victim, knowing
that such felony or misdemeanor was witnessed, either by sight or sound, by a
child less than 18 years of age who is a member of the person's family or the
victim's family.
Section 7. Amend §1112, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§1112. Sexual offenders; prohibitions from school zones.
(b) For purposes of this section, the following definitions shall apply:
(4) "Sexual
offender" shall mean any person who:
a. Has been
convicted in this State of the commission or attempt to commit any sexual
offense upon a child under 16 years of age under §767, §768, §769, §770, §
771, §772, §773, §776, §777, §777A, §778, §778A, §1108, §1109, §1111,
and/or §1112A of this title; or
b. Has been
discharged or paroled from a penal institution where that person was confined
because of the commission or attempt to commit 1 or more of the offenses
enumerated in paragraph (b)(4)a. of this section; or
c. Has been
adjudged guilty but mentally ill under §401 of this title or not guilty by
reason of insanity under §401 of this title for the commission or attempt to
commit 1 or more of the offenses enumerated in paragraph (b)(4)a. of this
section; or
d. Has been
convicted in any other state of any offense which, if committed or attempted in
this State, would have been punishable as 1 or more of the offenses enumerated
in paragraph (b)(4)a. of this section. "Sex offender" means as defined in §4121(a)(4) of this title.
Section 8. Amend §3513, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§3513. Hearsay exception for child victim's or witness's out-of-court statement of abuse.
(a) An
out-of-court statement made by a child victim or witness who is under 11 years
of age at the time of the proceeding concerning an act that is a material
element of the offense relating to sexual abuse, physical injury, serious
physical injury, death, abuse or neglect as described in any felony delineated
in subpart A, B or D of subchapter II of Chapter 5 of this title, or in any of
the felonies delineated in §782, §783, §783A, §787, §1100A, §1102,
§1108, §1109, §1111 or §1112A §1111, §1112A, §1112B, §
1335(a)(6), §1335 (a)(7), §1353(2), or §1361(b) of this title or in any
attempt to commit any felony delineated in this paragraph that is not otherwise
admissible in evidence is admissible in any judicial proceeding if the
requirements of subsections (b)-(f) (b) through (f) of this
section are met.
Section 9. Amend §4121, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§4121. Community notification of sex offenders on probation, parole, conditional release or release from confinement.
(a) When used in this subchapter:
(4) "Sex offender" means any person who is, or has been:
a. Convicted of any of the offenses specified in §§765
through 780, §787(b)(3)-(4), §1100A, §§1108 through 1112A 1112B,
§1335(a)(6), §1335(a)(7), §1352(2), §1353(2) or §1361(b) of this title, or
of any attempt or conspiracy to commit any of the aforementioned offenses; or
c. Convicted or adjudicated delinquent of any offense specified in the laws of another state, commonwealth, territory, or other jurisdiction of the United States requiring registration in that jurisdiction, or a conviction or adjudication in any foreign government, which is the same as, or equivalent to, any of the offenses set forth in paragraph (a)(4)a., (a)(4)b. or (a)(4)d. of this section; or convicted of any federal or military offense enumerated in 42 U.S.C. §16911(5)(A)(iii) and (iv); or
d. Convicted or adjudicated delinquent of a violation of §783(4) or §783(6) or §783A(4) or §783A(6) of this title; or
e. Charged by complaint, petition, information or
indictment with any of the offenses set forth in paragraph (a)(4)a., (a)(4)b.,
(a)(4)c. or (a)(4)d. of this section, and who thereafter pleads guilty to any
offense included in the originally charged offense, as provided in §206 of
this title, if the person is thereafter designated as a sex offender by the
sentencing judge pursuant to subsection (e) (c) of this section;
or
f. Convicted or adjudicated delinquent of any of the offenses set forth in paragraph (a)(4)a., (a)(4)b., (a)(4)c. or (a)(4)d. of this section, or of any offense which is the same as or equivalent to such offenses as the same existed and were defined under the laws of this State existing at the time of such conviction; or
(d) Sex offenders shall be assigned to a Risk Assessment Tier as follows, unless pursuant to §4123 of this title, the Family Court has not required a juvenile adjudicated delinquent of a sex offense to register:
(1) Risk Assessment Tier III. — Any sex offender convicted or adjudicated delinquent of any of the following offenses shall be designated by the court to Risk Assessment Tier III:
b. Kidnapping in the first or second degree, if the
a purpose of the crime was to facilitate the commission of any
offense set forth in paragraph (a)(4) or (a)(6) [sic] of this section take
or entice any child less than 18 years of age from the custody of the child's
parent, guardian, or lawful custodian, where the defendant is not a parent,
step parent parent, or guardian of the victim, to inflict
physical injury upon the victim, or to violate or abuse the victim sexually;
or
Section 10. Amend §9401, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§9401. Definitions.
As used in this chapter, unless the context otherwise requires:
(2) "Crime'' means an act or omission committed by a person, whether or not competent or an adult, which, if committed by a competent adult, is punishable by incarceration and which violates 1 or more of the following sections of this title:
OFFENSES RELATING TO CHILDREN AND INCOMPETENTS
1101. Abandonment of child; class A misdemeanor.
1102. Endangering the welfare of a child; class A misdemeanor.
1103. Child abuse in the third degree; class A misdemeanor.
1103A. Child abuse in the second degree; class G felony.
1103B Child abuse in the first degree; class B felony.
1105. Crime against a vulnerable adult; class A misdemeanor or higher.
1108. Sexual exploitation of a child; class B felony.
1112A.
Sexual Solicitation solicitation of a Child child;
class C felony; class B felony.
1112B. Promoting sexual solicitation of a child; class C felony; class B felony.
SYNOPSIS
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This Act provides clarity by eliminating language struck down by the courts, making conflicting definitions and offenses consistent, and correcting oversights of language changes made necessary by previous legislation.
Section 1 eliminates language that the Delaware Supreme Court struck down in Hughes v. State, 653 A.2d 241 (1994) for equal protection and due process violations.
Section 2 through 7 makes the description of sex offenses and sex offenders in Chapter 5 of Title 11 consistent with the most complete list in §4121(a)(4) of Title 11; adds §1112B of Title 11, promoting sexual solicitation of a child, to those provisions defining the offense of "dangerous crime against a child" and "sex offender unlawful conduct toward a child"; clarifies the definition of "child"; and adds the child abuse misdemeanor to those offenses that if done in sight or hearing of a related child qualifies as endangering the welfare of a child.
Section 8 adds the following offenses often targeting children to those considered by Chapter 35 of Title 11 to warrant the admissibility of out-of-court statements by child victims under 11 years old regarding acts constituting such offense:Human Trafficking, Dealing in Children, Violation of Privacy, Promoting Prostitution of a Person less than 18 years old, Promoting Prostitution of a Person Less than 16 years old, and Obscenity to a Person less than 18 years old.
The offenses currently addressed by Chapter 35 of Title 11 are: Unlawful Imprisonment in the First Degree, Kidnapping in the First and Second Degrees, Endangering the Welfare of a Child, Sexual Exploitation of a Child, Dealing in Child Pornography, Possession of Child Pornography, and Sexual Solicitation of a Child.
Section 9 clarifies the offenses that require community notification of a sex offender and that, for this purpose, an adjudication for such an offense has the same consequence as conviction; makes a technical correction referencing the appropriate subsection under which one would be designated a sex offender; and describes rather than references the elements of a kidnapping offense that qualify the offender for a Tier III sex offender status.
Section 10 adds Child Abuse in the First, Second, and Third Degrees and Promoting Sexual Solicitation of a Child to the crimes listed in the Victims' Bill of Rights and makes a technical correction to Sexual Solicitation of a Child in the same list. This Act also makes technical corrections to conform existing law to the guidelines of the Delaware Legislative Drafting Manual. Author: Senator Henry |
