With Carney's signature, Delaware closes sexual assault loophole

WILMINGTON – Delaware has become the latest state to close an implicit loophole that could allow law enforcement and corrections officers to use consent as a defense for sexual assault of a person in custody. 

Rape is illegal in all 50 states, but troubling reports – including a recent incident in New York – have led more than a dozen states to clarify statutes that failed to establish unconditional sexual boundaries between police and/or corrections personnel and people in their custody. 

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Senate Substitute 1 for Senate Bill 169 eliminates that defense in Delaware by explicitly defining sexual contact with a person in custody as non-consensual, expanding the statute to include police officers, making sexual contact with a person in custody a class G felony, and upgrading sexual intercourse with a person in custody to a class F felony.

The bill’s prime sponsor says the issue should be a matter of common sense.

​“Regardless of the perpetrator or the victim, rape is wrong – full stop,” said Senate Majority Whip Nicole Poore, D-New Castle. “Nobody should become a victim because their attacker abused their own authority. Unfortunately, common sense on this issue isn’t enough when the law doesn’t back it up. I was surprised to learn that Delaware had not closed this loophole and I’m glad this was brought to my attention. I’m relieved that it’s been corrected it should also remind us that rape is an everyday problem and that we have to stay vigilant about awareness, prevention, and support for all survivors.”

A Cato Institute report released in 2010 cited sexual violence as the second-most frequently reported form of police misconduct, after excessive force.


A November 2015 Associated Press report found that from 2009 to 2014 roughly 1,000 law enforcement officials in the United States had lost their badges for offenses like sexual misconduct, possession of child pornography, or rape. The AP noted at the time that the reported statistic was “unquestionably an undercount” because some states (including New York and California) reported no records, while states that did report only included records for officers whose licenses to work in law enforcement were revoked.

“Women in law enforcement custody deserve to have their rights protected like any other Delaware woman,” said House sponsor Rep. Debra Heffernan, D-Brandywine Hundred. “We have worked hard to protect women in all facets of their lives and we continue to do so with this legislation.” ​

The General Assembly passed SS 1 for SB 169 unanimously.  The bill becomes effective today.