Lewdness in Delaware: Laws, Penalties, and Legal Defenses
Explore how Delaware law defines and handles lewd conduct, including legal boundaries, consequences, and defense considerations.
Lewdness charges in Delaware can carry serious consequences, yet the specific actions constituting these offenses and their legal handling are often unclear. While sometimes stemming from behavior perceived as minor, such charges can lead to criminal prosecution and lasting effects.
Understanding Delaware’s approach to lewd conduct is crucial for anyone facing such allegations. This overview examines the relevant laws, potential penalties, court processes, and defenses.
Statutory Provisions
Delaware law addresses lewd conduct primarily within Title 11 of the Delaware Code, the state’s main body of criminal law. Offenses must be specifically defined by statute to be prosecuted.
Laws concerning public decency, including lewdness, are grouped under Title 11, Chapter 5, Subchapter VII (“Offenses Against Public Health, Order and Decency”). The central statute is Section 1341, which defines the offense of “Lewdness.”1Justia Law. 11 Delaware Code § 1341 – Lewdness
Related conduct is addressed elsewhere in the code. Sections 764 and 765 define “Indecent exposure in the second degree” and “Indecent exposure in the first degree,” respectively.2Justia Law. 11 Delaware Code § 764 – Indecent Exposure in the Second Degree3Justia Law. 11 Delaware Code § 765 – Indecent Exposure in the First Degree These statutes, while distinct from Section 1341, contribute to the legal framework governing acts considered offensive due to public exposure, particularly concerning minors in first-degree cases.
Types of Lewd Conduct
Delaware law distinguishes several types of lewd conduct, focusing on acts performed publicly or where likely to offend others.
Public Indecency
Public indecency generally falls under “Lewdness,” as defined in Title 11, Section 1341. A person commits this offense by performing a “lewd act” in a public place or under circumstances where they know the act is likely to be seen by others who would be affronted or alarmed. The law does not provide an exhaustive list of “lewd acts,” allowing for interpretation based on context and community standards. The key elements are the lewd nature of the act and its public visibility or likelihood of causing offense to unwilling observers.
Indecent Exposure
State law details two degrees of indecent exposure in Title 11, Sections 764 and 765. Second-degree indecent exposure (Section 764) involves a male exposing genitals or buttocks, or a female exposing genitals, breasts, or buttocks, knowing the conduct is likely to cause affront or alarm. First-degree indecent exposure (Section 765) involves similar exposure but specifically directed towards someone under 16, under circumstances where the actor knows the conduct is likely to cause affront or alarm. The primary difference is the age of the person subjected to the exposure.
Obscene Acts
While Section 1341 covers general public lewdness, Section 1361 addresses “Obscenity,” often concerning materials or performances.4FindLaw. Delaware Code Title 11 § 1361 – Obscenity Section 1364 defines conduct as obscene if it meets three criteria: it appeals to prurient interest by community standards; it depicts patently offensive sexual acts, masturbation, excretory functions, or lewd genital exhibitions; and it lacks serious literary, artistic, political, or scientific value when taken as a whole. While primarily aimed at obscene materials, this definition can inform what constitutes a “lewd act” under Section 1341 if performed publicly.
Penalties
Convictions for lewdness or indecent exposure in Delaware carry penalties outlined in Title 11, Chapter 42, varying by offense classification.5Delaware Code Online. Title 11, Chapter 42 – Classification of Offenses; Sentences
“Lewdness” (Section 1341) is a class B misdemeanor. A conviction can lead to up to 6 months of incarceration and a fine up to $1,150, according to Section 4206(b).
“Indecent exposure in the second degree” (Section 764) is an unclassified misdemeanor. Under Section 4206(c), if no specific sentence is defined, penalties can include up to 30 days of incarceration and a fine up to $575.
“Indecent exposure in the first degree” (Section 765), involving exposure towards a minor, is a class A misdemeanor. Section 4206(a) allows for up to 1 year of incarceration and a fine up to $2,300. Courts may also impose restitution or other conditions for any of these offenses.
Court Procedure
Cases involving lewdness or indecent exposure in Delaware proceed through the state’s judicial system, typically starting in the Justice of the Peace Court or the Court of Common Pleas, as these are misdemeanors. The process begins after an arrest or the issuance of a summons.
The first step is the initial appearance or arraignment, usually held within 24-48 hours of arrest.6Delaware Courts. Arraignment in the Court of Common Pleas The defendant is formally informed of the charges (e.g., Lewdness, Indecent Exposure Second Degree, or Indecent Exposure First Degree) and advised of their rights, including the right to counsel. Bail conditions may be set or reviewed.
Following arraignment, the defendant enters a plea: guilty, not guilty, or nolo contendere (no contest). A not guilty plea moves the case to the pre-trial phase. This stage involves discovery, where both sides exchange evidence. Pre-trial conferences may occur to discuss the case, and plea negotiations might take place between the defense and prosecution.
If no plea agreement is reached, the case goes to trial, often in the Court of Common Pleas.7Delaware Courts. Misdemeanor Trial in the Court of Common Pleas Defendants typically have the right to a trial by judge or jury. The prosecution must prove guilt beyond a reasonable doubt for every element of the offense. The defendant is presumed innocent and has the right to present a defense. If found guilty, the court proceeds to sentencing. Decisions from the Court of Common Pleas can generally be appealed to the Superior Court.
Potential Defenses
Individuals charged with lewdness or indecent exposure in Delaware may have several defenses available, depending on the case specifics. Defenses often focus on challenging the prosecution’s evidence regarding the required elements of the offense.
A key element for both lewdness (Section 1341) and indecent exposure (Sections 764, 765) is the defendant’s state of mind – specifically, that they knew their conduct was likely to be observed by others who would be affronted or alarmed, or knew it was likely to cause affront or alarm. A defense could argue the conduct was accidental or unintentional, or that the defendant did not realize the likelihood of causing offense.
The circumstances of the alleged act are also critical. For lewdness, the act must occur in a “public place” or where observation by offended parties is likely. A defense might argue the location did not qualify as public or that the defendant had a reasonable expectation of privacy. Whether the act itself qualifies as “lewd” can also be contested, as the term is open to interpretation.
For indecent exposure, defenses can challenge whether the alleged exposure actually occurred or involved the specific body parts mentioned in the statute. As with lewdness, the defense can dispute that the person knew the conduct was likely to cause affront or alarm. For first-degree indecent exposure (Section 765), which requires exposure towards someone under 16, a defense could contest the observer’s age or argue the defendant was reasonably mistaken about it.
A mistake of fact, as described in Title 11, Section 304, might serve as a defense if it negates the required “knowing” mental state (e.g., mistakenly believing one was in private).8Delaware Code Online. Title 11, Chapter 3 – General Provisions Concerning Offenses However, ignorance of the law itself is generally not a defense. Any defense requires credible supporting evidence.
Collateral Consequences
A conviction for lewdness or indecent exposure in Delaware can trigger consequences beyond court-imposed fines or jail time. These collateral consequences are civil limitations or disqualifications stemming from the conviction itself.
Employment prospects can be affected. While Delaware’s “ban-the-box” law limits when public employers can inquire about criminal history, private employers often have more leeway, subject to federal laws like the Fair Credit Reporting Act. A conviction for lewdness or indecent exposure, even a misdemeanor, appears on background checks and can hinder employment, particularly in roles involving public interaction or vulnerable populations.
Professional licensing may also be impacted. Under Delaware law (Title 24 and Title 29, Section 8735(x)), licensing boards can deny or revoke licenses if a conviction is “substantially related” to the profession.9Delaware Code Online. Title 29, § 8735 – Division of Professional Regulation Fields like teaching, childcare, healthcare, and law enforcement often involve high public trust, and boards may deem these convictions relevant. The Delaware Fair Chance Licensing Act aims to reduce barriers but allows denial if the offense is substantially related and poses an unreasonable risk.
Sex offender registration is a significant potential consequence. Delaware’s registration laws are in Title 11, Sections 4120-4123. Standard convictions for Lewdness (Section 1341) or Indecent Exposure Second Degree (Section 764) do not automatically require registration according to Section 4121(a)(4). However, Indecent Exposure First Degree (Section 765), involving a minor, is listed as a Tier I registerable offense, typically requiring 15 years of registration with annual verification.10Delaware Code Online. Title 11, § 4121 – Registration Requirements Failure to register is a felony. Registration carries substantial stigma and imposes ongoing requirements.
Other areas like housing access can also be affected by a criminal record. While Delaware has expanded expungement eligibility, including automatic “Clean Slate” expungement for some offenses after a waiting period (effective August 2024), the conviction remains public until expunged, potentially impacting personal relationships and community standing.11Delaware General Assembly. House Bill 404 (Clean Slate Act) These long-term effects highlight the seriousness of such convictions.
