Delaware Sexting Laws: Legal Consequences and Penalties
Overview: A High-Risk State for Teens
Delaware law does not distinguish between a predatory adult sharing illicit images and two teenagers in a relationship sharing selfies. Because there is no specific "Romeo and Juliet" sexting statute for fully nude images, prosecutors have the discretion to charge minors with Dealing in Child Pornography or Sexual Exploitation of a Child.
This means a high school student who sends a nude photo to their boyfriend or girlfriend could theoretically face the same legal category of charges as an adult predator. While the juvenile justice system often focuses on rehabilitation, the statutory starting point is a felony.
Child Pornography & Exploitation Statutes
When sexting involves images of a person under 18, Delaware prosecutors typically utilize three main statutes found in Title 11, Chapter 5, Subchapter V of the Delaware Code.
Dealing in Child Pornography (§ 1109)
Under 11 Del. C. § 1109, a person is guilty of dealing in child pornography if they:
- Manufacture, publish, reproduce, sell, exchange, or distribute any child pornography.
- Possess child pornography with the intent to distribute or exchange it.
Classification: Class B Felony (2 to 25 years in prison). If the act involves only "partial nudity" (and the defendant is over 18), it may be reduced to a Class D Felony.
Possession of Child Pornography (§ 1111)
Under 11 Del. C. § 1111, merely having an explicit image of a minor on your phone or computer is a crime.
- Classification: Class F Felony (up to 3 years in prison).
- Quantity Factor: Possessing 25 or more images raises the charge to a Class E Felony. Possessing 100 or more is a Class D Felony.
Sexual Exploitation of a Child (§ 1108)
Under 11 Del. C. § 1108, a person is guilty if they allow, encourage, or induce a child to engage in any "prohibited sexual act" for the purpose of creating a visual depiction.
- This statute effectively criminalizes the act of taking or asking for the photo.
- Classification: Class B Felony (2 year minimum mandatory sentence).
The "Partial Nudity" Exception (§ 1110A)
Delaware does have one specific statutory protection for minors, but it is very narrow. Under 11 Del. C. § 1110A, a person under the age of 18 cannot be convicted of Dealing in Child Pornography (§ 1109) or Sexual Exploitation (§ 1108) IF:
- The underlying image depicts ONLY "partial nudity."
What is "Partial Nudity"?
Defined in 11 Del. C. § 1100, "partial nudity" generally refers to the showing of the female breast (below the top of the nipple) or buttocks with less than a fully opaque covering.
Crucial Warning: This exception does NOT apply if the image depicts:
- Genitals (even if covered by transparent material).
- Sexual intercourse or other sexual acts.
- Masturbation.
- Lewd exhibition of the genitals.
If a minor shares an image involving any of the above, § 1110A offers no protection, and they can be charged with a felony.
Penalties for Minors
Because sexting charges fall under felony statutes, the potential penalties are severe. However, minors are typically handled in Family Court rather than Superior Court.
Juvenile Adjudication
Instead of a "conviction," a minor is "adjudicated delinquent." Penalties can include:
- Probation: Supervised release with strict conditions (no internet access, no smartphone).
- Treatment Programs: Mandatory counseling for sexual behavior problems.
- Detention: Placement in a juvenile facility (Stevenson House or Ferris School).
- Sex Offender Registry: The judge has discretion to order registration for juveniles, depending on the severity of the offense (Tier I, II, or III).
Adults Sexting With Minors
For adults (18+), there are no exceptions. Sending or receiving explicit images from a minor is a serious felony.
- Solicitation: Asking a minor for photos can be charged as Sexual Solicitation of a Child (11 Del. C. § 1112A), a Class B Felony.
- Possession: Simply having the image is a Class F Felony (§ 1111).
- Distribution: Sending the image to others is a Class B Felony (§ 1109).
Adults convicted of these crimes face mandatory prison time and lifetime sex offender registration.
Revenge Porn Laws (Violation of Privacy)
Delaware addresses non-consensual image sharing (revenge porn) under its Violation of Privacy statute, 11 Del. C. § 1335.
A person is guilty of Violation of Privacy if they knowingly transmit or publish visual material depicting another person engaged in a sexual act or displaying their genitals/intimate parts when:
- The depicted person had a reasonable expectation of privacy.
- The depicted person did not consent to the transmission or publication.
Penalties
- Standard Offense: Class A Misdemeanor (up to 1 year in jail, $2,300 fine).
- Aggravated Offense: If the image is distributed to a large audience (like posting it on social media or a website), it becomes a Class G Felony (up to 2 years in prison).
Sex Offender Registration
Delaware has a three-tiered sex offender registry. Convictions for Dealing in Child Pornography or Sexual Exploitation generally require registration.
- Adults: Mandatory registration, often for Tier II (25 years) or Tier III (Life).
- Juveniles: The court determines if registration is required based on the minor's age, criminal history, and risk to the community. However, unlike some states with "teen sexting" laws that explicitly ban registration for first offenses, Delaware law leaves this possibility open.
Legal Defenses
Defending against sexting charges in Delaware is complex due to the lack of specific teen statutes. Common defense strategies include:
1. The § 1110A Exception
Arguing that the image in question only meets the definition of "partial nudity" and thus exempts the minor from the most serious felony charges.
2. Lack of Intent/Knowledge
Proving that the defendant did not knowingly download or possess the image (e.g., it was sent to a group chat and automatically saved without their consent).
3. Age Defense (Mistake of Age)
For adults charged with exploitation, claiming they didn't know the victim was a minor is generally NOT a valid defense in Delaware. The crime is strict liability regarding age.
More Delaware Laws
Sources and References
- Delaware Family Court(courts.delaware.gov).gov
- Delaware Volunteer Legal Services(www.dvls.org)
- National Center for Missing & Exploited Children (NCMEC)(www.missingkids.org)
- Cyber Civil Rights Initiative(www.cybercivilrights.org)
- Common Sense Media(www.commonsensemedia.org)