In any criminal prosecution, it is a defense that the victim consented to the act done, provided that the act did not involve or threaten serious physical injury and that such consent negatives an element of the offense.66
In any criminal prosecution for an offense involving or threatening physical injury, it is a defense that the victim consented to the infliction of physical injury of the kind done or threatened, provided that (i) the physical injury done or threatened by the conduct consented to is not serious physical injury, or (ii) the physical injury done or threatened is a reasonably foreseeable hazard of joint participation in any concerted activity, athletic contest or sport not prohibited by law.67
Consent of the victim will not constitute a defense if (i) it is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense, unless the defendant believes that person is legally competent; (ii) it is given by a person who, because of youth, mental illness, mental defect or intoxication, is manifestly unable or known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; (iii) it is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or (iv) it is induced by force, duress or deception.68
It is sufficient that the victim actually consented, whether or not the defendant knew of the consent.69
66. 11 Del. C. § 451.
67. 11 Del. C. § 452.
68. 11 Del. C. § 453.
69. 11 Del. C. §§ 451, 452, commentary.
© 2010 David L. Finger