2006 Delaware Code - Subchapter V — Offenses Relating to Children and Incompetents

§ 1100. Dealing in children; class E felony.

A person is guilty of dealing in a child if the person intentionally or knowingly trades, barters, buys or negotiates to trade, barter, buy or sell a child under the age of 18; provided, however, that payment of reasonable medical expenses related to the pregnancy and reasonable room and board to the providers of those services in conjunction with placement of a child for adoption in accordance with § 904(a)(2) of Title 13 shall not constitute a violation of this section.

Dealing in a child is a class E felony. (67 Del. Laws, c. 100, § 1; 70 Del. Laws, c. 186, § 1.)

§ 1101. Abandonment of child; class A misdemeanor.

A person is guilty of abandonment of a child when, being a parent, guardian or other person legally charged with the care or custody of a child less than 16 years old, the person deserts the child in any place intending permanently to abandon it.

Abandonment of a child is a class A misdemeanor. (11 Del. C. 1953, § 1101; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.)

§ 1102. Endangering the welfare of a child; class E or G felony.

(a) A person is guilty of endangering the welfare of a child when:

(1) Being a parent, guardian or any other person who has assumed responsibility for the care or supervision of a child less than 18 years old the person:

a. Knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of the child; or

b. Intentionally does or fails to do any act, with the result that the child becomes a neglected child; or

(2) The person knowingly contributes to the delinquency of any child less than 18 years old by doing or failing to do any act with the result, alone or in conjunction with other acts or circumstances, that the child becomes a delinquent child; or

(3) The person knowingly encourages, aids, abets or conspires with the child to run away from the home of the child's parents, guardian or custodian; or the person knowingly and illegally harbors a child who has run away from home; or

(4) The person commits any violent felony, or reckless endangering second degree, assault third degree, terroristic threatening, or unlawful imprisonment second degree against a victim, knowing that such felony or misdemeanor was witnessed by a child less than 18 years of age who is a member of the person's family or the victim's family.

(5) The person commits the offense of Driving Under the Influence as set forth in § 4177 of Title 21, or the offense of Operating a Vessel or Boat Under the Influence as set forth in § 2302 of Title 23, and during the commission of the offense knowingly permits a child less than 18 years of age to be a passenger in or on such vehicle, vessel or boat.

(6) The person commits any offense set forth in Chapter 47 of Title 16 in any dwelling, knowing that any child less than 18 years of age is present in the dwelling at the time.

(b) Endangering the welfare of a child shall be punished as follows:

(1) When the death of a child occurs while the child's welfare was endangered as defined in subsection (a) of this section, endangering the welfare of a child is a class E felony;

(2) When serious physical injury to a child occurs while the child's welfare was endangered as defined in subsection (a) of this section, endangering the welfare of a child is a class G felony;

(3) When a child becomes the victim of a sexual offense as defined in § 761(d) of this title while the child's welfare was endangered as defined in subsection (a) of this section, endangering the welfare of a child is a class G felony;

(4) In all other cases, endangering the welfare of a child is a class A misdemeanor.

(c) For the purpose of imposing the penalties prescribed in subdivision (b)(1), (b)(2) or (b)(3) of this section, it is not necessary to prove the person's state of mind or liability for causation with regard to the resulting death of or physical injury to the child or sexual offense against the child, notwithstanding the provisions of § 251, § 252, § 261, § 262, § 263 or § 264 of this title, or any other statutes to the contrary. (11 Del. C. 1953, § 1102; 58 Del. Laws, c. 497, § 1; 61 Del. Laws, c. 334, § 6; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 451, §§ 1, 2; 71 Del. Laws, c. 424, § 3; 73 Del. Laws, c. 208, §§ 1, 2, 3.)

§ 1102A. Abandonment of a baby at a hospital as defense.

In any prosecution for an offense set forth in § 1101 or § 1102 of this title, it is a defense if the person surrendered care or custody of a baby directly to an employee or volunteer of a hospital emergency department inside of the emergency department, provided that said baby is surrendered alive, unharmed and is in a safe place therein. For the purposes of this section "baby" means a child not more than 14 days old. (73 Del. Laws, c. 187, §§ 1, 8; 75 Del. Laws, c. 376, § 1.)

§ 1103. Definitions relating to children.

(a) "Abuse" means causing any physical injury to a child through unjustified force as defined in § 468(1)(c) of this title, torture, negligent treatment, sexual abuse, exploitation, maltreatment, mistreatment or any means other than accident.

(b) "Delinquent child" means a child who commits an act which if committed by an adult would constitute a crime.

(c) "Neglect" means threatening or impairing the physical, mental or emotional health and well-being of a child through inadequate care or protection, nontreatment or abandonment by the child's custodian or other person in whose temporary custodial care the child is left, when such custodian or other person has the ability and financial means to provide adequate care or protection, but does not or will not do so. A child subjected to the conditions defined in this subsection is considered a "neglected child". Nothing in this subsection shall be construed to mean that a child is neglected for the sole reason that the child's custodian, or other person in whose custodial care the child is left, provided treatment by spiritual means alone through prayer in lieu of medical treatment, provided that such custodian is a member or adherent of an organized church or religious group, the tenets of which prescribe prayer as the principal treatment for illness, and the treatment provided conformed to such tenets.

(d) "Truancy" or "truant" shall refer to a pupil enrolled in grades kindergarten through 12 of a public school who has been absent from school for more than 3 school days during a school year without a valid excuse as defined in regulations of the district board of education of the school district in which the pupil is or should be enrolled pursuant to the provisions of Title 14, or where a student is enrolled in a charter school, by the board of directors of the charter school.

(e) "Child" shall mean any individual 18 years of age or less. For the purposes of §§ 1108, 1109, 1110, 1111 and 1112A 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.

(f) "Prohibited sexual act" shall include:

(1) Sexual intercourse;

(2) Anal intercourse;

(3) Masturbation;

(4) Bestiality;

(5) Sadism;

(6) Masochism;

(7) Fellatio;

(8) Cunnilingus;

(9) Nudity, if such nudity is to be depicted for the purpose of the sexual stimulation or the sexual gratification of any individual who may view such depiction;

(10) Sexual contact;

(11) Lascivious exhibition of the genitals or pubic area of any child;

(12) Any other act which is intended to be a depiction or simulation of any act described in this subsection.

(g) "Visual depiction" includes, but is not limited to:

(1) Any image which is recorded, stored or contained on or by developed or undeveloped photographic film, motion picture film or videotape; or

(2) Data which is stored or transmitted on or by any computer, or on or by any digital storage medium or by any other electronic means which is capable of conversion into a visual image; or

(3) Any picture, or computer-generated image or picture, or any other image whether made, stored or produced by electronic, digital, mechanical or other means. (11 Del. C. 1953, § 1103; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 7; 60 Del. Laws, c. 449, § 2; 61 Del. Laws, c. 179, §§ 1, 2; 61 Del. Laws, c. 334, § 4; 63 Del. Laws, c. 290, § 8; 65 Del. Laws, c. 494, § 2; 70 Del. Laws, c. 266, §§ 3, 4; 72 Del. Laws, c. 346, § 17; 72 Del. Laws, c. 480, §§ 1-4; 74 Del. Laws, c. 175, § 13.)

§ 1104. Treatment of a child by a prayer as a defense to a charge of not providing medical care or treatment.

In any prosecution for endangering the welfare of a child, except where it is alleged to be punishable under § 1102(b)(1) or (b)(2) of this title, which is based upon an alleged failure or refusal to provide proper medical care or treatment to an ill child, it is an affirmative defense that the accused is a member or adherent of an organized church or religious group, the tenets of which prescribe prayer as the principal treatment for illness, and treated or caused the ill child to be treated in accordance with those tenets; provided, that the accused may not assert this defense when the person has violated any laws relating to communicable or reportable diseases and to sanitary matters. (11 Del. C. 1953, § 1104; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 451, § 3.)

§ 1105. Endangering the welfare of an incompetent person; class A misdemeanor.

A person is guilty of endangering the welfare of an incompetent person when the person knowingly acts in a manner likely to be injurious to the physical or mental welfare of one who is unable to care for oneself because of mental illness or defect.

Endangering the welfare of an incompetent person is a class A misdemeanor. (11 Del. C. 1953, § 1105; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.)

§ 1106. Unlawfully dealing with a child; class B misdemeanor.

A person is guilty of unlawfully dealing with a child when:

(1) The person knowingly permits a child less than 18 years old to enter or remain in a place where unlawful narcotics or dangerous drugs activity is maintained or conducted; or

(2) The person knowingly permits a child less than 18 years old to enter or remain in a place where unlawful sexual activity is maintained or conducted; or

(3) The person knowingly permits a child less than 18 years old to enter or remain in a place where gambling activity which is made unlawful by this Criminal Code is maintained or conducted; or

(4) The person, being the proprietor or person in charge of any dance house, concert saloon, theater, museum or similar place of amusement, where wines or spirituous or malt liquors are sold or given away, knowingly admits or permits to remain therein any minor under the age of 18 years, unless accompanied by a parent or guardian.

Unlawfully dealing with a child is a class B misdemeanor. (11 Del. C. 1953, § 1106; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 318, § 1; 73 Del. Laws, c. 425, §§ 1, 2.)

§ 1107. Endangering children; unclassified misdemeanor.

A person is guilty of endangering children when the person negligently abandons or leaves unattended in any place accessible to children any refrigerator, icebox or similar airtight box or container which has a locking device inoperable from within, without first unhinging and removing the door or lid thereof or detaching the locking device from the door or lid. Nothing in this section prohibits the normal use of a refrigerator, icebox or freezer for the storage of food.

Endangering children is an unclassified misdemeanor. (11 Del. C. 1953, § 1107; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.)

§ 1108. Sexual exploitation of a child; class B felony.

A person is guilty of sexual exploitation of a child when:

(1) The person knowingly, photographs or films a child engaging in a prohibited sexual act or in the simulation of such an act, or otherwise knowingly creates a visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; or

(2) The person knowingly, finances or produces any motion picture, video or other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; or

(3) The person knowingly publishes or makes available for public distribution or sale by any means, including but not limited to computer, any book, magazine, periodical, pamphlet, photograph, Internet site or web page which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, or knowingly publishes or makes available for public distribution or sale by any means, including computer, any other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; or

(4) The person permits, causes, promotes, facilitates, finances, produces or otherwise advances an exhibition, display or performances of a child engaging in a prohibited sexual act or the simulation of such an act.

Sexual exploitation of a child is a class B felony. (61 Del. Laws, c. 179, § 3; 63 Del. Laws, c. 28, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 480, §§ 5-7.)

§ 1109. Unlawfully dealing in child pornography; class D felony.

A person is guilty of dealing in child pornography when:

(1) The person knowingly ships, transmits, mails or transports by any means, including by computer or any other electronic or digital method, any "book, magazine, periodical, pamphlet, video or film depicting a child engaging in a prohibited sexual act or in the simulation of such an act, or knowingly ships, transmits, mails or transports by any means, including by computer or any other electronic or digital method, any other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act;

(2) The person knowingly receives for the purpose of selling or sells any magazine, photograph or film which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, or knowingly receives for the purpose of selling or sells any other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act;

(3) The person knowingly distributes or disseminates, by means of computer or any other electronic or digital method, or by shows or viewings, any motion picture, video or other visual depiction of a child engaging in a prohibited sexual act or the simulation of such an act. The possession or showing of such motion pictures shall create a rebuttable presumption of ownership thereof for the purposes of distribution or dissemination;

(4) The person, by means of a computer, intentionally compiles, enters, accesses, transmits, receives, exchanges, disseminates, stores, makes, prints, reproduces or otherwise possesses any photograph, image, file, data or other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act. For the purposes of this subsection, conduct occurring outside the State shall be sufficient to constitute this offense if such conduct is within the terms of § 204 of this title, or if such photograph, image, file or data was compiled, entered, accessed, transmitted, received, exchanged, disseminated, stored, made, printed, reproduced or otherwise possessed by, through or with any computer located within Delaware and the person was aware of circumstances which rendered the presence of such computer within Delaware a reasonable possibility; or

(5) The person knowingly advertises, promotes, presents, describes, transmits or distributes any visual depiction, exhibition, display or performance with intent to create or convey the impression that such visual depiction, exhibition, display or performance is or contains a depiction of a child engaging in a prohibited sexual act or in the simulation of such an act.

Unlawfully dealing in child pornography is a class D felony. (61 Del. Laws, c. 179, § 4; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 467, §§ 1, 2; 72 Del. Laws, c. 480, §§ 8-14.)

§ 1110. Subsequent convictions of § 1108 or § 1109 of this title.

Any person convicted under § 1109 of this title who is convicted of a second or subsequent violation of that section shall, upon such second or subsequent conviction, be guilty of a class B felony. Any person convicted under § 1108 of this title who is convicted of a second or subsequent violation of that section shall, upon such second or subsequent conviction, be sentenced to life imprisonment. (61 Del. Laws, c. 179, § 5; 67 Del. Laws, c. 130, § 8.)

§ 1111. Possession of child pornography; class F felony.

A person is guilty of possession of child pornography when:

(1) the person knowingly possesses any visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; or

(2) the person knowingly possesses any visual depiction which has been created, adapted, modified or edited so as to appear that a child is engaging in a prohibited sexual act or in the simulation of such an act.

Possession of child pornography is a class F felony. (67 Del. Laws, c. 202, § 1; 71 Del. Laws, c. 467, §§ 3, 4; 72 Del. Laws, c. 480, § 15.)

§ 1112. Sexual offenders; prohibitions from school zones.

(a) Any person who is a sexual offender and who:

(1) Resides on or within 500 feet of the property of any school shall be guilty of a class G felony.

(2) Loiters on or within 500 feet of the property of any school shall be guilty of a class F felony.

(b) For purposes of this section, the following definitions shall apply:

(1) "Loiter" means:

a. Standing, sitting idly, whether or not the person is in a vehicle, or remaining in or around school property, while not having reason or relationship involving custody of or responsibility for a pupil or any other specific or legitimate reason for being there; or

b. Standing, sitting idly, whether or not the person is in a vehicle, or remaining in or around school property, for the purpose of engaging or soliciting another person to engage in sexual intercourse, sexual penetration, sexual contact, or sexual harassment, sexual extortion, or indecent exposure.

(2) "School" means any preschool, kindergarten, elementary school, secondary school, vocational technical school or any other institution which has as its primary purpose the education or instruction of children under 16 years of age.

(3) "Reside" means to dwell permanently or continuously or to occupy a dwelling or home as one's permanent or temporary place of abode.

(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, § 774, § 775, § 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 a. of this subsection; 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 one or more of the offenses enumerated in paragraph a. of this subsection; 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 one or more of the offenses enumerated in paragraph a. of this subsection.

(c) It shall not be a defense to a prosecution for a violation of this section that the person was unaware that the prohibited conduct took place on or within 500 feet of any school property. (70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 279, § 1; 71 Del. Laws, c. 467, § 8.)

§ 1112A. Sexual solicitation of a child; class C felony.

(a) A person is guilty of sexual solicitation of a child if the person, being 18 years of age or older, intentionally or knowingly:

(1) Solicits, requests, commands, importunes or otherwise attempts to cause any child who has not yet reached his or her sixteenth birthday to engage in a prohibited sexual act; or

(2) Solicits, requests, commands, importunes or otherwise attempts to cause any child who has not yet reached his or her sixteenth birthday to meet with such person or any other person for the purpose of engaging in a prohibited sexual act; or

(3) Compiles, enters, accesses, transmits, receives, exchanges, disseminates, stores, makes, prints, reproduces or otherwise possesses by any means, including by means of computer, any notice, statement, document, advertisement, file or data containing the name, telephone number, address, e-mail address, school address or location, physical characteristics or other descriptive or identifying information pertaining to any child who has not yet reached his or her sixteenth birthday for the purpose of facilitating, encouraging, offering or soliciting a prohibited sexual act involving such child and such person or any other person.

(b) For the purposes of this section, conduct occurring outside the State shall be sufficient to constitute this offense if such conduct is within the terms of § 204 of this title, or if the child was within the State at the time of the prohibited conduct and the defendant was aware of circumstances which rendered the presence of such child within Delaware a reasonable possibility.

(c) Sexual solicitation of a child is a class C felony.

(d) Nothing in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code. (71 Del. Laws, c. 467, § 5.)

§ 1113. Criminal non-support and aggravated criminal non-support.

(a) A person is guilty of criminal non-support when he or she knowingly fails, refuses or neglects to provide the minimal requirements of food, clothing or shelter for his or her minor child. Criminal non-support is a class B misdemeanor unless the person has previously been convicted of the same offense or the offense of aggravated criminal non-support, in which case it is a class A misdemeanor.

(b) A person is guilty of aggravated criminal non-support when, being subject to a support order, he or she is delinquent in meeting, as and when due, the full obligation established by such support order and has been so delinquent for a period of at least 4 months' duration. Aggravated criminal non-support is a class A misdemeanor, unless any 1 of the following aggravating factors is present, in which case aggravated criminal non-support is a class G felony:

(1) The person has previously been convicted of aggravated criminal non-support;

(2) The person has been delinquent in meeting, as and when due, the full obligation established by such support order for 8 consecutive months; or

(3) The arrearage is $10,000 or more.

(c) In any prosecution for criminal non-support, it is an affirmative defense that the accused has fully complied with a support order that was in effect for the support of the subject person during the time period of the offense charged.

(d) In any prosecution for criminal non-support or aggravated criminal non-support, it is an affirmative defense that the accused was unable to pay or provide support, but the accused's inability to pay or provide support must be the result of circumstances over which he or she had no control. Unemployment or underemployment with justifiable excuse shall constitute a defense to any prosecution for criminal non-support or aggravated criminal non-support. Justifiable excuse may be established where the accused has been involuntarily terminated from his or her employment or otherwise had his or her income involuntarily reduced and is diligently and in good faith seeking reasonably appropriate employment opportunities under all the circumstances or pursuing self-employment.

(e) It is not a defense to a charge of criminal non-support or aggravated criminal non-support that the person to be supported received support from a source other than the accused.

(f) In any prosecution for criminal non-support or aggravated criminal non-support, payment records maintained by an administrative agency or court through which a support order is payable, are prima facie evidence of the support paid or unpaid and the accrued arrearages.

(g) A privilege against disclosure of confidential communications between spouses does not apply to a prosecution for criminal non-support or aggravated criminal non-support, and either spouse shall be competent to testify against the other as to any and all relevant matters.

(h) No civil proceeding in any court or administrative agency shall be a bar to a prosecution for criminal non-support or aggravated criminal non-support.

(i) The court, in its discretion, may order that any fine upon conviction for criminal non-support or aggravated criminal non-support be paid for the support of the person entitled to support. If a support order has been entered, a fine paid pursuant to this subsection shall be applied in accordance with the support order.

(j) The court shall order any person convicted of criminal non-support or aggravated criminal non-support to make restitution to the person entitled to support. The amount of restitution is the arrearages that accrued under a support order during the time period for which the person was convicted of criminal non-support or aggravated criminal non-support, or, if there is no support order, an amount determined to be reasonable by the court.

(k) As used in this section:

(1) "Child" means any child, whether over or under the age of majority, with respect to whom a support order exists.

(2) "Minor child" means any child, natural or adopted, whether born in or out of wedlock, under 18 years of age, or over 18 years of age but not yet 19 years of age if such child is a student in high school and is likely to graduate.

(3) "Support order" means a judgment, decree or order, whether temporary, final or subject to modification, for the benefit of a child, a spouse or a former spouse or a parent, issued by a court or agency, which provides for monetary support, medical support, health care, arrearages or reimbursement, whether incidental to a proceeding for divorce, judicial or legal separation, separate maintenance, paternity, guardianship, civil protection or otherwise. (70 Del. Laws, c. 448, § 1.)

§ 1114. Body-piercing, tattooing or branding; consent for minors; civil and criminal penalties.

(a) No person shall knowingly or negligently tattoo, brand or perform body-piercing on a minor unless that person obtains the prior written consent of the minor's parent over the age of 18 or legal guardian to the specific act of tattooing, branding or body-piercing.

(b) No person shall tattoo, brand or perform body-piercing on another person if the other person is under the influence of alcoholic beverages, being beer, wine or spirits or a controlled substance.

(c) Consent forms required by subsection (a) of this section shall be notarized.

(d)(1) A person who violates this section shall be guilty of a class B misdemeanor for the first offense or a class A misdemeanor for a second or subsequent offense. The Court of Common Pleas shall have original jurisdiction over these offenses for those 18 years of age or older, and the Family Court shall have original jurisdiction for those under the age of 18 at the time of the offense.

(2) In any prosecution for an offense under this subsection, it shall be an affirmative defense that the individual, who has not reached the age of 18, presented to the accused identification, with a photograph of such individual affixed thereon, which identification sets forth information which would lead a reasonable person to believe such individual was 18 years of age or older. A photocopy of the identification shall be attached to the information card that a customer shall complete at the time that the tattoo, body piercing or branding is obtained.

(e) A person who violates subsection (a) of this section is liable in a civil action for actual damages or $1,000, whichever is greater, plus reasonable court costs and attorney fees.

(f) As used in this section:

(1) "Body-piercing" means the perforation of human tissue excluding the ear for a nonmedical purpose.

(2) "Branding" means a permanent mark made on human tissue by burning with a hot iron or other instrument.

(3) "Controlled substance" means that term as defined in Chapter 47 of Title 16.

(4) "Minor" means an individual under 18 years of age who is not emancipated.

(5) "Tattoo" means 1 or more of the following:

a. An indelible mark made upon the body of another person by the insertion of a pigment under the skin.

b. An indelible design made upon the body of another person by production of scars other than by branding.

(6) Nothing in this section shall require a person to tattoo, brand or body pierce a minor with parental consent if the person does not regularly tattoo, brand or body pierce customers under the age of 18. (71 Del. Laws, c. 243, § 1.)

§ 1114A. Tongue-splitting; class A misdemeanor; class B misdemeanor; class G felony; additional civil penalties.

(a) A person is guilty of tongue-splitting in the first degree if the person is neither a physician nor a dentist, holding a valid license issued under the laws of the State of Delaware, and the person performs an act of tongue-splitting on any other person in this State. Tongue-splitting in the first degree is a class A misdemeanor.

(b) A doctor or dentist is guilty of tongue splitting in the second degree if the doctor or dentist performs an act of tongue-splitting in this State and the person on whom the act of tongue-splitting is performed is either:

(1) Under the influence of alcohol or a controlled substance; or

(2) Is a minor and the person has failed to obtain the prior written and notarized consent of the minor's adult parent or legal guardian to the specific act of tongue-splitting.

Tongue-splitting in the second degree is a class B misdemeanor.

(c) Any person found guilty of a second or subsequent violation of this section is guilty of a class G felony for such second or subsequent offense.

(d) In any prosecution for an offense under subsection (b)(2) of this section, it shall be an affirmative defense that the accused was presented with a piece of photo identification by the person on whom the accused performed the procedure setting forth such information that would lead a reasonable person to believe the individual was the person pictured on the identification and that the person was 18 years of age or older. Failure of the accused to present a photocopy of the identification to the court when raising a defense under this subsection shall be affirmative proof that no such identification exists.

(e) An act of tongue-splitting performed in violation of subsection (a) of this section constitutes both the practice of medicine without a license and the practice of dentistry without a license. Nothing in this section shall prohibit prosecution under the provisions of either § 1134 of Title 24 relating to the practice of dentistry without a license, or § 1766 of Title 24 relating to the practice of medicine without a license, or both.

(f) In addition to the penalties set forth herein, any person who has performed an act of tongue-splitting in violation of this section shall be held liable in a civil action, brought by any person aggrieved by such act, for actual damages or $1,000, whichever is greater; plus reasonable court costs and attorney fees.

(g) For the purposes of this section "tongue-splitting" means the surgical procedure of cutting a human tongue into 2 or more parts giving it a forked or multi-tipped appearance. (74 Del. Laws, c. 340, § 1; 70 Del. Laws, c. 186, § 1)

§ 1115. Definitions.

(1) "Coupon" means any card, paper, note, form, statement, ticket or other issue distributed for commercial or promotional purposes to be later surrendered by the bearer so as to receive any tobacco product without charge or at a discounted price.

(2) "Distribute" means give, deliver or sell, offer to give, deliver or sell, or cause or hire any person to give, deliver or sell, or offer to give, deliver or sell.

(3) "Health warning" means any tobacco product label mandated by federal law and intended to alert all users of such tobacco product to the health risks associated with tobacco use, including, but not limited to, warning labels imposed under the Federal Cigarette Labeling and Advertising Act and the Comprehensive Smokeless Tobacco Health Education Act of 1986.

(4) "Proof of age" means a driver's license or other identification with a photograph of the individual affixed thereon that indicates that the individual is 18 years old or older.

(5) "Public place" means any area to which the general public is invited or permitted, including, but not limited to, parks, streets, sidewalks or pedestrian concourses, sports arenas, pavilions, gymnasiums, public malls and property owned, occupied or operated by the State or by any agency thereof.

(6) "Sample" means a tobacco product distributed to members of the general public at no cost for the purpose of promoting the product.

(7) "Sampling" means the distribution of samples or coupons for redemption of tobacco products to members of the general public in a public place.

(8) "Tax stamp" means any required State or federal stamp imposed for the purpose of collecting excise tax revenue.

(9) "Tobacco product" means any product that contains tobacco, including, but not limited to, cigarettes, cigars, pipe tobacco, snuff or smokeless tobacco and is intended for human consumption or use.

(10) "Tobacco store" means any retail establishment where 60% of the retail establishment's gross revenue comes from the retail sale of tobacco products and smoking paraphernalia.

(11) "Vending machine" means any mechanical, electronic or other similar device which automatically dispenses tobacco products, usually upon the insertion of a coin, token or slug. (70 Del. Laws, c. 318, § 4.)

§ 1116. Sale or distribution of tobacco products to minors.

(a) It shall be unlawful for any person to sell or distribute any tobacco product to another person who has not attained the age of 18 years or to purchase any tobacco product on behalf of another such person, except that this section shall not apply to the parent or guardian of another such person.

(b) A person engaged in the sale or distribution of tobacco products shall have the right to demand proof of age from a prospective purchaser or recipient of such products. (70 Del. Laws, c. 318, § 4.)

§ 1117. Notice.

A person engaged in the sale or distribution of tobacco products shall post conspicuously at each point of purchase a notice stating that selling tobacco products to anyone under 18 years of age is illegal, that the purchase of tobacco products by anyone under 18 years of age is illegal and that a violator is subject to fines. The notice shall also state that all persons selling tobacco products have the right, under law, to check the proof of age of any purchaser of tobacco products. The notice shall include a toll-free telephone number to the Department of Safety and Homeland Security for persons to report unlawful sales of tobacco products. The owner of an establishment who fails to post a notice in compliance with this section shall be subject to a fine of $100. (70 Del. Laws, c. 318, § 4; 74 Del. Laws, c. 110, § 138.)

§ 1118. Distribution of samples to minors.

(a) It shall be unlawful for any person to distribute tobacco product samples or coupons for subsequent receipt of free or discounted tobacco products to another person who has not attained the age of 18 years.

(b) A person engaged in sampling shall have the right to demand proof of age from a prospective recipient of samples or of coupons for the redemption of tobacco products. (70 Del. Laws, c. 318, § 4.)

§ 1119. Distribution of cigarettes through vending machines.

(a) It shall be unlawful for any person to distribute or permit the distribution of tobacco products through the operation of a vending machine in a public place, except as provided in subsection (b) of this section.

(b) Pursuant to subsection (a) of this section, a person may distribute or permit the distribution of tobacco products through the operation of a vending machine in a taproom, tavern, tobacco shop or in premises in which a person who has not attained the age of 18 years is prohibited by law from entering. A tobacco vending machine must be operated a minimum of 25 feet from any entrance to the premises and must be directly visible to the owner or supervisor of the premises.

(c) It shall be unlawful for any person who owns, operates or manages a business establishment where tobacco products are offered for sale over the counter at retail to maintain such products in any display accessible to customers that is not either (1) within the line of sight of a cashier or other employee, or (2) under the control of a cashier or other employee. This prohibition shall not apply to business establishments to which persons under the age of 18 are not admitted unless accompanied by an adult, or tobacco stores. As used in this subsection, "within the line of sight" means visible to a cashier or other employee, whether directly or by means of mirrors or monitors, and "under the control" means within the reach of a cashier or other employee or protected by other security, surveillance or detection methods. (70 Del. Laws, c. 318, § 4; 72 Del. Laws, c. 472, § 2.)

§ 1120. Distribution of tobacco products.

(a) No person shall distribute a tobacco product for commercial purposes unless the product is in a sealed package provided by the manufacturer with the required health warning and tax stamp.

(b) No person shall distribute any pack of cigarettes containing fewer than 20 cigarettes. (70 Del. Laws, c. 318, § 4; 72 Del. Laws, c. 472, § 1.)

§ 1121. Penalties.

Notwithstanding any other provision of Delaware law, a person who violates § 1116, § 1118, § 1119 or § 1120 of this title shall be guilty of a violation and shall be fined $250 for the 1st offense, $500 for the 2nd offense and $1,000 for the 3rd and all subsequent offenses. Additionally, and notwithstanding any other provision of Delaware law, in imposing a penalty for a 2nd, 3rd or other subsequent offense under this subpart, the court may order the Department of Finance to suspend the defendant's license for sale of tobacco products, issued pursuant to § 5307 of Title 30, for a period not to exceed 6 months. Upon the suspension of such license, the court shall advise the Department of Finance of the suspension in writing. The holder of the license shall surrender the license to the Department of Finance and no refund of fees shall be paid. For purposes of this subpart, a subsequent offense is one that occurs within 12 months of a prior like offense. (70 Del. Laws, c. 318, § 4.)

§ 1122. Affirmative defense.

In any prosecution for an offense under this subpart, it shall be an affirmative defense that the purchaser or recipient of tobacco products who had not reached the age of 18 years presented to the accused proof of age which set forth information that would lead a reasonable person to believe that such individual was 18 years of age or older. (70 Del. Laws, c. 318, § 4.)

§ 1123. Liability of employer.

(a) If a sale or distribution of any tobacco product or coupon is made in violation of § 1116, § 1118, § 1119 or § 1120 of this title, the owner, proprietor, franchisee, store manager or other person in charge of the establishment where the violation occurred shall be guilty of the violation and shall be subject to the fine only if the retail licensee has received written notice of the provisions of §§ 1116 through 1121 of this title by the Department of Safety and Homeland Security. For purposes of determining the liability of a person who owns or controls franchises or business operations in multiple locations, for a 2nd or subsequent violation of this subpart, each individual franchise or business location shall be deemed a separate establishment.

(b) Notwithstanding any other provision of this subpart, in any prosecution for a violation of §§ 1116, 1118 and 1120, the owner, proprietor, franchisee, store manager or other person in charge of the establishment where the alleged violation occurred shall have an affirmative defense if such person or entity can establish that prior to the date of the violation:

(1) Had adopted and enforced a written policy against selling tobacco products to persons under 18 years of age;

(2) Had informed its employees of the applicable laws regarding the sale of tobacco products to persons under 18 years of age;

(3) Required employees to sign a form indicating that they have been informed of and understand the written policy required herein;

(4) Required employees to verify the age of tobacco product customers by means of photographic identification; and

(5) Had established and enforced disciplinary sanctions for noncompliance.

(c) The affirmative defense established in subsection (b) of this section may be used by an owner, proprietor, franchisee, store manager or other person in charge of the establishment no more than twice at each location within any 12-month period. (70 Del. Laws, c. 318, § 4; 72 Del. Laws, c. 69, § 1; 74 Del. Laws, c. 110, § 138.)

§ 1124. Purchase or receipt of tobacco products by minors.

(a) It shall be unlawful for any person who has not attained the age of 18 years to purchase a tobacco product, to accept receipt of a sample, to exchange a coupon for a tobacco product or to present or offer to another person a purported proof of age which is false, fraudulent or not actually his or her own proof of age, for the purpose of purchasing or receiving any tobacco product or redeeming a coupon for a tobacco product.

(b) A person who violates subsection (a) of this section shall be adjudged delinquent and shall for a 1st adjudication be fined $50 or ordered to perform 25 hours of community service work, and for a 2nd adjudication and for all subsequent adjudications be fined $50 and ordered to perform 50 hours of community service work. A subsequent adjudication of delinquency is one that occurs within 12 months of a prior like offense. (70 Del. Laws, c. 318, § 4.)

§ 1125. Unannounced inspections; reporting; enforcement.

(a) The Department of Safety and Homeland Security or its delegates shall be responsible for conducting annual, random, unannounced inspections at locations where tobacco products are sold or distributed to test and ensure compliance with and enforcement of §§ 1116-1120 and 1124 of this title.

(b) Persons under the age of 18 may be enlisted by the Department of Safety and Homeland Security or its delegates to test compliance with and enforcement of §§ 1116-1120 and 1124 of this title, provided however, that such persons may be used only under the direct supervision of the Department of Public Safety, its employees or delegates and only where written parental consent has been provided.

(c) Participation in the inspection and enforcement activities of this section by a person under 18 years of age shall not constitute a violation of this subpart for the person under 18 years of age, and the person under 18 years of age is immune from prosecution thereunder, or under any other provision of law prohibiting the purchase of these products by a person under 18 years of age.

(d) The Department of Safety and Homeland Security shall adopt and publish guidelines for the use of persons under 18 years of age in inspections conducted pursuant to this section.

(e) The Department of Safety and Homeland Security may enter into an agreement with any local law enforcement agency for delegation of the inspection and enforcement activities of this section within the local law enforcement agency's jurisdiction. The contract shall require the inspection and enforcement activities of the local law enforcement agency to comply with this subpart and with all applicable laws.

(f) In cases where inspection and enforcement activities have been delegated to a local law enforcement agency pursuant to this section, any inspection or enforcement by the Department of Safety and Homeland Security in the jurisdiction of the local law enforcement agency shall be coordinated with the local law enforcement agency.

(g) The Delaware Department of Health and Social Services shall annually submit to the Secretary of the United States Department of Health and Human Services the report required by § 1926 of the federal Public Health Service Act (42 U.S.C. § 300x-26). A copy of this report shall be available to the Governor and the General Assembly. (70 Del. Laws, c. 318, § 4; 74 Del. Laws, c. 110, § 138.)

§ 1126. Jurisdiction.

The Justices of the Peace Court shall have jurisdiction over violations of this subpart, except in the instance of violations by a person who has not attained the age of 18, in which case the Family Court shall have jurisdiction. (70 Del. Laws, c. 318, § 4.)

§ 1127. Pre-emption.

The provisions of this subpart shall preempt and supersede any provisions of any municipal or county ordinance or regulation on the subject of this subpart enacted after June 30, 1996. (70 Del. Laws, c. 318, § 4.)