2019 Delaware Code
Title 11 - Crimes and Criminal Procedure
Chapter 5. Specific Offenses
Subchapter VII Offenses Against Public Health, Order and Decency
§ 1335 Violation of privacy; class A misdemeanor; class G felony.
(a) A person is guilty of violation of privacy when, except as authorized by law, the person:
(1) Trespasses on property intending to subject anyone to eavesdropping or other surveillance in a private place; or
(2) Installs in any private place, without consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying or broadcasting sounds or events in that place; or
(3) Installs or uses outside a private place any device for hearing, recording, amplifying or broadcasting sounds originating in that place which would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy there; or
(4) Intercepts without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation; or
(5) Divulges without the consent of the sender and the receiver the existence or contents of any message by telephone, telegraph, letter or other means of communicating privately if the accused knows that the message was unlawfully intercepted or if the accused learned of the message in the course of employment with an agency engaged in transmitting it.
(6) Tape records, photographs, films, videotapes or otherwise reproduces the image of another person who is getting dressed or undressed or has that person’s genitals, buttocks or her breasts exposed, without consent, in any place where persons normally disrobe including but not limited to a fitting room, dressing room, locker room or bathroom, where there is a reasonable expectation of privacy. This paragraph shall not apply to any acts done by a parent or guardian inside of that person’s dwelling, or upon that person’s real property, when a subject of victim of such acts is intended to be any child of such parent or guardian who has not yet reached that child’s eighteenth birthday and whose primary residence is in or upon the dwelling or real property of the parent or guardian, unless the acts done by the parent or guardian are intended to produce sexual gratification for any person in which case this paragraph shall apply; or
(7) Secretly or surreptitiously videotapes, films, photographs or otherwise records another person under or through that person’s clothing for the purpose of viewing the body of or the undergarments worn by that other person; or
(8) Knowingly installs an electronic or mechanical location tracking device in or on a motor vehicle without the consent of the registered owner, lessor or lessee of said vehicle. This paragraph shall not apply to the lawful use of an electronic tracking device by a law-enforcement officer, nor shall it apply to a parent or legal guardian who installs such a device for the purpose of tracking the location of a minor child thereof; or
(9) Knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates a visual depiction of a person who is nude, or who is engaging in sexual conduct, when the person knows or should have known that the reproduction, distribution, exhibition, publication, transmission, or other dissemination was without the consent of the person depicted and that the visual depiction was created or provided to the person under circumstances in which the person depicted has a reasonable expectation of privacy.
a. For the purposes of the introductory paragraph of this paragraph (a)(9), paragraphs (a)(9)b., and (a)(9)d. of this section:
1. “Nude” means any 1 or more of the following uncovered parts of the human body, or parts of the human body visible through less than opaque clothing:
A. The genitals;
B. The pubic area;
C. The buttocks;
D. Any portion of the female breast below the top of the areola.
2. “Personally identifiable information” means any information about a person that permits the physical or online identifying or contacting of a person. The term includes either a person’s face or a person’s first and last name or first initial and last name in combination with any 1 or more of the following:
A. A home or other physical address, including street name and name of a city or town;
B. An e-mail address;
C. A telephone number;
D. Geolocation data;
E. Any other identifier that permits the physical or online identifying or contacting of a person.
3. “Sexual conduct” means actual or simulated:
A. Sexual contact;
B. Sexual intercourse;
C. Sexual penetration;
G. Masochism; or
H. Explicit representations of the defecation or urination functions.
4. “Sexual contact” means any touching by 1 person of the uncovered anus, breast, buttocks, or genitalia of another person or any touching of a person with the uncovered anus, breasts, buttocks or genitalia of another person.
5. “Sexual intercourse” means any act of physical union of the genitalia or anus of a person with the mouth, anus, or genitalia of another person.
6. “Sexual penetration” means the placement of an object inside the anus or vagina of a person or the placement of a sexual device inside the mouth of a person.
7. “Visual depiction” shall have the meaning as used in § 1100 of this title.
b. A person who has, within the context of a private or confidential relationship, consented to the capture or possession of a visual depiction of the person when nude or when engaging in sexual conduct retains a reasonable expectation of privacy with regard to the reproduction, distribution, exhibition, publication, transmission, or other dissemination of the visual depiction beyond that relationship.
c. For the purposes of this paragraph (a)(9), each of the following shall be an aggravating factor and shall be alleged in the charging information or indictment and constitute an element of the offense:
1. The actor knowingly obtains such visual depictions without the consent of the person depicted.
A. A violation of this paragraph (a)(9)c.1. occurs when a person commits a theft as provided for in § 841, § 842, § 843, or § 844 of this title or obtains such visual depictions by committing unauthorized access to a computer system as provided for in § 932 of this title or by unauthorized access to electronic mail or an electronic mail service provider as defined in § 931 of this title.
B. A violation of this paragraph (a)(9)c.1. consistent with § 932 of this title is subject to the venue provision in § 940 of this title.
2. The actor knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates such visual depictions for profit.
3. The actor knowingly maintains an Internet website, online service, online application, or mobile application for the purpose of reproducing, distributing, exhibiting, publishing, transmitting, or otherwise disseminating such visual depictions.
4. The actor knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates such visual depictions with the intent to harass, annoy, or alarm the person depicted and such conduct would cause a reasonable person to suffer significant mental anguish or distress.
5. The actor pairs such visual depiction with personally identifiable information of the person depicted.
d. For purposes of this paragraph (a)(9), the fact the actor committed this offense within 5 years of a prior conviction for a violation of this paragraph (a)(9) shall be an aggravating factor for sentencing purposes only and, therefore, this fact is not to be alleged in the charging information or indictment and does not constitute an element of the offense.
e. In addition to when the consent of the person depicted is given, the introductory paragraph of this paragraph (a)(9) and paragraph (a)(9)b. of this section do not apply to any of the following:
1. When the visual depiction is of an individual less than 18 years of age and does not violate § 1108, § 1109, or § 1111 of this title, or any similar provision of this title, and the reproduction, distribution, exhibition, publication, transmission, or other dissemination is not for commercial purposes.
2. When the visual depiction is reproduced, distributed, exhibited, published, transmitted, or otherwise disseminated in the course of lawful and common practices of a law-enforcement officer, the reporting of unlawful conduct, legal proceedings, or medical treatment procedures.
3. When the person depicted has consented to the reproduction, distribution, exhibition, transmission, or other dissemination of the visual depiction for commercial purposes.
4. When the person depicted has voluntarily appeared nude in public or voluntarily engages in sexual conduct in public.
5. When the reproduction, distribution, exhibition, publication, transmission, or other dissemination serves a legitimate public purpose.
f. Nothing within this paragraph (a)(9) shall be construed to impose liability on an interactive computer service, as defined in 47 U.S.C. § 230(f)(2), or an information service or telecommunications service, as defined in 47 U.S.C. § 153, for content provided by the actor or another person.
(b) This section does not apply to:
(1) Overhearing of messages through a regularly installed instrument on a telephone party line or an extension or any other regularly installed instrument or equipment; or
(2) Acts done by the telephone company or subscribers incident to the enforcement of telephone company regulations or subscriber rules relating to the use of facilities; or
(3) Acts done by personnel of any telephone or telegraph carrier in the performance of their duties in connection with the construction, maintenance or operation of a telephone or telegraph system; or
(4) The divulgence of the existence of any message in response to a subpoena issued by a court of competent jurisdiction or a governmental body having subpoena powers; or
(5) Acts done by police officers as provided in §§ 1336 [repealed] and 1431 of this title.
(c) Any violation of paragraph (a)(1), (a)(2), (a)(3), (a)(4), (a)(5), (a)(8), or (a)(9) of this section shall be a class A misdemeanor. Any violation of paragraph (a)(6), (a)(7), (a)(9)c., or (a)(9)d. of this section shall be a class G felony.
11 Del. C. 1953, § 1335; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 180, §§ 1-3; 73 Del. Laws, c. 172, §§ 1, 2, 3; 75 Del. Laws, c. 341, §§ 1, 2; 79 Del. Laws, c. 415, § 1; 81 Del. Laws, c. 79, § 11.