Defenses to Criminal Liability

Del. Code tit. 11, ch. 4
in effect

Del. Code tit. 11, § 401 Mental illness or psychiatric disorder.

(a) In any prosecution for an offense, it is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or serious mental disorder, the accused lacked substantial capacity to appreciate the wrongfulness of the accused’s conduct. If the defendant prevails in establishing the affirmative defense provided in this subsection, the trier of fact shall return a verdict of “not guilty by reason of insanity.” (b) Where the trier of fact determines that, at the time of the conduct charged, a defendant suffered from a mental illness or serious mental disorder which substantially disturbed such person’s thinking, feeling or behavior and/or that such mental illness or serious mental disorder left such person with insufficient willpower to choose whether the person would do the act or refrain from doing it, although physically capable, the trier of fact shall return a verdict of “guilty, but mentally ill.” (c) It shall not be a defense under this section if the alleged insanity or mental illness was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor, any drug or other mentally debilitating substance, or any combination thereof, unless such substance was prescribed for the defendant by a licensed health-care practitioner and was used in accordance with the directions of such prescription. As used in this chapter, the terms “insanity” or “mental illness” do not include an abnormality manifested only by repeated criminal or other antisocial conduct.

Del. Code tit. 11, § 402 Rules to prescribe procedures for psychiatric examination; testimony of psychiatrist or other expert.

(a) The procedures for examination of the accused by the accused’s own psychiatrist or by a psychiatrist employed by the State and the circumstances under which such an examination will be permitted may be prescribed by rules of the court having jurisdiction over the offense. (b) A psychiatrist or other expert testifying at trial concerning the mental condition of the accused shall be permitted to make a statement as to the nature of the examination, the psychiatrist’s or expert’s diagnosis of the mental condition of the accused at the time of the commission of the offense charged and the psychiatrist’s or expert’s opinion as to the extent, if any, to which the capacity of the accused to appreciate the wrongfulness of the accused’s conduct or to choose whether the accused would do the act or refrain from doing it or to have a particular state of mind which is an element of the offense charged was impaired as a result of mental illness or serious mental disorder at that time. The psychiatrist or expert shall be permitted to make any explanation reasonably serving to clarify the diagnosis and opinion and may be cross-examined as to any matter bearing on the psychiatrist’s or expert’s competence or credibility or the validity of the diagnosis or opinion.

Del. Code tit. 11, § 403 Verdict of “not guilty by reason of insanity;” commitment to Delaware Psychiatric Center of persons no longer endangering the public safety; periodic review of commitments to Delaware Psychiatric Center; participation of patient in treatment program.

(a) Upon the rendition of a verdict of “not guilty by reason of insanity,” the court shall, upon motion of the Attorney General, order that the person so acquitted shall forthwith be committed to the Delaware Psychiatric Center. (b) Except as provided in subsection (c) of this section below, a person committed, confined or transferred to the Delaware Psychiatric Center in accordance with subsection (a) of this section, § 404, § 405, § 406 or § 408 of this title (referred to herein as “the patient”) shall be kept there at all times in a secured building until the Superior Court of the county wherein the case would be tried or was tried is satisfied that the public safety will not be endangered by the patient’s release. The Superior Court shall without special motion reconsider the necessity of continued detention of a patient thus committed after the patient has been detained for 1 year. The Court shall thereafter reconsider the patient’s detention upon petition on the patient’s behalf or whenever advised by the Psychiatric Center that the public safety will not be endangered by the patient’s release. (c) (1) Upon petition by a patient confined pursuant to this section, § 404, § 405, § 406 or § 408 of this title, or upon petition by the Center Director of the Delaware Psychiatric Center, the Court may permit housing in an unsecured building or participation by the patient in any treatment program that is offered by the Center, which requires or provides that the patient be placed outside a secured building. Such participation shall include, but not be limited to, employment off hospital grounds, job interviews, family visits and other activities inside and outside the Center, as may be prescribed by the Medical Director in the interest of rehabilitation. (2) The petition shall include an affidavit from the Medical Director which states that the patient has not exhibited dangerous behavior during the last year of confinement and that in the opinion of the Medical Director, the patient will benefit from such participation. (3) The petition shall set forth any specific treatment program being sought; the specific goals and course of treatment involved; and a schedule for periodic judicial reevaluation of the patient’s treatment status, all of which shall be subject to the Court’s approval and modification. (4) Copies of the petition shall be served on the Attorney General, the Medical Director and the patient or the patient’s counsel or guardian. (5) There shall be a judicial hearing on the petition, and any person or agency served with a copy of the petition, or a representative of such person or agency, shall have the right to testify, present evidence and/or cross-examine witnesses. The patient shall have the right to be represented by counsel at any proceeding held in accordance with this section. The Court shall appoint counsel for the patient if the patient cannot afford to retain counsel. (6) Upon conclusion of a hearing on a petition pursuant to this section, the Court may approve, modify or disapprove any request or matter within the petition. If the patient’s participation in any treatment program is approved, such approval or participation shall be effective for not longer than 6 months from the date of the judge’s signature on the petition or order permitting such participation. Immediately prior to the conclusion of the 6-month period, the Center Director shall report to the Court on the patient’s status, and make recommendations. Any authorization by the Court for continued participation by the patient in any authorized treatment programs may be extended, modified or discontinued at the end of the effective period with or without further hearings, as the Court may determine. (d) Any treatment program approved by the Court under this section may be terminated by the Medical Director of the Delaware Psychiatric Center. When a treatment program is terminated earlier than its court-approved expiration date, the Medical Director shall immediately notify the Superior Court. The Superior Court shall, after giving appropriate notice, hear the matter and review the decision of the Medical Director. At such termination hearing, the patient shall have such rights as are provided for other hearings under this section, including the right to counsel, the right to present evidence and the right to cross-examine witnesses. Where the Medical Director’s decision to terminate is based upon the patient’s mental or psychological condition, the patient may be examined by an independent psychiatrist or other qualified expert; provided, however, that the termination hearing shall not be held until such examination has been finally concluded.

Del. Code tit. 11, § 404 Confinement in Delaware Psychiatric Center of persons too mentally ill to stand trial; requiring State to prove prima facie case in such circumstances; adjustment of sentences.

(a) Whenever the court is satisfied, after hearing, that an accused person, because of mental illness or serious mental disorder, is unable to understand the nature of the proceedings against the accused, or to give evidence in the accused’s own defense or to instruct counsel on the accused’s own behalf, the court may order the accused person to be confined and treated in the Delaware Psychiatric Center until the accused person is capable of standing trial. However, upon motion of the defendant, the court may conduct a hearing to determine whether the State can make out a prima facie case against the defendant, and if the State fails to present sufficient evidence to constitute a prima facie case, the court shall dismiss the charge. This dismissal shall have the same effect as a judgment of acquittal. (b) When the court finds that the defendant is capable of standing trial, the defendant may be tried in the ordinary way, but the court may make any adjustment in the sentence which is required in the interest of justice, including a remission of all or any part of the time spent in the Psychiatric Center.

Del. Code tit. 11, § 405 Confinement in Delaware Psychiatric Center of persons developing mental illness after conviction but before sentencing; adjustment of sentences.

(a) Whenever the court is satisfied that a prisoner has developed a mental illness after conviction but before sentencing so that the prisoner is unable understandingly to participate in the sentencing proceedings, and if the court is satisfied that a sentence of imprisonment may be appropriate, the court may order the prisoner to be confined and treated in the Delaware Psychiatric Center until the prisoner is capable of participating in the sentencing proceedings. (b) When the court finds that the prisoner is capable of participating in the sentencing proceedings, the prisoner may be sentenced in the ordinary way, but the court may make any adjustment in the sentence which is required in the interest of justice, including a remission of all or any part of the time spent in the Psychiatric Center.

Del. Code tit. 11, § 406 Transfer of convicted persons becoming mentally disabled from prison to Delaware Psychiatric Center; appointment of physicians to conduct inquiry; expenses of transfer.

(a) Whenever in any case it appears to the Superior Court, upon information received from the Department of Health and Social Services, that a prisoner confined with the Department has developed a mental illness after conviction and sentence, the Court may appoint 2 reputable practicing physicians to inquire of the mental condition of the prisoner and make report of their finding to the Court within 2 days from the date of their appointment, by writing under their hands and seals. Should the report of the physicians be that the prisoner has a mental illness, the prisoner shall at once be ordered by the Court transferred from the prison facility where the prisoner is confined to the Delaware Psychiatric Center. (b) The expenses of the removal of such a person with a mental illness and of admission into such Psychiatric Center and maintenance therein up and until the time the person is discharged by the Court shall be borne by the State. If any such person with a mental illness has any real or personal estate, the Department of Health and Social Services shall have for the expenses and charges so incurred the same remedy as is provided in § 5019 of Title 16.

Del. Code tit. 11, § 408 Verdict of “guilty, but mentally ill” — Sentence; confinement; discharge from treating facility.

(a) Where a defendant’s defense is based upon allegations which, if true, would be grounds for a verdict of “guilty, but mentally ill” or the defendant desires to enter a plea to that effect, no finding of “guilty, but mentally ill” shall be rendered until the trier of fact has examined all appropriate reports (including the presentence investigation); has held a hearing on the sole issue of the defendant’s mental illness, at which either party may present evidence; and is satisfied that the defendant did in fact have a mental illness at the time of the offense to which the plea is entered. Where the trier of fact, after such hearing, is not satisfied that the defendant had a mental illness at the time of the offense, or determines that the facts do not support a “guilty, but mentally ill” plea, the trier of fact shall strike such plea, or permit such plea to be withdrawn by the defendant. A defendant whose plea is not accepted by the trier of fact shall be entitled to a jury trial, except that if a defendant subsequently waives the right to a jury trial, the judge who presided at the hearing on mental illness shall not preside at the trial. (b) In a trial under this section a defendant found guilty but mentally ill, or whose plea to that effect is accepted, may have any sentence imposed which may lawfully be imposed upon any defendant for the same offense. Such defendant shall be committed into the custody of the Department of Correction, and shall undergo such further evaluation and be given such immediate and temporary treatment as is psychiatrically indicated. The Commissioner shall retain exclusive jurisdiction over such person in all matters relating to security. The Commissioner shall thereupon confine such person in the Delaware Psychiatric Center, or other suitable place for the residential treatment of criminally culpable persons with a mental illness under the age of 18 who have been found nonamenable to the processes of Family Court. Although such person shall remain under the jurisdiction of the Department of Correction, decisions directly related to treatment for the mental illness for individuals placed at the Delaware Psychiatric Center, shall be the joint responsibility of the Director of the Division of Substance Abuse and Mental Health and those persons at the Delaware Psychiatric Center who are directly responsible for such treatment. The Delaware Psychiatric Center, or any other residential treatment facility to which the defendant is committed by the Commissioner, shall have the authority to discharge the defendant from the facility and return the defendant to the physical custody of the Commissioner whenever the facility believes that such a discharge is in the best interests of the defendant. The offender may, by written statement, refuse to take any drugs which are prescribed for treatment of the offender’s mental illness; except when such a refusal will endanger the life of the offender, or the lives or property of other persons with whom the offender has contact. (c) When the Psychiatric Center or other treating facility designated by the Commissioner discharges an offender prior to the expiration of such person’s sentence, the treating facility shall transmit to the Commissioner and to the Parole Board a report on the condition of the offender which contains the clinical facts; the diagnosis; the course of treatment, and prognosis for the remission of symptoms; the potential for the recidivism, and for danger to the offender’s own person or the public; and recommendations for future treatment. Where an offender under this section is sentenced to the Psychiatric Center or other facility, the offender shall not be eligible for any privileges not permitted in writing by the Commissioner (including escorted or unescorted on-grounds or off-grounds privileges) until the offender has become eligible for parole. Where the court finds that the offender, before completing the sentence, no longer needs nor could benefit from treatment for the offender’s mental illness, the offender shall be remanded to the Department of Correction. The offender shall have credited toward the sentence the time served at the Psychiatric Center or other facility. (d) No individual under the age of 18 shall be placed at the Delaware Psychiatric Center. Nothing herein shall prevent either the transfer to or placement at the Delaware Psychiatric Center any person who has reached the age of 18 following any finding of guilty, but mentally ill.

Del. Code tit. 11, § 409 Verdict of “guilty, but mentally ill” — Parole; probation.

(a) A person who has been adjudged “guilty, but mentally ill” and who during incarceration is discharged from treatment may be placed on prerelease or parole status under the same terms and laws applicable to any other offender. Psychological or psychiatric counseling and treatment may be required as a condition for such status. Failure to continue treatment, except by agreement of the Department of Correction, shall be a basis for terminating prerelease status or instituting parole violation hearings. (b) If the report of the Delaware Psychiatric Center or other facility recommends parole, the paroling authority shall within 45 days or at the expiration of the offender’s minimum sentence, whichever is later, meet to consider the offender’s request for parole. If the report does not recommend parole, but other laws or administrative rules of the Department permit parole, the paroling authority may meet to consider a parole request. When the paroling authority considers the offender for parole, it shall consult with the State Hospital or other facility at which the offender had been treated, or from which the offender has been discharged. (c) If an offender who has been found “guilty, but mentally ill” is placed on probation, the court, upon recommendation by the Attorney General, shall make treatment a condition of probation. Reports as specified by the trial judge shall be filed with the probation officer, and the sentencing court. Treatment shall be provided by an agency of the State or, with the approval of the sentencing court and at individual expense, private agencies, private physicians or other mental health personnel.

Del. Code tit. 11, § 421 Voluntary intoxication.

The fact that a criminal act was committed while the person committing such act was in a state of intoxication, or was committed because of such intoxication, is no defense to any criminal charge if the intoxication was voluntary.

Del. Code tit. 11, § 422 Intoxication not mental illness.

Evidence of voluntary intoxication shall not be admissible for the purpose of proving the existence of mental illness, mental defect, serious mental disorder or psychiatric disorder within the meaning of § 401 of this title.

Del. Code tit. 11, § 423 Involuntary intoxication as a defense.

In any prosecution for an offense it is a defense that, as a result of intoxication which is not voluntary, the actor at the time of the conduct lacked substantial capacity to appreciate the wrongfulness of the conduct or to perform a material element of the offense, or lacked sufficient willpower to choose whether the person would do the act or refrain from doing it.

Del. Code tit. 11, § 424 Definitions relating to intoxication.

As used in §§ 421-423 of this title: (1) “Intoxication” means the inability, resulting from the introduction of substances into the body, to exercise control over one’s mental faculties. (2) “Voluntary intoxication” means intoxication caused by substances which the actor knowingly introduces into the actor’s body, the tendency of which to cause intoxication the actor knows or should know, unless the actor introduces them pursuant to medical advice or under such duress as would afford a defense to a prosecution for a criminal offense.

Del. Code tit. 11, § 431 Duress as affirmative defense; defense unavailable in certain situations.

(a) In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the conduct charged to constitute the offense because the defendant was coerced to do so by the use of, or a threat to use, force against the defendant’s person or the person of another, which a reasonable person in the defendant’s situation would have been unable to resist. (b) The defense provided by subsection (a) of this section is unavailable if the defendant intentionally or recklessly placed himself or herself in a situation in which it was probable that the defendant would be subjected to duress. (c) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this section. The presumption that a woman acting in the presence of her husband is coerced is abolished.

Del. Code tit. 11, § 432 Entrapment as affirmative defense; defense unavailable in certain situations.

(a) In any prosecution for an offense, it is an affirmative defense that the accused engaged in the proscribed conduct because the accused was induced by a law-enforcement official or the law-enforcement official’s agent who is acting in the knowing cooperation with such an official to engage in the proscribed conduct constituting such conduct which is a crime when such person is not otherwise disposed to do so. The defense of entrapment as defined by this Criminal Code concedes the commission of the act charged but claims that it should not be punished because of the wrongdoing of the officer originates the idea of the crime and then induces the other person to engage in conduct constituting such a crime when the other person is not otherwise disposed to do so. (b) The defense afforded by subsection (a) of this section is unavailable when causing or threatening physical injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.

Del. Code tit. 11, § 441 Ignorance or mistake of fact as defense.

In any prosecution for an offense, it is a defense that the accused engaged in the conduct charged to constitute the offense under ignorance or mistake of fact if: (1) The ignorance or mistake negatives the state of mind for the commission of the offense; or (2) The statute defining the offense or a statute related thereto expressly provides that the ignorance or mistake constitutes a defense or exemption; or (3) The ignorance or mistake is of a kind that supports a defense of justification as defined in this Criminal Code.

Del. Code tit. 11, § 451 Consent of victim to acts not involving physical injury as defense.

In any prosecution for an offense, it is a defense that the victim consented to the act done, provided that: (1) The act did not involve or threaten physical injury; and (2) Such consent negatives an element of the offense. Any person who enters the presence of other people consents to the normal physical contacts incident to such presence.

Del. Code tit. 11, § 452 Consent of victim to inflictions of physical injury as defense.

In any 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: (1) The physical injury done or threatened by the conduct consented to is not serious physical injury; or (2) 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.

Del. Code tit. 11, § 453 Circumstances negativing consent as defense.

Unless otherwise provided by this Criminal Code or by the law defining the offense, consent of the victim does not constitute a defense if: (1) It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense unless the defendant believes the victim is legally competent; or (2) It is given by a person who, because of youth, mental illness, mental condition, mental defect, serious mental disorder, psychiatric disorder 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; or (3) It is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or (4) It is induced by force, duress or deception.

Del. Code tit. 11, § 454 Knowledge of victim’s age.

Notwithstanding any provision of law to the contrary, it is no defense for an offense or sentencing provision defined in this title or in Title 16 or 31 which has as an element of such offense or sentencing provision the age of the victim that the accused did not know the age of the victim or reasonably believed the person to be of an age which would not meet the element of such offense or sentencing provision unless the statute defining such offense or sentencing provision or a statute directly related thereto expressly provides that knowledge of the victim’s age is an element of the offense or that lack of such knowledge is a defense.

Del. Code tit. 11, § 461 Justification — A defense.

In any prosecution for an offense, justification, as defined in §§ 462-471 of this title, is a defense.

Del. Code tit. 11, § 462 Justification — Execution of public duty.

(a) Unless inconsistent with the ensuing sections of this Criminal Code defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable when it is required or authorized by a provision of law or by a judicial decree, including: (1) Laws defining duties and functions of public officers; (2) Laws defining duties of private citizens to assist public servants in the performance of certain of their functions; (3) Laws governing the execution of legal process; (4) Laws governing the military services and the conduct of war; and (5) Judgments or orders of competent courts or tribunals. (b) The justification afforded by subsection (a) of this section applies when: (1) The defendant’s conduct is required or authorized by the judgment or order of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; or (2) The defendant believes the conduct to be required or authorized to assist a public officer in the performance of the officer’s duties, notwithstanding that the officer exceeded the officer’s legal authority.

Del. Code tit. 11, § 463 Justification — Choice of evils.

Unless inconsistent with the ensuing sections of this Criminal Code defining justifiable use of physical force, or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the defendant, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.

Del. Code tit. 11, § 464 Justification — Use of force in self-protection.

(a) The use of force upon or toward another person is justifiable when the defendant reasonably believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion. (b) Except as otherwise provided in subsections (d) and (e) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as the person reasonably believes them to be when the force is used, without retreating, surrendering possession, doing any other act which the person has no legal duty to do or abstaining from any lawful action. (c) The use of deadly force is justifiable under this section if the defendant reasonably believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat. (d) The use of force is not justifiable under this section to resist an arrest which the defendant knows or should know is being made by a peace officer, whether or not the arrest is lawful. (e) The use of deadly force is not justifiable under this section if: (1) The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter; or (2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that: a. The defendant is not obliged to retreat in or from the defendant’s dwelling; and b. The defendant is not obliged to retreat in or from the defendant’s place of work, unless the defendant was the initial aggressor; and c. A public officer justified in using force in the performance of the officer’s duties, or a person justified in using force in assisting an officer or a person justified in using force in making an arrest or preventing an escape, need not desist from efforts to perform the duty or make the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.

Del. Code tit. 11, § 465 Justification — Use of force for the protection of other persons.

(a) The use of force upon or toward the person of another is justifiable to protect a third person when: (1) The defendant would have been justified under § 464 of this title in using such force to protect the defendant against the injury the defendant reasonably believes to be threatened to the person whom the defendant seeks to protect; and (2) Under the circumstances as the defendant reasonably believes them to be, the person whom the defendant seeks to protect would have been justified in using such protective force; and (3) The defendant reasonably believes that intervention is necessary for the protection of the other person. (b) Although the defendant would have been obliged under § 464 of this title to retreat, to surrender the possession of a thing or to comply with a demand before using force in self-protection, there is no obligation to do so before using force for the protection of another person, unless the defendant knows that the defendant can thereby secure the complete safety of the other person. (c) When the person whom the defendant seeks to protect would have been obliged under § 464 of this title to retreat, to surrender the possession of a thing or to comply with a demand if the person knew that the person could obtain complete safety by so doing, the defendant is obliged to try to cause the person to do so before using force in the person’s protection if the actor knows that complete safety can be secured in that way. (d) Neither the defendant nor the person whom the defendant seeks to protect is obliged to retreat when in the other’s dwelling or place of work to any greater extent than in their own.

Del. Code tit. 11, § 466 Justification — Use of force for the protection of property.

(a) The use of force upon or toward the person of another is justifiable when the defendant reasonably believes that such force is immediately necessary: (1) To prevent the commission of criminal trespass or burglary in a building or upon real property in the defendant’s possession or in the possession of another person for whose protection the defendant acts; or (2) To prevent entry upon real property in the defendant’s possession or in the possession of another person for whose protection the defendant acts; or (3) To prevent theft, criminal mischief or any trespassory taking of tangible, movable property in the defendant’s possession or in the possession of another person for whose protection the defendant acts. (b) The defendant may in the circumstances named in subsection (a) of this section use such force as the defendant reasonably believes is necessary to protect the threatened property, provided that the defendant first requests the person against whom force is used to desist from interference with the property, unless the defendant reasonably believes that: (1) Such a request would be useless; or (2) It would be dangerous to the defendant or another person to make the request; or (3) Substantial harm would be done to the physical condition of the property which is sought to be protected before the request could effectively be made. (c) The use of deadly force for the protection of property is justifiable only if the defendant reasonably believes that: (1) The person against whom the force is used is attempting to dispossess the defendant of the defendant’s dwelling otherwise than under a claim of right to its possession; or (2) The person against whom the deadly force is used is attempting to commit arson, burglary, robbery or felonious theft or property destruction and either: a. Had employed or threatened deadly force against or in the presence of the defendant; or b. Under the circumstances existing at the time, the defendant reasonably believed the use of force other than deadly force would expose the defendant, or another person in the defendant’s presence, to the reasonable likelihood of serious physical injury. (d) Where a person has used force for the protection of property and has not been convicted for any crime or offense connected with that use of force, such person shall not be liable for damages or be otherwise civilly liable to the one against whom such force was used.

Del. Code tit. 11, § 467 Justification — Use of force in law enforcement.

(a) The use of force upon or toward the person of another is justifiable when: (1) The defendant is making an arrest or assisting in making an arrest and reasonably believes that such force is immediately necessary to effect the arrest; or (2) The defendant is attempting to arrest an individual that has taken a hostage, and refused to comply with an order to release the hostage; and a. The defendant reasonably believes that the use of force is necessary to prevent physical harm to any person taken hostage; or b. The defendant has been ordered by an individual the defendant reasonably believes possesses superior authority or knowledge to apply the use of force. (b) The use of force is not justifiable under this section unless: (1) The defendant makes known the purpose of the arrest or reasonably believes that it is otherwise known or cannot reasonably be made known to the person to be arrested; and (2) When the arrest is made under a warrant, the warrant is valid or reasonably believed by the defendant to be valid; or (3) When the arrest is made without a warrant, the defendant reasonably believes the arrest to be lawful. (c) The use of deadly force is justifiable under this section if all other reasonable means of apprehension have been exhausted, and: (1) The defendant reasonably believes the arrest is for any crime involving physical injury or threat thereof, and the deadly force is directed at a vehicle to disable it for the purpose of effecting the arrest, or the defendant reasonably believes the arrest is for a felony involving physical injury or threat thereof; (2) The defendant reasonably believes that the force employed creates no substantial risk of injury to innocent persons; and (3) The defendant reasonably believes that there is a substantial risk that the person to be arrested will cause death or serious physical injury, or will never be captured if apprehension is delayed. (d) The use of force to prevent the escape of an arrested person from custody is justifiable when the force could justifiably have been employed to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a peace officer is justified in using any force, including deadly force, which the person reasonably believes to be immediately necessary to prevent the escape of a person from a jail, prison or other institution for the detention of persons charged with or convicted of a crime. (e) The use of force upon or toward the person of another is justifiable when the defendant reasonably believes that such force is immediately necessary to prevent such other person from committing suicide, inflicting serious physical injury upon the person’s self or committing a crime involving or threatening physical injury, damage to or loss of property or a breach of the peace, except that the use of deadly force is not justifiable under this subsection unless: (1) The defendant reasonably believes that there is a substantial risk that the person whom the defendant seeks to prevent from committing a crime will cause death or serious physical injury to another unless the commission of the crime is prevented and that the use of deadly force presents no substantial risk of injury to innocent persons; or (2) The defendant reasonably believes that the use of deadly force is necessary to suppress a riot or mutiny after the rioters or mutineers have been ordered to disperse and warned, in any manner that the law may require, that such force will be used if they do not obey. (f) The use of deadly force is justifiable under this section if the defendant is attempting to arrest an individual that has taken a hostage, and has refused to comply with an order to release the hostage; and (1) The defendant reasonably believes that the use of force is necessary to prevent physical harm to any person taken hostage, or the defendant has been ordered by an individual the defendant reasonably believes possesses superior authority or knowledge to apply the use of force; and (2) The defendant reasonably believes that the force employed creates no substantial risk of injury to innocent persons; and (3) The defendant or a person of superior authority or knowledge who order the use of deadly force reasonably believes that there is a substantial risk that the person to be arrested will cause death or serious physical injury.

Del. Code tit. 11, § 468 Justification — Use of force by persons with special responsibility for care, discipline or safety of others.

The use of force upon or toward the person of another is justifiable if it is reasonable and moderate and: (1) The defendant is the parent, guardian, foster parent, legal custodian or other person similarly responsible for the general care and supervision of a child, or a person acting at the request of a parent, guardian, foster parent, legal custodian or other responsible person, and: a. The force is used for the purpose of safeguarding or promoting the welfare of the child, including the prevention or punishment of misconduct; and b. The force used is intended to benefit the child, or for the special purposes listed in paragraphs (2)a., (3)a., (4)a., (5), (6) and (7) of this section. The size, age, condition of the child, location of the force and the strength and duration of the force shall be factors considered in determining whether the force used is reasonable and moderate; but c. The force shall not be justified if it includes, but is not limited to, any of the following: Throwing the child, kicking, burning, cutting, striking with a closed fist, interfering with breathing, use of or threatened use of a deadly weapon, prolonged deprivation of sustenance or medication, or doing any other act that is likely to cause or does cause physical injury, disfigurement, mental distress, unnecessary degradation or substantial risk of serious physical injury or death; or (2) The defendant is a teacher or a person otherwise entrusted with the care or supervision of a child for a special purpose, and: a. The defendant reasonably believes the force used is necessary to further the special purpose, including the maintenance of reasonable discipline in a school, class or other group, and that the use of force is consistent with the welfare of the child; and b. The degree of force, if it had been used by the parent, guardian, foster parent or legal custodian of the child, would be justifiable under paragraph (1)a. and b. of this section and not enumerated under paragraph (1)c. of this section; or (3) The defendant is the guardian or other person similarly responsible for the general care and supervision of a person who is incompetent, and: a. The force is used for the purpose of safeguarding or promoting the welfare of the person who is incompetent, including the prevention of misconduct, or, when such person who is incompetent is in a hospital or other institution for care and custody, for the maintenance of reasonable discipline in such institution; and b. The force used is reasonable and moderate; the size, age, condition of the person who is incompetent, location of the force and the strength and duration of the force shall be factors considered in determining whether the force used is reasonable and moderate; and c. The force is not enumerated under paragraph (1)c. of this section; and d. The force is not proscribed as abuse or mistreatment under Chapter 11 of Title 16; or (4) The defendant is a doctor or other therapist or a person assisting at the doctor’s or other therapist’s direction, and: a. The force is used for the purpose of administering a recognized form of treatment which the defendant reasonably believes to be adapted to promoting the physical or mental health of the patient; and b. The treatment is administered with the consent of the patient or, if the patient is a minor or a person who is incompetent, with the consent of a parent, guardian or other person legally competent to consent in the patient’s behalf, or the treatment is administered in an emergency when the defendant reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent; or (5) The defendant is a warden or other authorized official of a correctional institution, or a superintendent, administrator or other authorized official of the Division of Youth Rehabilitative Service, and: a. The defendant reasonably believes that the force used is necessary for the purpose of enforcing the lawful rules or procedures of the institution; and b. The nature or degree of force used is not forbidden by any statute governing the administration of the institution; and c. If deadly force is used, its use is otherwise justifiable under this Criminal Code; or (6) The defendant is a person responsible for the safety of a vessel or an aircraft or a person acting at the responsible person’s direction, and: a. The defendant reasonably believes that the force used is necessary to prevent interference with the operation of the vessel or aircraft or obstruction of the execution of a lawful order; and b. If deadly force is used, its use is otherwise justifiable under this Criminal Code; or (7) The defendant is a person who is authorized or required by law to maintain order or decorum in a vehicle, train or other carrier or in a place where others are assembled, and: a. The defendant reasonably believes that the force used is necessary for such purpose; and b. The force used is not designed to cause or known to create a substantial risk of causing death, physical injury or extreme mental distress.

Del. Code tit. 11, § 469 Justification — Person unlawfully in dwelling.

In the prosecution of an occupant of a dwelling charged with killing or injuring an intruder who was unlawfully in said dwelling, it shall be a defense that the occupant was in the occupant’s own dwelling at the time of the offense, and: (1) The encounter between the occupant and intruder was sudden and unexpected, compelling the occupant to act instantly; or (2) The occupant reasonably believed that the intruder would inflict personal injury upon the occupant or others in the dwelling; or (3) The occupant demanded that the intruder disarm or surrender, and the intruder refused to do so.

Del. Code tit. 11, § 470 Provisions generally applicable to justification.

(a) When the defendant reasonably believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such relief would establish a justification under § § 462-468 of this title but the defendant is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of the use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability. (b) When the defendant is justified under §§ 462-468 of this title in using force upon or toward the person of another but the defendant recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for an offense involving recklessness or negligence towards innocent persons.

Del. Code tit. 11, § 471 Definitions relating to justification.

(a) “Deadly force” means force which the defendant uses with the purpose of causing or which the defendant knows creates a substantial risk of causing death or serious physical injury, including the use of a chokehold as “chokehold” is defined under § 607A of this title. Purposely firing a firearm or projectile weapon in the direction of another person or at a vehicle in which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the defendant’s purpose is limited to creating an apprehension that deadly force will be used if necessary, does not constitute deadly force. (b) “Dwelling” means any building or structure, though movable or temporary, or a portion thereof, which is for the time being the defendant’s home or place of lodging. (c) “Force,” in addition to its ordinary meaning, includes confinement. (d) “Physical force” means force used upon or directed toward the body of another person. (e) (1) “Reasonably believes,” when applied to a defendant who is not a law-enforcement officer acting in the officer’s official capacity, means holds a belief that is reasonable from the viewpoint of a reasonable person in the defendant’s situation under the circumstances. (2) “Reasonably believes,” when applied to a defendant who is a law-enforcement officer acting in the officer’s official capacity, means holds a belief that is reasonable from the viewpoint of a reasonable law-enforcement officer in the defendant’s situation under the circumstances. (f) “Unlawful force” means force which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense (such as the absence of intent, negligence or mental capacity; duress; youth; or diplomatic status) not amounting to a privilege to use the force. Assent constitutes consent, within the meaning of this section, whether or not it otherwise is legally effective, except assent to the infliction of death or serious bodily harm.

Del. Code tit. 11, § 472 Mitigating factors and defenses based on a victim’s sexual orientation, sex, gender, gender identity, or sex assigned at birth.

(a) Notwithstanding any other provision of this Criminal Code, in any prosecution or sentencing for an offense, a defendant is not justified in using force against another based on the discovery of, knowledge or belief about, or the potential or actual disclosure of the victim’s actual or perceived sexual orientation, sex, gender, gender identity, or sex assigned at birth. (b) Notwithstanding any other provision of this Criminal Code, in any prosecution or sentencing for an offense, for the purposes of determining whether there is a reasonable explanation or excuse for the existence of extreme emotional disturbance or other asserted mitigating factor or circumstance, such explanation or excuse is not reasonable if it is based on the discovery of, knowledge or belief about, or the potential or actual disclosure of the victim’s actual or perceived sexual orientation, sex, gender, gender identity, or sex assigned at birth. (c) Notwithstanding any other provision of this Criminal Code, in any prosecution or sentencing for an offense, a defendant does not, based on the discovery of, knowledge or belief about, or the potential or actual disclosure of the victim’s actual or perceived sexual orientation, sex, gender, gender identity, or sex assigned at birth, suffer from a mental illness, mental defect, mental disorder, serious mental disorder, psychiatric disorder, or other impairment affecting or impacting the defendant’s mental state relating to questions of any of the following: (1) Intent. (2) Knowledge. (3) Capacity to appreciate the wrongfulness of the defendant’s conduct. (4) Disturbance of the defendant’s thinking, feeling, or behavior. (5) Culpability. (6) Willpower to choose whether to do or refrain from doing an act. (7) Ability to distinguish right from wrong.

Del. Code tit. 11, § 475 Immunity as an affirmative defense.

In any prosecution for an offense, it is an affirmative defense that the accused was granted immunity from prosecution for that offense by the Attorney General or a Deputy Attorney General or by court order pursuant to § 3506 of this title. It is also an affirmative defense that the accused was granted immunity from prosecution for a different offense when prosecution for the offense now charged would have been barred by prosecution for the offense as to which immunity was granted under § 208 of this title; provided, that the Attorney General or a Deputy Attorney General may, in granting immunity, stipulate that the immunity applies only to a specific offense, in which case effect shall be given to the stipulation.

Del. Code tit. 11, § 476 Racketeering activities; excluded defenses.

(a) In any prosecution under Chapter 15 of this title where it is alleged that the offender or offenders were acting as members of a group or informal organization it shall be no defense to such prosecution or were engaged in any form of racketeering or racketeering activity, that: (1) One or more members of the group or organization are not criminally responsible for the offense for which the prosecution is brought; (2) One or more members of the group or organization have been acquitted, have not been prosecuted or convicted, have been convicted of a different offense or are immune from prosecution; (3) A different person has been charged with, acquitted or convicted of any offense set forth in Chapter 15 of this title. (b) Once an act of racketeering has been initiated by a group and there is a subsequent change in the number or identity of persons in such group or organization, as long as 2 or more of the original members remain in such group or are involved in a continuing course of conduct constituting an offense under Chapter 15 of this title, it shall be no defense to claim that the defendant was not part of the group or organization.

Del. Code tit. 11, § 477 Organized crime; renunciation.

(a) It is an affirmative defense to a prosecution under § 1503 of this title, that under circumstances manifesting a voluntary and complete renunciation of the criminal objective, the defendant withdrew from the proposed or intended unlawful activity before the commission of an offense set forth in Chapter 15 of this title; and that such person took further affirmative action that, in whole or in part, prevented the commission of the offense. (b) Renunciation is not “voluntary,” if it is motivated in whole or in part: (1) By circumstances not present or apparent at the inception of the defendant’s course of conduct that increased the probability of detection or apprehension, or that made more difficult the accomplishment of the objective; or (2) By a decision to postpone the criminal conduct until another time, or to transfer the criminal act to another (but similar) objective or victim. (c) Evidence that the defendant withdrew from the unlawful activity before commission of an offense set forth in Chapter 15 of this title, and made substantial effort to prevent the commission of an offense under that chapter, shall be admissible as mitigation at the hearing on punishment if such person has been found guilty; and in the event of a finding of renunciation under this section, the punishment of such person shall be less than that which would otherwise be imposed. The Court shall determine the extent and genuineness of the renunciation, and determine the reduction.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title11/c004/index.htmlFetched: 6/28/2026

Starting a business in Delaware? Delaware LLC guide: costs and requirements