Crime to Sexually Proposition, Knowing It's Likely to Annoy, Offend, or Alarm

That's the law in Delaware, it turns out.

Just came across this statute (solely through my research, I swear!); it has been around since 1985:

A person is guilty of sexual harassment [a misdemeanor] when … [t]he person suggests, solicits, requests, commands, importunes or otherwise attempts to induce another person to have sexual contact or sexual intercourse or unlawful sexual penetration with the actor, knowing that the actor is thereby likely to cause annoyance, offense or alarm to that person.

Compare the Delaware general ban on "harassment," which covers some other kinds of communications but requires an intent (i.e., "conscious object") to harass, annoy, or alarm and not mere knowledge of the likelihood that the behavior would be annoying, alarming, or offensive.

Comments

[MatthewSlyfield]

Has it ever been enforced? Has it survived an appellate challenge to it's validity?

[Eugene Volokh]

Yes, it has been enforced, though to my knowledge there hasn't been a challenge to its validity.

[Stephen Lathrop]

Thursday Open Thread is not responding.

[Krayt]

The purpose of speech is to have an effect on people. Annoyance is one such valid effect, as is sex and reproduction.

[Purple Martin]

Yes, as is "offense or alarm." And the purpose of the statute in question is to either forestall or criminally penalize, not speech that merely annoys offends or alarms, but speech that "attempts to induce another person to have sexual contact or sexual intercourse or unlawful sexual penetration" and annoys offends or alarms.

And if you think speech has the effect of sex and reproduction...I think you're doing it wrong.

[Krayt]

There are plenty of Don Juans who would disagree.

David Spade, yes that one, attributed his endless stream of babes to learning about the bands all the cool kids listened to, so he could talk their language.

[Krychek_2]

The statute requires "knowing" that it is likely to cause annoyance. Sometimes, you just don't know until you ask.

[Brett Bellmore]

So much for the old dating rule that "Ten slaps are worth once in the sack"; Apparently it's only legal to proposition someone if the odds are better than 50-50.

[Purple Martin]

"Sometimes, you just don't know until you ask."

...and sometimes you do. I suppose exactly when you do and do not, is a decision for the jury.

By the way, for a usage example, look up the character, Captain Ezekiel Bradbury 'Me Lay' Marston V, in Richard Hooker's M*A*S*H.

[Krychek_2]

I think most people would agree that you shouldn't ask unless you think the other person is likely interested, and most people would also agree that mistakes are sometimes made in interpreting what the other person is actually thinking.

By the same token, most people don't go around volunteering their sexual fantasies, and so you really don't know until you ask what the other person might be open to. Discretion, though, remains the better part of valor.

Years ago I struck up a conversation with someone in a biker bar who had a human sacrifice fantasy. Five minutes into the conversation I realized that he really was looking for someone to kill him. I did not go home with him and I've often wondered if he was ever successful in finding someone to help him out. If that's your fantasy, how exactly do you find a kindred soul?

[BadLib]

If that's your fantasy, how exactly do you find a kindred soul?

I suppose on the internet like this guy did. Isn't the internet a grand innovation?

[Michael P]

Presumably a heartfelt "fuck you" would not qualify, as the sense most likely to cause annoyance, offense or alarm is not strictly speaking a proposition for sexual contact, intercourse or penetration? And "fuck your mother" would not qualify, because the speaker would not be directly involved in the act?

[dunlop212]

"Knowing" would cover someone hitting on numerous women, thinking that one might say yes.

"Intent" would cover someone who wants the woman to say "no."

I think this used to be called "mashing," and was illegal in lots of places years ago. "Criminal Flirting" would be a better name for it.

[BadLib]

Politicians engage in mashing all the time in an attempt to screw me. During election season my mailbox is full of politicians propositioning me.

[ReaderY]

Since Lawrence only covered conduct in private, there were some post-Lawrence decisions that simple solicitation (no intend to harass, nothing commercial) survives Lawrence if done in a public place.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Does this cover hair-sniffing?

[Lee Moore]

to induce another person to have sexual contact or sexual intercourse or unlawful sexual penetration with the actor

Interesting.

When is "sexual intercourse" not already "sexual contact" ? Perhaps when you use a condom ? Really ? Is condomised sexual intercourse not sexual contact ?

But if so, then what's this about "sexual penetration" ? When is "sexual intercourse" not already "sexual penetration" ? Perhaps when other holes are involved. But it's only "unlawful sexual penetration" that is caught here. So lawful sexual penetration is OK. So long as it's not sexual contact, or sexual intercourse.

So, if I understand correctly, importuning someone for, let us say, oral penetration with a condom on, is OK ?

[Davy C]

By the definitions in Delaware law, you could have sexual intercourse without committing sexual penetration yourself if you were the one being penetrated.

Although it would seem that sexual intercourse would ordinarily involve sexual contact, there might be a loophole if the sexual intercourse was not intended be sexual in nature, since the definition of sexual contact requires intent but the definition of sexual intercourse does not.

And no, the condom won't help. Even clothes wouldn't save you; it's still sexual contact even if touching occurs through clothing.

[NOVA Lawyer]

I think it probably is intended to highlight that sexual contact means more than sexual intercourse. I read it as probably better written as "sexual intercourse or any other sexual contact".

But it's also kind of a belt and suspenders approach.

Yes, sexual intercourse is subsumed in sexual contact, but something is gained (in the sense that they intended the reach to be broad) by making clear that sexual contact is broader than sexual intercourse.

I am assuming this hasn't been challenged because it is probably something which is pleaded down to from a more serious sexual assault/harassment charge. Taken literally, this seems way too broad (there are all sorts of criminal husbands and wives in Delaware under the plain language of this statute, to say nothing of dating couples).

[NOVA Lawyer]

A quick perusal of cases suggests the statute is generally only used where there has been unwanted, nonconsensual sexual contact and as well as simultaneous or later propositions. Usually in the workplace. Attorneys seem to be disproportionately accused of this conduct......

[John F. Carr]

Are you looking at trials or appeals? Perhaps attorney defendants are more likely to generate findable words from the Appeals Court.

[NOVA Lawyer]

Yes, more accurately, they are disproportionately represented in reported cases (on my cursory review), which could also because they are more likely to appeal and vigorously fight the legal side of the allegations.

[Larvell Blanks]

What if there are three women in a room, and you think each of them has a 51% chance of being offended and a 49% chance of saying “Sure!”? Can you say to the group, “Anyone want to have sex?”

[NOVA Lawyer]

Actually, if the answer to your question is "yes" because there is a greater than 50/50 probability that someone will say "sure", then you really only need a group of three women where you reasonably think your chances with each of them is 21% "sure", 79% annoyed (assuming the variables operate independently, unlikely if you make a generalized request to the room).

Of course, the statute could be interpreted as being three requests and, so, three misdemeanors.

Should Delaware daters now ask, "how likely are you to be annoyed if I suggest we go back to my place?"

[GKHoffman]

Is it still a violation if you don't add "with me?"

[John F. Carr]

"or unlawful sexual penetration with the actor, knowing that the actor is thereby likely to cause annoyance"

Your honor, even though she said no I didn't think she would find my penis annoying.

In Massachusetts we had a law against annoying and accosting a person of the opposite sex, a few years ago amended to prohibit annoying and accosting people in general. It has been construed to require conduct of severity comparable to what the Delaware statute proscribes.
https://www.mass.gov/files/documents/2016/10/vr/6600-annoying-and-accosting-persons-of-opposite-sex.pdf

[gormadoc]

What if there are only two and you know one woman will always say yes and one will always say no, but you don't know which is which?

[John F. Carr]

Obviously the one with the goatee, the evil twin, the bad girl, will say yes.

[Krayt]

attempts to induce another person to have sexual contact or sexual intercourse or unlawful sexual penetration with the actor

Why throw this into this grab bag of totalitarian idiocy! It's already illegal.

[Ridgeway]

I wonder if DE had sodomy laws on the books at the time, and that is what the bolded language was intended to cover.

[Jimmy the Dane]

Once in Delaware, I had a dispute with a guy that involved telling him where he could put his product and how it should be inserted. Wonder if that would have qualified....?

[PeteRR]

"If I say you have a lovely body, will you hold it against me?"

[James K. Polk]

Is kissing considered "sexual contact"? So "how about a kiss?" might be a crime if the person has already told you to fuck right off before?

Maybe putting up mistletoe will now be seen as an attempt at entrapment.