(a) Notwithstanding any other provision of this Code to the contrary, and except as provided in this section, in any prosecution for any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, any opinion evidence, reputation evidence and evidence of specific instances of the complaining witness’ sexual conduct, or any of such evidence, is not admissible by the defendant in order to prove consent by the complaining witness.
(b) This section, however, shall not be applicable to evidence of the complaining witness’ sexual conduct with the defendant.
(c) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and such evidence or testimony relates to the complaining witness’ sexual conduct, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence introduced by the prosecutor or given by the complaining witness.
(d) Nothing in this section shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in § 3508 of this title.
(e) As used in this section, “complaining witness” shall mean the alleged victim of the crime charged, the prosecution of which is subject to this section.
60 Del. Laws, c. 257,
§
1;
66 Del. Laws, c. 269,
§
6;
71 Del. Laws, c. 285,
§
2;
Notes of Decisions
Cited in
9
cases (
2 in the last 5 years), 1974–2026 · leading case:
Smith v. State, 317 A.2d 20 (Del. 1974).
Smith v. State, 317 A.2d 20 (Del. 1974).
“11 Del.C. § 3509 provides: “(a) In a criminal prosecution, the volun-untary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value.”
Johnson v. State, 338 A.2d 124 (Del. 1975).
“Glass on February 20, 1973 wherein she described generally her assailant’s clothes and gave a somewhat different description of him than she had given two days earlier.”
Huggins v. State, 337 A.2d 28 (Del. 1975).
· cites it 2× “PER CURIAM: These appeals are controlled by our interpretation today of 11 Del.C. § 3509 *29 (which now appears in the 1974 Revision of the Delaware Code Annotated as 11 Del.”
Stevens v. Delaware Corr. Ctr., 152 F. Supp. 2d 561 (D. Del. 2001).
“See 11 Del. C. § 3509(b). 25 . For example, it appears that the DNA evidence introduced at trial related only to semen, not to blood.”
Baldwin v. State (Del. 2026).
· cites it 3× “§ 3508 or to prove consent under 11 Del. C. § 3509. 13 Accordingly, the court 10 Id.”
Portillo v. State, 211 So. 3d 1135 (Fla. 3d DCA 2017).
· cites it 2× “§ 54 -86f; 11 Del. Code Ann. § 3509; D.C. Code § 22-3022 ; Ga.”
State of Delaware v. Simmers. (Del. Super. Ct. 2015).
· cites it 3× “See also 11 Del. C. § 3509(a) (“Notwithstanding any other provision of this Code to the contrary, and except as provided in this section, in any prosecution for any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, any opinion…”
State v. Romeo (Del. Super. Ct. 2019).
“The Court in Huggins reviewed 11 Del. C. § 3509, which now appears in the 1974 Revision of the Delaware Code Annotated as 11 Del.”
Berry v. State (Del. 2025).
“The statute originally was codified at 11 Del. C. § 3509. It has not changed substantively since it was adopted.”
— 11 Del. C. § 3509(a) — 1 case
State of Delaware v. Simmers. (Del. Super. Ct. 2015).
“See also 11 Del. C. § 3509(a) (“Notwithstanding any other provision of this Code to the contrary, and except as provided in this section, in any prosecution for any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, any opinion…”
— 11 Del. C. § 3509(b) — 1 case
Stevens v. Delaware Corr. Ctr., 152 F. Supp. 2d 561 (D. Del. 2001).
“See 11 Del. C. § 3509(b). 25 . For example, it appears that the DNA evidence introduced at trial related only to semen, not to blood.”
— 11 Del. C. § 3509(c) — 1 case
State of Delaware v. Simmers. (Del. Super. Ct. 2015).
“See also 11 Del. C. § 3509(a) (“Notwithstanding any other provision of this Code to the contrary, and except as provided in this section, in any prosecution for any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, any opinion…”
— 11 Del. C. § 3509(d) — 1 case
State of Delaware v. Simmers. (Del. Super. Ct. 2015).
“See also 11 Del. C. § 3509(a) (“Notwithstanding any other provision of this Code to the contrary, and except as provided in this section, in any prosecution for any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, any opinion…”
Annotations are extracted automatically from the opinions in the
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