Employment Harmful to Children

Texas Criminal Law

Employment Harmful to Children is a Texas offense that the state’s attorneys usually prosecute when someone reports that a child is working in an inappropriate, sexually-charged atmosphere like a strip club, sex club or pornography-related business. If you are convicted of Employment Harmful to Children in Texas, the severity of the punishment, including potential prison time, varies upon the age of the child victim. While this is always a felony sex crime, the outcome of your specific case depends heavily on the work performed by your criminal defense lawyer.

Employment Harmful to Children is classified in the Texas Penal Code under Title 9, “Offenses Against Public Order and Decency,” Chapter 43, “Public Indecency.” Other Public Indecency offenses in Texas include Prostitution, Obscenity, Sexual Performance by a Child and Possession of Child Pornography. These “public indecency” crimes are sex crimes, but they are not of a violent or assaultive nature.

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What is the current Texas law about Employment Harmful to Children?

The current Texas law defines the offense of Employment Harmful to Children in Penal Code Section §43.251 as follows:[1]

(b) A person commits an offense if the person employs, authorizes, or induces a child to work:

(1) in a sexually oriented commercial activity; or

(2) in any place of business permitting, requesting, or requiring a child to work nude or topless.

A simple way of defining this offense is that it is a crime to have a child work in a business that asks the child to be nude or topless, to have a child in an sex-related or “adult” industry. The important questions here are (1) when is a person a “child” under this law, (2) what is a “sexually oriented commercial activity” and (3) what does “induce” mean under the law. All of these questions are discussed below.

What is the range of punishment for the offense?

Employment Harmful to Children is an offense that can carry one of two different penalties, the penalty being determined by the age of the child involved. If the child is over the age of 14, then the offense carries a penalty of a second degree felony. If the child is under the age of 14, then the penalty is raised to a first degree felony, which can result in life imprisonment. Learn more about the range of punishments for Texas felony offenses

The punishment law was updated in 2017 with the passage of H.B. 1808, but it made only minor changes to the language, intending to clarify that you don’t need to be aware of the age of a child involved to suffer the penalty of the enhancement.[2]

I didn’t know that the worker was under 18 or 21, can I still be charged?

The law doesn’t require that a person know the age of the child. The law requires only that the person actually be a “child.” Until 2021, and for offenses alleged to have occured prior to 2021, “child” is defined for purposes of this law as a person under 18, however, as of September 1, 2021, “child” is defined as a person under 21.[3]

What is a “sexually oriented commercial activity“?

Section 43.251(a)(5) of the Texas Penal Code defines a “sexually oriented commercial activity” to be “a massage establishment, nude studio, modeling studio, love parlor, or other similar commercial enterprise the primary business of which is the offering of a service that is intended to provide sexual stimulation or sexual gratification to the customer.”

An important point to notice is that while the list includes multiple options, there may be other businesses that fall under this definition if the primary business is to provide a service that provides sexual stimulation or gratification. For example, a photographer who works exclusively with adult film actors and actresses might be considered to be providing a service that gives its customers (the people who end up buying the photos) sexual gratification, and could therefore fall under the definition of a “sexually oriented commercial activity.” A photographer who does art gallery shows and one particular show happens to show nudity or sexual themes might not fall under the definition because the primary business is not to provide a sexually stimulating service, but rather artistic photos. This is obviously a murky area, so you should consult a criminal lawyer to get advice about your specific situation.

I didn’t force the child to work nude or topless. Can I still be charged?

Texas law doesn’t require the state attorneys to prove “force” in order to obtain a conviction for Employment Harmful to Children. The child only has to have actually participated in the activities. If a child was ‘requested’ to work nude or topless, or ‘induced’ (which is undefined in the statute, but generally means “to try to convince”) to work in a sexually oriented commercial activity, then the state attorneys can obtain a conviction. The child does not have to have actually engaged in the sexually-oriented activity, nor does the child ever have to have actually workd nude or topless at any time. The action that makes this situation a crime is the adult’s hiring or attempt to hire the child.

I only own the business, I didn’t personally ask the child to participate. Does that change the offense?

Texas law does not require that you personally tried to get the child to work in the inappropriate work conditions. The law allows for a conviction for Employment Harmful to Children even if you only authorized a child to work in either a sexually oriented commercial activity or in a place where the child is authorized, asked, or made to be nude or topless. And the law regarding what it means to “authorize” is not specifically defined, so the state’s attorneys can attempt to convict you by claiming that you authorized the child to work in the business by some indirect means or that you were reckless in the operation of the business.

As an owner, manager, or supervisor in a sexually oriented business or a place where employees are nude or topless, you may be presumed to have been reckless to the risk of an underage child working there. For example, if an owner of a topless bar did not have a written policy stating that all managers and supervisors were required to check the ID of any potential employee, a state’s attorney could more easily obtain a conviction.

I am not affiliated with the place of business, can I still be charged with the offense?

Similar to the situation where an owner didn’t personally engage in an attempt to hire a child, a person who is not affiliated with the business could be convicted of Employment Harmful to Children if the person “induced” the child. The law requires that a person ‘induce’ a child to be employed in the business and does not require that the person who induced the behavior actually worked for the business. For example, an adult who encourages a child relative to work at an inappropriate place could be charged with the offense.

What does “nude” mean?

Under Texas law regarding Employment Harmful to Children, “nude” means:[4]

a child who is: (A) entirely unclothed; or (B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts, if the child is female, or any portion of the genitals or buttocks.

Legal References:

^1. Texas Penal Code §43.251^2. H.B. 1808, 85th Legislature, Section 13, effective September 1, 2017. Section 43.251(c)&(d), Penal Code, as amended by H.B. 1808:

(c) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if the victim child is younger than 14 years of age at the time the offense is committed, regardless of whether the actor knows the age of the victim at the time of the offense.

(d) Conduct under this section constitutes an offense regardless of whether the actor knows the age of the victim at the time of the offense.

The language in bold was added by H.B. 1808, and the language with strikethrough was removed.^3. Texas Penal Code §43.251(a)(1), as amended by S.B. No. 766, 87th Texas Legislature, Section 8 and S.B. No. 315, 87th Texas Legislature, Section 8 – “‘Child’ means a person younger than 21 years of age.”^4. Texas Penal Code §43.251(a)(4)

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