The Failure to Stop or Report Aggravated Sexual Assault of Child offense gives law enforcement in Texas the right to arrest you if they believe you encountered a situation in which you “should know” that a child might be being sexually assaulted (or if you witnessed the sexual assault itself) and did nothing about it. For this law to apply, the sexual assault has to be of a specific type, either Aggravated Sexual Assault or Continuous Sexual Abuse of Young Child or Children. Learn more detailed information about the Failure to Stop or Report Aggravated Sexual Assault of Child offense below.

This law does not apply to people who have a heightened responsibility for the child (like a parent or guardian or teacher), as described below. People with those types of enhanced responsibilities are covered under the felony offense of Injury to a Child if they fail to report abuse.

Failure to Stop or Report Aggravated Sexual Assault of Child is classified in the Texas Penal Code under Title 8 “Offenses Against Public Administration”, Chapter 38 “Obstructing Governmental Operation.

What is the current Texas law about Failure to Stop or Report Aggravated Sexual Assault of Child?

The current Texas law defines the offense of Failure to Stop or Report Aggravated Sexual Assault of Child in Penal Code Section §38.17 as follows:^[1]

(a) A person, other than a person who has a relationship with a child described by Section 22.04(b), commits an offense if:

(1) the actor observes the commission or attempted commission of an offense prohibited by Section 21.02 or 22.021(a)(2)(B) under circumstances in which a reasonable person would believe that an offense of a sexual or assaultive nature was being committed or was about to be committed against the child;

(2) the actor fails to assist the child or immediately report the commission of the offense to a peace officer or law enforcement agency; and

(3) the actor could assist the child or immediately report the commission of the offense without placing the actor in danger of suffering serious bodily injury or death.

Subsection (a) excludes the people covered under Section 22.04(b) of the Penal Code. That part of the penal code deals with the offense of Injury to a Child, and subsection (b) of 22.04 specifically describes people whose failure to act in defense of a child under certain circumstances is punishable as a felony. Who are the people who have an enhanced duty to report child abuse?

Subsection (b)(1) of the Failure to Stop or Report Aggravated Sexual Assault of Child offense applies to people who have either seen the child abuse or seen “attempted” child abuse, which could theoretically cover almost any interaction between an older person and younger person. I have concerns about the constitutionality of prohibited such a broad range of behavior. Subsection (b)(1) limits your obligation to report such behavior to instances in which a “reasonable person would believe” child abuse is occurring, or might occur in the future.

How can I be charged with Failure to Stop or Report Aggravated Sexual Assault of Child?

You can be charged with Failure to Stop or Report Aggravated Sexual Assault of Child if the state’s attorneys believe that each of the elements of 38.17(a) as described in the section above have been met. You do not need to have any special relationship with a child. If you have a special relationship with a child, like being their caretaker or teacher, you are covered under a more severe law, Injury to a Child.

What is the punishment for Failure to Stop or Report Aggravated Sexual Assault of Child?

A conviction for Failure to Stop or Report Aggravated Sexual Assault of Child is punished as a Class A misdemeanor,^[2] with a maximum possible fine under Texas state law of up to $4,000 and jail time of up to one year. Learn about the differences between grades of felonies and misdemeanors

Who are the people who have an enhanced duty to report child abuse?

You have an enhanced duty to report because you’re covered by Section 22.04(b) if (1) you have a legal or statutory duty to act in defense of the child (like a teacher or other professional); or (2) you have assumed care, custody, or control of a child (this covers parents and guardians in addition to babysitters or anyone else who is taking care of the child).

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Legal References:

^1. Texas Penal Code §38.17^2. Texas Penal Code §38.17(b)