Indecency with a Child is the Texas offense that is commonly known as “Child Molestation.” In order to obtain a conviction for Indecency with a Child, the state’s lawyers must prove that the victim was under 17 years old and that the molestation was either by “exposure” (Indecency – Exposure) or by sexual “contact” (Indecency – Contact).
INDECENCY WITH A CHILD ATTORNEY FAQs
- What is the current Texas law about Indecency With a Child?
- What are the affirmative defenses to Indecency with a Child?
- What is the difference between “Indecency with a Child” and “Sexual Performance by a Child” under Texas law?
- Have you been charged with Indecency with a Child?
- What is sexual contact?
- What Is the age of consent in Texas?
- What is the penalty for an Indecency with a Child conviction?
- What is the statute of limitations for an Indecency with a Child charge?
- How long will I have to register as a sex offender if I am convicted of Indecency With a Child in Texas?
Have you been charged with Indecency With a Child? Book a consultation to discuss legal representation with criminal defense attorney Paul Saputo today.
Although Indecency with a Child is also closely related to the Texas offense of Sexual Performance by a Child, there are important differences. One main difference is the age of consent for each offense (in the case of indecency with a child, the age of consent is 17 years old, whereas the age of consent is 18 years old for sexual performance).
Indecency with a Child is one of the “Statutory Rape” charges in Texas, the other related law being Sexual Assault of a Child. Indecency with a Child covers a more types of sexual conduct between adults and children than what Sexual Assault covers. Indecency with a Child is also a lesser included offense of Sexual Assault of a Child, so if you could be charged with Sexual Assault of a Child, you could also be charged with Indecency with a Child.
What is the current Texas law about Indecency With a Child?
The current Texas law defines the offense of Indecency With a Child in Penal Code Section §21.11 as follows:[1]
(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex and regardless of whether the person knows the age of the child at the time of the offense, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or
(B) causes the child to expose the child’s anus or any part of the child’s genitals.
(the language in brackets was added, effective on September 1, 2017)[2]
Indecency with a Child is the Texas law that is commonly referred to as “Statutory Rape.” This is the basic age of consent law in Texas, placing the age for consent at 17 years old. A child under the age of 17 (so that is a 16 year old or below) cannot consent to any sexual acts with an adult, except under a few narrowly defined exceptions.
What are the affirmative defenses to Indecency with a Child?
There are two affirmative defenses to Indecency with a Child in Texas. The first affirmative defense requires an age difference of less than three years, and the people have to be of the opposite sex.[3] In addition, no duress, force, or threat may have been used and you must not already be a registrable sex offender.[4] The second affirmative defense is that the people are married.[5]
What is the difference between “Indecency with a Child” and “Sexual Performance by a Child” under Texas law?
The first crucial difference between Indecency with a Child and Sexual Performance by a Child under Texas law is the age of consent. The age of consent for Sexual Performance is 18 years old, and the age of consent for the statutory rape charge of Indecency with a Child is 17 years old.
The other critical difference between “Indecency with a Child” and “Sexual Performance by a Child” is the illegal behavior. In “Indecency with a Child” the forbidden activity is essentially any form of sexual contact. In “Sexual Performance by a Child” the forbidden activity is essentially a “performance” of some kind. It is important to read the full text of the statute and understand the relevant case law to fully flesh out this difference, but if you have been charged with either crime, you should contact a criminal defense attorney to discuss the specifics of your case.
Have you been charged with Indecency with a Child?
If you have been charged with Indecency with a Child, schedule an appointment with us immediately. Defending yourself against this charge is tricky, and it is definitely not something that you want to attempt to do yourself. The charge will usually involve challenging the word of the victim, who is a child and who will be looked at as the “victim” in this case–even if the child consented to the activity. This is never easy to do, and you need an experienced Texas sex crimes defense attorney who can help you navigate this situation and craft your best defense strategy.
What is sexual contact?
For the purposes of Indecency with a Child under Texas law, sexual contact is defined in Section 21.11(c):
(c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
What Is the age of consent in Texas?
Generally, the age of consent for most sexual activity in Texas is 17 years old. However, if you are 19 years old or younger, the age of consent may vary slightly. In addition, the age of consent in Texas actually varies upon the activity. If the activity is considered “sexual conduct” under the Sexual Performance law, the age of consent is 18 years old. Under the Indecency with a Child law, as described above, the age of consent for any type of sexual contact between an adult and a “child” is 17 years old.
The reason why the age of consent is different for younger people is that there are affirmative defenses under both the Indecency with a Child statute and the Sexual Performance statute that allow people who are only 2 or 3 years older (2 for Sexual Performance, and 3 for Indecency with a Child) than the child to assert the small difference as a defense.
What is the penalty for an Indecency with a Child conviction?
Indecency with a Child is punished as a second degree felony if it is charged under subsection (a)(1) (the Indecency with a Child – Sexual Contact) and as a third degree felony if it is charged under subsection (a)(2) (Indecency with a Child – Exposes).[6]
What is the statute of limitations for an Indecency with a Child charge?
There is no limitations period for an Indecency with a Child charge.[7] This means that the state of Texas could charge you with this offense any time after the offense is alleged to have been committed.
How long will I have to register as a sex offender if I am convicted of Indecency With a Child in Texas?
Whether you are convicted or placed on deferred adjudication probation, you will be required to register as a sex offender if you plead guilty to Indecency with a Child. However, under Texas law, the amount of time that you will be required to register depends on several different factors.
Convictions under 21.11(a)(1) (Indecency – Contact) are generally worse than convictions under 21.11(a)(2) (Indecency – Exposure). In most situations, Indecency – Contact convictions require mandatory lifetime registration,[8] while Indecency – Exposure convictions require only 10 year registration under Texas law.[9] The 10-year period of registration beings after the date of release from prison, the probation ends or the case is dismissed.[10]
The ten-year registration period for Indecency – Exposure convictions gets increased to lifetime registration “if before or after the person is convicted or adjudicated for the offense under Section 21.11(a)(2), Penal Code, the person receives or has received another reportable conviction or adjudication, other than an adjudication of delinquent conduct, for an offense or conduct that requires registration.”[11]
Another wrinkle in what makes this complicated is that there is a separate registration period under Federal law. However, if the federal registration period is shorter than the Texas registration period, you may be able to deregister. Learn more about the Texas deregistration process
Also, the age of the offender can come into play. If you were a juvenile, and your case had been transferred from juvenile court into a district court, the lifetime registration would be reduced to 10 years.[12]
Legal References:
^1. Texas Penal Code §21.11^2. Pursuant to H.B. 1808, 85th Texas Legislature, Section 3
^3. Texas Penal Code 21.11(b)(1)
(b) It is an affirmative defense to prosecution under this section that the actor:
(1) was not more than three years older than the victim and of the opposite sex;
(2) did not use duress, force, or a threat against the victim at the time of the offense; and
(3) at the time of the offense:
(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.
^4. Texas Penal Code 21.11(b)(2)-(b)(3) – (see above)
^5. Texas Penal Code 21.11(b-1) –
(b-1) It is an affirmative defense to prosecution under this section that the actor was the spouse of the child at the time of the offense.
^7. Texas Code of Criminal Procedure 12.01(1)(E)
^8. Texas Code of Criminal Procedure §62.101(a)(1), referring to a “sexually violent offense,” which is defined in § 62.001(6)(A) to include only the (a)(1)Indecency With a Child offense.
^9. Texas Code of Criminal Procedure §62.101(c)(2)
^10. Texas Code of Criminal Procedure §62.101(c)(2)
