Indecency With a Child: Texas Penal Code §21.11

The Texas Indecency with a Child law makes it illegal to engage in sexual contact with a minor child or teenager, even if you are a minor yourself.

The Indecency with a Child offense covers “Statutory Rape,” but it also criminalizes a broader array of “Child Molestation.” The other “Statutory Rape” offense, called Sexual Assault of a Child, carries a higher penalty classification than Indecency with a Child and only applies to a narrower range of sexual activity. 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.

The Indecency with a Child law also covers many of the same activities as the Texas offense of Sexual Performance by a Child, but 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).

The Texas legislature codified this criminal offense in Texas Penal Code Section 21.11. The law was not amended in 2023. However, the law was most recently amended in 2017 when the legislature added explicit language that the offense would apply whether or not you knew that the person was underage.

The Penal Code classifies the Texas Indecency With a Child law under Title 5 “Offenses Against the Person,” Chapter 21 “Sexual Offenses.” Learn more about the Texas offense of Indecency With a Child below.

What is the current Texas law about Indecency With a Child?

Texas law currently 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.

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 is sometimes referred to as the Texas “Statutory Rape” law (even though that might more accurately apply to the Child Sexual Assault crime). This law sets the age of consent law in Texas at 17 years old. However, another law called Sexual Performance sets the age of consent at 18 years old. Learn more about the age of consent laws in Texas

Amendments effective in 2017

In 2017, the law was amended to specify that the crime would apply whether or not you knew that the person was underage.^[2] No changes were made to this law in 2019, 2021, or 2023.

Indecency With a Child Case Law

Indecency With a Child law evolves through court decisions by the Texas Courts of Appeal and the Court of Criminal Appeals.

The State of Texas v. Manuel Herrera

For example, in one Indecency With a Child case, the Fifth District Court of Appeals reviewed the records from the 366th Judicial District Court Collin County. Subsequently, the appellate court filed an opinion on June 30, 2023, in the case styled The State of Texas v. Manuel Herrera, in Cause No. 05-22-00015-CR.

The appellate court reported the background of the case as follows:

In Counts 3 and 5, the State charged appellant with committing the offense of indecency with a child by contact on or about September 20, 2006, and February 20, 2007, by causing M.R.’s hand to touch appellant’s genitals. Appellant pleaded not guilty, and his case proceeded to a jury trial.

To prove appellant committed indecency with a child by contact, as allegedin Count 3 of the indictment, the State was required show that on or about September 20, 2006, appellant caused M.R.’s hand to touch appellant’s genitals. Appellant’s specific argument as to this count, in addition to his general credibility challenge, was that M.R. gave very few details about the incident. The appellate court disagreed. You can learn more about this case and read the court’s opinion by Justice Smith here.

What affirmative defenses are available?

There are two affirmative defenses available. The first affirmative defense requires an age difference of less than three years between the participants engaged in the sexual contact, and they 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 you were married to the child.^[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 these offenses is the scope of the covered illegal behavior. 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 attorney to discuss the specifics of your case.

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.

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,^[6] while Indecency – Exposure convictions require only 10 year registration under Texas law.^[7] The 10-year period of registration beings after the date of release from prison, the probation ends or the case is dismissed.^[8]

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.”^[9]

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.^[10]

What is the difference between Child Sexual Assault and Indecency with a Child?

Indecency with a Child covers a much broader range of sexual conduct than the Texas Sexual Assault law does. Indecency with a Child covers all sexual contact between an adult and a minor under 17 as well as exposure conduct. Learn more about Sexual Assault here.

In many cases involving child accusers, a jury is asked to determine whether an adult’s finger penetrated or simply made contact with a child’s sexual organ. If the jury believes there was penetration, you would be convicted of Sexual Assault. Otherwise, it would be Indecency with a Child.

What is the statute of limitation for Indecency With a Child in Texas?

There is no limitations period for an Indecency with a Child charge.^[11] This means that the state of Texas could charge you with this offense any time after the offense is alleged to have been committed.

What is the penalty for a Texas Indecency With a Child offense?

Indecency with a Child is punished as a second degree felony if it is charged under subsection (a)(1) (Indecency with a Child – Sexual Contact) and as a third degree felony if it is charged under subsection (a)(2) (Indecency with a Child – Exposure).^[12]

Can you get probation for Indecency With a Child in Texas?

The Texas Code of Criminal Procedure prohibits judges from placing people convicted of this offense on probation.^[13] You can potentially still get deferred adjudication probation, however, unless you have a prior deferred adjudication for Indecency, Sexual Assault, or certain other sex crimes.^[14]

The Texas Code of Criminal Procedure also prohibits juries from recommending probation for people convicted of Indecency with a Child if the victim of the offense was younger than 14 years of age at the time the offense was committed.^[15]

Do I have to register as a sex offender in Texas if guilty of Indecency With a Child?

Any Texas Indecency With a Child conviction or adjudication, including deferred adjudication, requires registration as a sex offender.^[16] Learn more about how long you would have to register here.

What level of crime is Indecency With a Child in Texas?

The Penal Code classifies the punishment for Indecency With a Child by Contact as a second degree felony and Indecency With a Child by Exposure as a third degree felony.

Learn more about the penalty range for this offense in the section above.

Can a Texas Indecency With a Child offense be reduced?

An Indecency with a Child charge may be reduced to an Injury to a Child (Penal Code §22.04) offense or an Indecent Assault (Penal Code §22.012) offense.

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Legal References:

^1. Texas Penal Code §21.11. This law is current as of 2024.^2. Pursuant to HB 1808, 85th Texas Legislature, Section 3, effective on September 1, 2017^3. 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.

^6. 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.^7. Texas Code of Criminal Procedure §62.101(c)(2)^8. Texas Code of Criminal Procedure §62.101(c)(2)^9. Texas Code of Criminal Procedure §62.101(a)(4)^10. Texas Code of Criminal Procedure §62.101(b)^11. Texas Code of Criminal Procedure 12.01(1)(E)^12 Texas Penal Code 21.11(d)

^13. Art. 42A.054(a)(7), Texas Code of Criminal Procedure^14. Art. 42A.102(b)(2)(A), Texas Code of Criminal Procedure.^15. Art. 42A.056(4), Texas Code of Criminal Procedure^16. Code of Criminal Procedure, Article 62.001(5)(A)