flags in background with sexual assault text overlay
flags in background with sexual assault text overlay

Texas Sexual Assault Law

The Sexual Assault offense is the the law in Texas concerning “Rape.” However, the Sexual Assault Texas Penal Code covers both non-consensual sexual contact between any two people (commonly referred to as “Rape”) and certain consensual contact between adults and children (commonly referred to as “Statutory Rape”). The same Sexual Assault law applies whether the conduct involves two people in a relationship or two strangers.

Update: The 86th Texas Legislature made several changes to the Sexual Assault law, effective September 1, 2019. Learn more about these changes below.

Have you been charged with Sexual Assault in Texas? Call criminal defense lawyer Paul Saputo at (888) 239-9305 to discuss legal representation.

Sexual Assault is certainly not the only Texas law dealing with illegal sexual conduct. Under the Texas Penal Code, the Sexual Assault offense is a separate offense from Aggravated Sexual Assault, which requires the state’s attorneys to prove certain additional factors and carries a more substantial penalty. The 85th Texas Legislature created a new offense called Sexual Coercion, effective as of September 2017. The 86th Texas Legislature created another related offense called Indecent Assault, effective as of September 2019.

In addition, there are many Texas offenses that prohibit various kinds of sexual conduct between adults and minors. Not every type of sexual conduct involving children is covered in the Sexual Assault law. Indecency with a Child covers all sexual contact between minors (under 17) and adults. Another law called Sexual Performance by a Child prohibits getting a child (under 18) to participate in a sexual performance. Learn about other sex crimes in Texas

What is the current Texas law about Sexual Assault?

The Texas crime of Sexual Assault is defined in Texas Penal Code Section 22.011(a). Subsection (a)(1) of the Sexual Assault Law deals with sexual assault of adults, where the primary issue is “consent.” The next subsection, subsection (a)(2), deals with Child Sex Assault. The current Texas Sexual Assault law is as follows:1

(a) A person commits an offense if:

(1) the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

[This next subsection, subsection (a)(2), of the Texas Sexual Assault law deals with what criminal defense attorneys call “Child Sexual Assault.”]

(2) regardless of whether the person knows the age of the child at the time of the offense, the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of a child by any means;

(B) causes the penetration of the mouth of a child by the sexual organ of the actor;

(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.

What is Sexual Assault of a Child?

If you accuse a person of having sex with anyone under seventeen years of age, they can be charged with Sexual Assault of a Child. Child Sexual Assault is still categorized under the law of Sexual Assault, but it refers specifically to a violation of subsection (a)(2) of the Texas Sexual Assault law (see the law described above).

The Child Sexual Assault offense does not list “without consent” as an element of the crime, so the state does not have to prove that the sexual encounter was nonconsensual. You can, therefore, be convicted of Child Sexual Assault regardless of whether the person consented. This is why it is called “Statutory Rape” – the statute defines it as “rape” even if it both parties agree that it was consensual.

Sexual Assault of a Child covers various types of sexual activity, including penetration and simple contact, between a person and a child. The person accused can be a child, too. However, the child accuser must be under seventeen years old at the time of the offense for the crime to be considered Sexual Assault of a Child.2

Sexual Assault of a Child does require the state to prove that the accused person engaged in the sexual activity “knowingly or intentionally.”3 So if the act was unintentional, the state would have to prove that the act was not somehow an accident.

Only certain types of sexual activity covered by the statute. See the text of the statute above to see what types of contact and which types of penetration are covered by the law.

How old does someone have to be to consent to sexual contact under Texas Sexual Assault Law?

In Texas, the age of consent is, generally speaking, seventeen years old for purposes of the Sexual Assault law.4 However, the age may sometimes be lower when the two parties are close in age – the close-in-age exception to the Sexual Assault age of consent that allows a person to have sex with someone under seventeen as long as the older person is not more than three years older than the minor,5 but this exception does not apply to people who have to register as sex offenders.6 Also, note that the age of consent is eighteen years old under for purposes of the Sexual Performance by a Child law.

What is the law on consent in Texas?

Consent is by far the most important aspect of any Sexual Assault case involving adults. It is the one factor that distinguishes legal sexual activity among adults from the Texas offense of Sexual Assault. If the sexual activity is done with consent, it’s legal – if it is done without one party’s consent, it’s illegal.

Generally speaking, consent means an agreement to engage in an activity. There are eleven twelve (the twelfth situation is effective starting on September 1, 20197) situations in which Texas law says consent is lacking for the purposes of the Sexual Assault law:8

(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:

(1) the actor compels the other person to submit or participate by the use of physical force or violence [effective September 1, 2017, H.B. 1808 amends this language to look like this: (1) the actor compels the other person to submit or participate by the use of physical force, violence, or coercion];

(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;

(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;

(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;

(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;

(6) the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;

(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;

(8) the actor is a public servant who coerces the other person to submit or participate;

(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;

(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser;

(11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code; or

(12) the actor is a health care services provider who, in the course of performing an assisted reproduction procedure on the other person, uses human reproductive material from a donor knowing that the other person has not expressly consented to the use of material from that donor. [this subsection (12) refers to what is being called Assisted Reproduction Sexual Assault]

Texas appellate courts regularly examine cases that hinge on legal issues related to consent. In Orgain v. State,9 the Second District Court of Appeals outlined the necessary requirements for a consent defense. In that case, the defendant believed he had received consent from his partner. However, she alleged that she had not given consent. The defendant was convicted and appealed his conviction, arguing that the evidence was insufficient to prove that he knew that his partner did not consent.

On appeal, the court held that the applicable law is that a sexual assault is without the consent of the other person if the actor compels the other person to submit or participate by the use of physical force or violence. The court held that sexual assault is defined by the attacker’s compulsion, not by the victim’s resistance.

The takeaway from this case is that courts must consider the defendant’s use of force, not necessarily what the victim did to resist the defendant’s actions.

What is the affirmative consent debate?

One of the major ongoing debates in the sexual assault law field is with respect to the idea of affirmative consent. Some people argue that the current system allows “passivity” (due to sleep, incapacitation, or unconsciousness) to be sufficient in establishing consent because the victim did not assert nonconsent.

The movement to establish affirmative consent as the basis of consent laws has not been successful in Texas to date. There was a bill filed in the 85th Legislature to establish affirmative consent, but it was ultimately unsuccessful. However, the affirmative consent movement won in 2015 in California, becoming the first state to adopt a stringent affirmative consent law. Since then, many other states have followed the trend.

California defines affirmative consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity.”10 The Texas Tech Law Review explained:

The policy explicitly states that each person is responsible to ensure that he or she has affirmative consent to engage in a sexual act. California provides even more guidance by adding that lack of protest, lack of resistance, or silence does not constitute affirmative consent. Moreover, it requires that the affirmative consent be ongoing throughout the sexual encounter, the affirmative consent can be revoked at any time, and a dating relationship or past sexual relationship cannot “by itself be assumed to be an indicator of consent.11

New York added to California’s definition stating the affirmative consent “can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.12

Opponents to these reforms argue that affirmative consent will not eliminate sexual assault, and there are too many ambiguities in sexual situations. For example, it can be unclear when a person gives consent when under the influence of alcohol. If someone affirmatively consents while intoxicated, does this count as consent? What if they consent but simply forget about it? If someone who is not acting intoxicated gives consent, but it turns out that the person in fact intoxicated, does that change anything?

What is statutory rape in Texas?

There is no offense in Texas law called “Statutory Rape,” but when a person has consensual sex with someone under a certain age, they can be charged with Texas offenses including Sexual Assault, Sexual Performance by a Child and Indecency with a Child.

Indecency with a Child is more closely related to what is commonly referred to as child molestation because it does not require penetration or contact between sexual organs. Therefore, groping of a female child’s breasts or a male child’s buttocks would be covered under Indecency with a Child, not Sexual Assault of a Child. Learn more about Indecency with a Child here

Sexual Performance by a Child is a more unusual law. It covers the activity implied by the name – performances of a sexual nature – but also all other sexual contact as well. It is, therefore, duplicative of both Sexual Assault and Indecency with a Child, and this can lead to some odd results, especially considering the age of consent for Sexual Performance by a Child is different from that of Sexual Assault. Learn more about Sexual Performance by a Child here

All of these statutory rape laws are strict liability crimes, meaning that the intention of the parties is not considered. Consequently, mistake of age is usually not allowed as a defense.

This can lead to some absurd outcomes, and the courts have done little to remedy this problem. Some younger people appear to be much older, so how is a person supposed to ascertain someone’s age? Are you supposed to demand an ID after your first date? What if they produce a fake ID?

To make matters worse, the courts have held that the sexual assault statute does not contain a provision allowing for a mistake-of-fact defense.13 The burden is on you (whether you are a child or an adult) to discover your sexual partner’s true age, and you assume the risk of prosecution if it turns out that your sexual partner is under the applicable legal age of consent, regardless of whether they lied or provided ample proof of their age that turned out to be fake.

What is the difference between sexual assault and rape?

Sexual Assault is the Texas law that is closest to the meaning of “rape.” In Texas, there is no law defining the word “rape” or an offense called rape. Under Texas law, if you are accused of rape, you would most likely be charged with Sexual Assault or Aggravated Sexual Assault. The Sexual Assault offense does not require intercourse or penetration, but instead can include only sexual contact.

What is the difference between Sexual Assault and Aggravated Sexual Assault?

Aggravated Sexual Assault requires the state to prove certain “aggravating” factors in addition to the underlying sexual assault. For example, Aggravated Sexual Assault occurs under violent circumstances, including when a weapon was used in the commission of the offense. Unsurprisingly, Aggravated Sexual Assault carries a more substantial penalty than Sexual Assault. Learn more about the Aggravated Sexual Assault law here

What is the statute of limitations for Sexual Assault in Texas?

There is no “statute of limitations” for Child Sexual Assault (technically, the way the law works in Texas, we say there is no time limitation).14 This means that can you be arrested and charged at any time for any type of Child Sexual Assault after anyone accuses you, no matter how long ago they say it happened, even if it was 50 years ago or more. The accuser gets all of the leeway in making the accusation.

There is also no limitation period for Sexual Assault of an adult under certain circumstances. In 2019, the Texas legislature removed the limitations period for Sexual Assault cases where biological matter has been collected but not yet subjected to testing.15 So, now you can be accused of Sexual Assault (of an adult) without any limitation on how long ago the accuser says it happened (1) if the state alleges that DNA evidence was collected during the investigation but no suspect is found with matching DNA or if the DNA has not yet been subjected to DNA testing or (2) if the state alleges that there is probable cause to believe that you committed the same or similar offense against five or more victims.16

Also in 2019, the legislature set a new limitations period of “two years from the date the offense was discovered” for Sexual Assault punishable as a state jail felony under Section 22.011(f)(2), Penal Code” (which is a new category of Sexual Assault created in the same legislative session).17

All other types of Sexual Assault must be prosecuted within ten years of the date the offense was committed.18 So, other than the specific exceptions described above, the accuser must choose an offense date within the last ten years in order for the state to prosecute you.

Where can Sexual Assault be prosecuted?

The Texas Code of Criminal Procedure says, “Sexual Assault may be prosecuted in the county in which it is committed, in the county in which the victim is abducted, or in any county through or into which the victim is transported in the course of the abduction and sexual assault.”19

For example, if a victim was kidnapped in Dallas County, taken in a car from Dallas County to Collin County, and sexually assaulted in Denton County, the defendant could be prosecuted in Dallas County (where the victim was abducted), in Collin County (a county that the victim was transported through), or in Denton County (the county the sexual assault occurred in).

The law also says the State has the burden of proving venue by a preponderance of the evidence (the lowest burden in criminal law).20

What are the defenses to a sexual assault charge?

There are two affirmative defenses available to a Sexual Assault charge. An “affirmative defense” requires the defendant to prove the facts related to the affirmative defense by a preponderance of the evidence – this swaps the normal burden from the state to the defense. The state still has to prove each element of the offense beyond a reasonable doubt, but if the defendant is able to convince a jury that the facts supporting an affirmative defense are true, then a jury should find the defendant Not Guilty and acquit the defendant, meaning that the person charged with the crime will not have to go to prison, jail or be placed on probation.

The affirmative defenses for Sexual Assault are applicable only to the Child Sexual Assault subsection (a)(2) charge. The first affirmative defense is that you are are married to the child.21 You will not be convicted if, for example, you can prove by a preponderance of the evidence that a person you had sex with was your spouse, even if the person was underage.

The second affirmative defense is (under current law): (1) the age difference is three years or less, (2) you are not already a sex offender, (3) the accuser-child was at least 14 years old, and (4) the parties were not prohibited from being married (under the Bigamy law) or prohibited from engaging in sexual contact (under the law against Incest).22 The final element of this affirmative defense regarding Incest was added by the legislature in 2019,23 and is effective as of September 2019.24 So that final requirement should not apply to earlier offenses.

So if an eighteen-year-old has a sexual encounter with a fifteen-year-old, the eighteen year old should not be convicted of Child Sexual Assault because there was not more than a three year age gap between the older and younger person, assuming the eighteen-year-old was not a registered sex offender, related to the younger person or married to someone else.

There are no available defenses when the child is under fourteen, regardless of the child’s willingness to engage in the sexual activity because of the law’s position that a fourteen-year-old (or younger) person is legally incapable of consenting to sex.

There is one defense to prosecution of Child Sex Assault. What this means is that if there is a defense to prosecution issue, the court must instruct the jury that even just a reasonable doubt on the issue requires that the defendant be acquitted. Unless the prosecution is able to convince a jury that the facts supporting the defense are not true beyond a reasonable doubt, then a jury should find the defendant Not Guilty and acquit the defendant, meaning that the person charged with the crime will not have to go to prison, jail or be placed on probation.

The defense to prosecution of Child Sex Assault is “that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.”25

What is the penalty for Sexual Assault conviction in Texas?

Sexual Assault is by default a second-degree felony.26 This default punishment may be enhanced to a first-degree felony if the victim was a person whom the defendant was prohibited from marrying or related to the defendant.27 Also, it is only a state jail felony if it is a Subsection (b)(12) (Sexual Assault by lack of consent for Assisted Reproduction) case.28 Learn more about the Range of Punishments for each grade of felony

Sex Assault is a reportable offense under Chapter 62,29 so sex offender registration requirements will apply. You may not be eligible for an order of non-disclosure if you receive deferred adjudication probation, even if you successfully complete the program and the charge is eventually dismissed.30 There are many other potentially negative collateral consequences.

For starters, a Sexual Assault conviction will carry with it all of the consequences of any other felony conviction. If you are convicted of a felony, you will be labeled as a convicted felon for the remainder of your natural life. You will lose certain civil rights, such as the right to vote31 and the rights to possess ammunition or firearms under federal32 and Texas state law.33 The felony conviction also makes it difficult to gain and maintain employment and may result in an individual’s loss of ability to be licensed in certain professions. Convicted felons also lose their ability to join and served in the country’s armed forces.

A conviction for any felony, but especially one for Sexual Assault, will very likely affect the outcome of a divorce or child custody case. In these situations, the one convicted may be awarded less money in the divorce if it is determined he or she was the reason for the divorce and given less to no time with his or her children of the marriage.

Perhaps the most widely talked about consequence is the requirement to register as a sex offender. The Texas Sex Offender Registration Program requires adults and juveniles with “reportable convictions” to register with the local police department in the city or county in which they reside.34 This is a significant consequence because it will affect not only your ability to gain and maintain employment, but also it limits the places where you can live and areas of town you are permitted to go (such as areas near children – i.e. schools, parks, etc.) for any purpose.

Can I get probation instead of prison time?

Whether you can get probation after being convicted of Sexual Assault depends on who assesses punishment, what the length of confinement is that would be suspended what your prior criminal history is, and the age of the victim.

Under the Texas Code of Criminal Procedure, a jury may generally recommend that a sentence be probated, but there are a list of limitations to this.35 If (1) you are given a sentence of more than 10 years36; (2) you have been previously been convicted of a felony37; or (3) the alleged victim in your case was not under fourteen years old.38

However, a judge may not sentence you to probation after a conviction because Sexual Assault is one of so-called “3g offenses,” which do not allow for judge-ordered community supervision.39

What are typical conditions of probation?

Conditions of probation are often agreed on by the state and your defense attorney. This situation is ideal because it allows your attorney to have some say on the type of conditions that will be imposed upon you while you are on probation. In a case where the judge or jury places you on probation, neither your attorney nor the state will get to choose your conditions.

One thing that is true of probation across the board is that it is costly. Defendants must pay a supervision fee every month, which varies depending on the county. The defendant will also be required to pay a fine, court costs, and attorney’s fees. In addition, there are often costs associated with doing community service and taking the required classes. Typically, there will be a stay away order issued against you. A stay-away order is an instruction from a judge to a defendant telling him or her not to go near or have any contact with an alleged victim.

For almost all types of probation in Texas, the defendant is required to complete a certain number of hours of community service. These hours must be done in person at a nonprofit, nonreligious organization. Typically, this community service involves picking up trash, cleaning graffiti, and other activities aimed to make the community cleaner and look nicer.

Another common condition of probation are classes. These classes are usually targeted to deal with the specific offense that the defendant was charged with. For example, in a Sexual Assault case, the defendant would likely be required to take a a class on how sexual assault affects victims and the community at large or a class on making better life choices and getting back on the right track.

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 simple exposure-related conduct. Learn more about Indecency with a Child 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.

How old is a child under the Sexual Assault law?

For purposes of the Texas Sexual Assault law, “child” is defined as a person younger than 17 years of age.40

Changes to the Sexual Assault law Effective in 2019

The 86th Texas Legislature made several changes to the Sexual Assault law in Texas. HB 8 removed the limitations period for sex assault cases where biological matter has been collected but not yet subjected to testing. Learn more about the limitations period for Sexual Assault

HB 667 made changes to both the penalty scheme for Sexual Assault and provided a limitation on an affirmative defense. Both of those changes applied only in cases of incest (more specifically, violations of the Prohibited Sexual Contact law). Learn more about the affirmative defenses

SB 1259 created another category of Sexual Assault that applies when a health care professional uses human reproductive material from a donor knowing that the other person has not expressly consented to the use of material from that donor. Learn more about this new category


Legal References:

1 Texas Penal Code §22.011(a), as amended by H.B. 1808, 85th Legislature, Section 6, effective September 1, 2017. The version of the law prior to this update was as follows:

(a) A person commits an offense if the person:

(1) intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

(2) intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of a child by any means;

(B) causes the penetration of the mouth of a child by the sexual organ of the actor;

(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.

2 Texas Penal Code §22.011(c)(1)

3 Texas Penal Code §22.011(a)(2)

4 Texas Penal Code §22.011(c)(1)

5 Texas Penal Code §22.011(e)(2)(A)

6 Texas Penal Code §22.011(e)(2)(A)(i)&(ii)

7 S.B. 1259, 86th Texas Legislature, Sections 2, 4 & 5

8 Texas Penal Code §22.011(b)

9 Orgain v. State, No. 02-15-00174-CR, 2016 Tex. App. LEXIS 1712 (App.—Fort Worth Feb. 18, 2016)

10 CAL. EDUC. CODE § 67386(a)(1) (West 2014)

11 Affirmatively Replacing Rape Culture with Consent Culture, 49 Tex. Tech L. Rev., 1, 8 (p. 6)

12 Affirmatively Replacing Rape Culture with Consent Culture, 49 Tex. Tech L. Rev., 1, 8 (p. 7)

13 Fleming v. State, 455 S.W.3d 577 (Tex. Crim. App. 2014) (“Because Section 22.021 requires no culpability as to the age of the victim, there is nothing for the defendant’s mistaken belief to negate, and his mistake cannot be a defense to prosecution”). The court held that there is not a fundamental right to a mens rea component or a mistake-of-age defense in a statutory rape case. The court further held that strict liability regarding the age of the minor furthers the legitimate government interest in protecting children from sexual abuse by placing the risk of mistake on the actor.

14 Texas Code of Criminal Procedure Art. 12.01(1)(B)

15 H.B. 8, 86th Legislature, Section 2

16 Texas Code of Criminal Procedure Art. 12.01(1)(C)

17 S.B. 1259, 86th Legislature, Section 1

18 Texas Code of Criminal Procedure Art. 12.01(2)(E)

19 Texas Code of Criminal Procedure Art. 13.15(1)(C)

20 Texas Code of Criminal Procedure Art. 13.17

21 Texas Penal Code §22.011(e)(1)

22 Texas Penal Code §22.011(e)(2)

23 H.B. 667, 86th Texas Legislature, Section 2

24 H.B. 667, 86th Texas Legislature, Sections 3 & 4

25 Texas Penal Code §22.011(d)

26 Texas Penal Code §22.011(f)

27 Texas Penal Code §22.011(f)(1)

28 Texas Penal Code §22.011(f)(2)

29 Texas Code of Criminal Procedure Art. 62.001(5)(A)

30 Texas Government Code §411.074(b)(1)(A)

31 Texas Election Code §11.002(4)

32 18 U.S.C. §922(g)

33 Texas Penal Code §46.04

34 Texas Code of Criminal Procedure Art. 62.051(a)

35 Texas Code of Criminal Procedure Art. 42A.055

36 Texas Code of Criminal Procedure Art. 42A.056(1)

37 Texas Code of Criminal Procedure Art. 42A.055(b)

38 Texas Code of Criminal Procedure Art. 42A.056(4)

39 Texas Code of Criminal Procedure Art. 42A.054(a)(7)

40 Texas Penal Code §21.011(c)(1)

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