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Sexual Assault Law Image

Sexual Assault

The Sexual Assault crime in Texas covers non-consensual sexual contact between any two people and certain consensual contact between adults and children. Sexual Assault covers all sexual activity, whether between two people in a relationship or two strangers.

Sexual Assault is the Texas law concerning “Rape.” But it is certainly not the only Texas law dealing with illegal sexual conduct. Under Texas law, 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. There is also a new offense called Sexual Coercion, effective September 2017.

Have you been charged with Sexual Assault in Texas? Call criminal defense lawyer Paul Saputo at (888) 239-9305 or learn more about our Sex Assault Practice.

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, for instance, covers all sexual contact between minors (under 17) and adults, not just contact involving genitals. 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 Sexual Assault law in Texas?

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 law was updated in 2017 with the passage of H.B. 1808 in the 85th Texas Legislature.1 Effective through September 1, 2017, Texas Penal Code Section 22.011(a) is 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

Effective on and after September 1, 2017, Texas Penal Code Section 22.011(a) is as follows (see footnote 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

The next subsection of the Texas Sexual Assault law deals with what criminal attorneys call, in shorthand, Child Sexual Assault. Child Sexual Assault is still categorized under the law as Sexual Assault, but Child Sexual Assault is a violation, specifically, of subsection (a)(2) of the Texas Sexual Assault law in Texas Penal Code Section 22.011. You can be convicted of Child Sex Assault regardless of whether the person consented. This is why it is called “Statutory Rape.” The Texas Child Sex Assault law, effective until September 2017, is as follows:

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

(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.

Effective on and after September 1, 2017, the Texas Child Sex Assault law is as follows:

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

(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. 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

Child Sexual Assault is still categorized under the law as Sexual Assault, but Child Sexual Assault is a violation of subsection (a)(2) of the Texas Sexual Assault law in Texas Penal Code Section 22.011 (described above).

The Child Sexual Assault offense in PC 22.011(a)(2) 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 Sex Assault whether the child consented or did not consent.

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.

We will not analyze or explain the types of sexual activity covered by the statute because we feel that the statute does a good job of going into enough detail. Look at the text of the statute above to see what types of contact and which types of penetration qualify.

How old does someone have to be to consent to sexual contact under the Sexual Assault law?

In Texas, the age of consent is seventeen years old for purposes of the Sexual Assault law4, but there are exceptions, and the age of consent is eighteen years old under the Sexual Performance by a Child law5. There is a 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.6 This exception does not apply to people who have to register as sex offenders.7

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 Sexual Assault.
Generally speaking, consent means an agreement to engage in an activity. There are eleven situations in which Texas law says consent is lacking for the purposes of the Sexual Assault law. Section 21.011(b) of the Texas Penal Code defines them as follows:

(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; or

(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.

Texas appellate courts regularly examine cases that hinge on legal issues related to consent. In Orgain v. State8, the Second District Court of Appeals outlined the necessary requirements for a consent defense. Here, the defendant believed he had received consent from his partner. However, she didn’t think she had given consent. In this case, Appellant Randall James Orgain appealed his conviction for Sexual Assault, for which he was sentenced to five years in prison. In a single issue, Appellant argued that the evidence was insufficient to prove that he knew that the complainant did not consent.

The facts of this case are as follows: Appellant and Jane were not dating, but were just good friends. When Appellant showed up unexpectedly in Jane’s driveway on April 27, 2013, he said that he was in town for his father’s funeral, and Jane ultimately allowed Appellant to come in and spend the night at her house. Jane alleged that while he was there, Appellant put on a mask and sexually assaulted Jane, despite her protests and efforts to resist him. After Appellant left, Jane called a friend and told him what had happened. Jane drove herself to the hospital where a sexual assault nurse examined her.

The nurse testified at trial that the victim said she was on her bed when someone came in and told her there was a robbery. He ran into her room and told her to lay down on the bed and look out the window. The victim said she laid down and tried to see out, but could not. Then, when she turned over, she saw that he had a mask on. She asked what he was doing, and he started kissing her all over. She said she tried to push him off of her, but he pulled her shirt up and bit her nipples. The victim said at this point she was yelling for him to stop, but he refused. The victim also said she kept trying to squeeze his head with her legs to get him off, but he would not stop and then he penetrated her with his penis in her vagina.

She then asked him if she could be done, and he had responded to her, “when I’m done with you, bitch.” And she showed the nurse she scratches on her chest from him clawing at her clothes trying to get them off.

The defendant was convicted and on appeal he argued that the evidence was insufficient to prove that he knew that Jane had not consented. 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. When ruling on the case, the court considered the victim’s testimony with the appellant’s argument that although “there is some evidence in the record indicating that Jane did not consent to the sexual encounter in question but argues that he believed at the time of the encounter that Jane had consented and did not realize that Jane had objected to his advances until after the encounter had concluded.” Appellant contended that he did not know Jane’s resistance “wasn’t simply her way of participating in the role-play scenario, at least until after the event was over,” but the appellate court rejected that and affirmed the conviction.

The takeaway from this case is that court will consider the attacker’s force in these cases, not what the victim did to resist the defendant’s actions. Here, the court gave more weight to the defendant’s acts in forcing his victim to have sex with him and paid no mind to the fact that the defendant said she did not say no, fight back, etc.

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”:9

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.

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.”10

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? 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, as 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. Learn more about Indecency with a Child here

Sexual Performance by a Child is a more unusual statutory rape-related law. It covers 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 eighteen years old. 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.

A recent case in the Texas Court of Criminal Appeals addressed a challenge to the constitutionality of the state’s strict liability statutory rape Sexual Assault law. In Fleming v. State11, the appellant, Mark Fleming, was charged with four counts of Aggravated Sexual Assault. He filed a motion to quash the indictment on the basis that the statute is unconstitutional for failing to require the State to prove that he had a culpable mental state related to the victim’s age and for failing to recognize an affirmative defense based on the defendant’s reasonable belief that the victim was at least seventeen, but the trial court denied the motion. Appellant then filed a petition for discretionary review, and the Court of Criminal Appeals granted cert to decide “whether Penal Code Section 22.021 is unconstitutional under the Due Process Clause of the Fourteenth Amendment and the Due Course of Law provision of the Texas Constitution because it fails to require the State to prove that the defendant had a culpable mental state regarding the alleged victim’s age, and fails to recognize an affirmative defense based on the defendant’s reasonable belief that the alleged victim was 17 years of age or older.”

The facts of this case are as follows. Appellant said he received a text message from a girl, K.M., who said that she had obtained his phone number from her friend in April of 2007. When Appellant asked her age, she said that she was 22 years old. However, K.M. was only thirteen years old. The two corresponded by text message and talked on the phone for a couple of weeks and then arranged to meet at the mall. Both Appellant and K.M. testified that on their first date they went to a movie and drag races, after which Appellant drove K.M. home.

Appellant testified in trial that K.M. told him that her mother and step-father lived with her because they had lost their home. After their second date, Appellant asked K.M. if she wanted to spend the night with him at a hotel where he had been staying. Appellant testified that K.M. said she wanted to go to his hotel, but that she was not ready for them to have sex or anything leading to sex at that time. Appellant said that he agreed and that they went to sleep once they got to the hotel. Appellant testified that when he woke up early the next morning, K.M. was “messing with him” in such a way that indicated to him that she wanted to have sex. He asked her if she was sure she wanted to have sex, and she said “yes.” Appellant and K.M. continued dating and having sex from April to May of 2007.

Later that year, K.M.’s mom found a love letter that Appellant had written to K.M. Appellant, who was 25 years old at the time, wrote in the letter, “I know you are four years or five years younger than I am, but I love you.” When her mom confronted her about the letter, K.M. initially denied the relationship. Eventually, K.M. admitted that she did have sex with Appellant, and her mom called the police to report the relationship.

Appellant was cooperative during questioning by police officers and told the officers about the relationship. He told the officer that he did not know that K.M. was under age when he dated her and denied that he should have known based on the circumstances. At trial, Appellant testified that he believed that K.M. was twenty-two years of age because both K.M. and her friend had told him that she was twenty-two years old, and because K.M. had told him that she was a student at the University of North Texas majoring in criminal justice. He also testified that he had seen on her MySpace page, which was entered into evidence by the defense, that she was twenty years old. K.M.’s MySpace page also said she was a student at North Texas University. The MySpace page also had photos of K.M. that were taken around the time she was dating Appellant. K.M. denied having told Appellant that she was twenty-two years old and testified that someone else must have changed her MySpace page. She said she did not know if Appellant knew that she was under age when they dated and said she did not say one way or the other. The State presented evidence that Appellant had previously dated a friend of K.M.’s mom, who sometimes babysat K.M. when she was younger to prove he knew how old she was or at least should have known that she was not twenty-two. The State said that K.M. would have been eleven years old when Appellant first met her at her mom’s house. K.M. said that Appellant had been to her mother’s house in the past, but she did not know if he remembered meeting her then. Appellant agreed to a ten-year probated sentence and retained the right to appeal the trial court’s denial of his motion to quash.

Appellant challenged the statute based on a lack of a mens rea as to the victim’s age. On appeal, he raised an as-applied challenge to the court’s failure to allow him to put on a mistake-of-fact defense. More specifically, he argued that he had an objectively and subjectively reasonable belief that the alleged victim in this case was over the age of seventeen because of the statements both she and her friend made to him and the information on her MySpace profile. Appellant argued that Statutory Rape does not require a mens rea element, which is what makes a crime illegal. Thus, it would be unconstitutional to enforce the statute without the mens rea element that is essential in every felony charge. Meaning, Section 22.021 is unconstitutional as it is written.

Appellant also claimed that in Lawrence v. Texas, the United States Supreme Court extended the Due Process Clause’s protection of liberty to the intimate choices of unmarried persons. Appellant went on to cite X-Citement, stating that “when a statute is completely bereft of a scienter requirement as to the age of the victim, and the age of the victim is the crucial element separating legal innocence from wrongful conduct, the statute raises serious constitutional doubts.” Appellant further argued that, because the physical act identified in Section 22.021(a)(1)(B)(iii) is entitled to constitutional protection, the complete absence of a mens rea requirement as to the age of the victim renders the statute constitutionally void. Appellant argued that an ignorance-of-fact defense should be a valid defense when people, through no fault of their own, have been misled. He further argued that it is unfair for him to be considered a “sexual predator” when no evidence exists of any intent to do anything wrong and no evidence exists to indicate that he is a threat to the community.

The State, on the other hand, argued that the court of appeals properly concluded that Appellant’s fundamental rights were not implicated and that Section 22.021 serves a legitimate state purpose. First, the reasoning from X-Citement Video does not apply here because, unlike a defendant who does not know the age of a person depicted in a video, Appellant spent a significant amount of time with the victim and had plenty of time to ascertain her true age. Furthermore, the State noted that, although some states allow a mistake-of-age defense, the majority rule is that excluding knowledge of the victim’s age as an element of the statutory rape offense does not violate Due Process. Lastly, the State argues that “the legislature has an interest in protecting the safety of children and that only the legislature should make changes to a statute that serves to protect children from sexual abuse.”

The court concluded in its opinion that the Texas legislature clearly intended for age to be an aggravating element in certain offenses and does not intend for the State to be required to prove that the defendant knew the age of the victim. In conclusion, there is no mens rea as to age listed in the sexual assault statute and there is no fundamental right to a mens rea element regarding the age of the victim in this context. Therefore, because this statute serves the legitimate state objective of protecting children, the court said it will not read a mens rea element into the statute, and it does not believe that failure to require mens rea as to the victim’s age violates the federal or state constitution. The statutory prohibition of an adult having sex with a person who is under the age of consent serves to protect young people from being coerced by the power of an older, more mature person. Moreover, the fact that the statute does not require the State to prove mens rea as to the victim’s age places the burden on the adult to ascertain the age of a potential sexual partner and to avoid sexual encounters with those who are determined to be too young to consent to such encounters. If the adult chooses not to ascertain the age of a sexual partner, then the adult assumes the risk that he or she may be held liable for the conduct if it turns out that the sexual partner is under age.

Of course what the court failed to consider is how a person is supposed to ascertain someone’s age. Are you supposed to demand an ID after your first date? What if they produce a fake ID? It’s an idiotic opinion, but that’s what the highest court in Texas ruled.

In regards to the mistake-of-fact defense, the court held that the sexual assault statute does not contain a provision allowing for such a defense. “Under Penal Code Section 8.02(a), ‘It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense.’ 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.”

In conclusion, the court held that Section 22.021 does not offend notions of Due Process or Due Course of Law. The court reasoned that the strict-liability aspect of statutory-rape laws is widely known and is a recognized exception to the general requirement of mens rea in criminal statutes.” 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. Thus, as long as the statute is reasonably related to a legitimate state objective, it does not impinge on a substantive due-process right. 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 adult actor.

This case set the standard for statutory rape cases across Texas. The court made it clear that there is no mistake-of-age or mistake-of-fact defense available to the defendant in a statutory rape case. The court also made it clear that the burden is on an accused person to discover our sexual partner’s true age, and we assume the risk of prosecution if it turns out that our sexual partners are under the applicable legal age of consent, regardless of whether they lied or provided ample proof of their age that just 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 always include intercourse or penetration, and this crime can be charged even when only “sexual contact” has been made.

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

Aggravated Sexual Assault carries a more substantial penalty than Sexual Assault. As a result, Aggravated Sexual Assault requires the state to prove certain additional factors. For example, Aggravated Sexual Assault occurs under particularly violent circumstances most often with the use of a weapon creating force or fear. The Texas crime of Aggravated Sexual Assault is defined in Texas Penal Code Section 22.021(a). Subsection (a)(2) of this law states that a person commits an offense if the person satisfies the elements of normal sexual assault (mentioned in section “What is the sexual assault law in Texas”) and additional elements. Learn more about the Aggravated Sexual Assault law here

How long does the state have to file a case for sexual assault against me?

There is no statute of limitations for Child Sexual Assault.12 This means that can you be arrested and charged at any time for any type of Sexual Assault of a Child no matter when the accuser says 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 limit on the statute of limitations for Sexual Assault of an adult under certain circumstances. You can also be accused at any time for Sexual Assault (of an adult) (1) if the state alleges that DNA evidence was collected during the investigation but no suspect is found with matching DNA 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.13
All other types of Sexual Assault and Aggravated Sexual Assault must be prosecuted within ten years of the date the offense was committed. However, in all other cases where the defendant sexually assaults an adult victim, the statute of limitations is ten years; the same for most other high-level felonies. Other than these no-limitations period, 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.”14

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 evidence15, but this is a low burden. In one case,16 a teenager came forward and said that the defendant sexually assaulted her seventeen years ago when she was five or six years old. The victim could not remember where the assault occurred, but she did remember in was in the summer of 1993. Witnesses testified that she was in Fort Bend County during some portion of that summer. The court in this case held that “evidence is insufficient to establish venue if, considering all the evidence admitted at trial, no rational fact finder could have found that the charged offense occurred in the county alleged by a preponderance of the evidence.” In this case, although no one remembered exactly which county the assault occurred in, witness testimony was sufficient to lead the jury to rationally find by the preponderance of the evidence that sexual assaults occurred in Fort Bend County. Therefore, the defendant was properly convicted of sexual assault in Fort Bend County.

What are the defenses to a sexual assault charge?

Some offenses in Texas have what is called an affirmative defense. This type of defense requires the defendant to prove the facts related to the affirmative defense by a preponderance of the evidence. 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.

Some offenses in Texas have what is called an defense to prosecution. If the issue of the existence of a defense to prosecution is submitted to the jury, the court must charge that 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.

There is one defense to prosecution of Child Sex Assault, and two affirmative defenses to Child Sex Assault. Section 21.011(d) provides the defense to prosecution of a subsection (a)(2) Sexual Assault (Child Sex Assault) charge “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.”

The affirmative defenses are also applicable only to the Child Sexual Assault subsection (a)(2) charge. The first affirmative defense is that the people are married.17 The second affirmative defense is that (1) the age difference is three years or less, (2) the accused is not already a sex offender, (3) the victim was at least 14 years old, and (4) the parties were not prohibited from being married.18

You will not be convicted if, for example, you can prove by a preponderance of the evidence presented to a jury that a person you had sex with was your spouse, even if the person was underage.

A more common scenario occurs mainly among teenagers when one teenager (let’s say an eighteen-year-old) has a sexual encounter with a schoolmate (let’s say a fifteen-year-old). In this instance, the eighteen year old should not be successfully prosecuted for Child Sexual Assault because he was not more than three years older than the younger participant. However, if this teenager would have been nineteen years old who was previously registered as a sex offender or had a prior conviction for sexual assault, he would not have an affirmative defense to Sexual Assault of a Child and could be convicted.

Lastly, however, because a child under fourteen is legally incapable of consenting to sex, there are no available defenses when the child is under fourteen, irrespective of the child’s purported willingness to engage in the sexual activity. For example, in Pawson v. State, the underage victim testified that she had sex on multiple prior occasions and even consented to sex with the defendant. However, the Texas Court of Criminal Appeals held that consent is irrelevant when the victim is under fourteen years old and affirmed the defendant’s conviction. As of the date of the publishing of this article, this case has not been overruled or had its authority questioned.

What is the penalty for Sexual Assault conviction in Texas?

Sexual assault is a second-degree felony by default, but may be enhanced to a first-degree felony if the victim was a person whom the defendant was prohibited from marrying.19 The range of punishment is two to twenty years imprisonment and a fine not to exceed $10,000 for a second-degree felony.20 If the crime is enhanced to a first-degree felony, the punishment range is five to 99 years and a fine not to exceed $10,000.21

You may be subject to sex offender registration requirements, and 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. There are many other potentially negative collateral consequences. For instance, just to give you an example how broad the consequences may be, under Senate Bill 7, 85th Texas Legislature,22 your teacher’s retirement benefits may be suspended.

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 probated, but there are a list of limitations to this.23 If (1) you are given a sentence of more than 10 years24; (2) you have been previously been convicted of a felony25; or (3) the alleged victim in your case was not under fourteen years old26.

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 supervision27.

In Skinner v. State28, the Texas Court of Appeals in the Fifth District explained that if a defendant is found guilty, only a jury can sentence him or her to probation for a 3g offense. However, if the jury decides not to grant a request for probation, the defendant has no right to appeal the jury’s decision because no judge can grant probation for sexual assault.

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 extremely common condition of probation includes taking educational 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, and/or a class on making better life choices and getting back on the right track.

What are the other consequences of being convicted of sexual assault?

For starters, a Sexual Assault conviction will carry with it all of the consequences of any other felony conviction. After conviction, the person will be labeled as a convicted felon for the remainder of their natural life. The person will lose certain civil rights, such as the right to vote29 and the rights to possess ammunition or firearms under federal30 and Texas state law31. 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 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.

However, perhaps the most widely talked about 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,32 and Sexual Assault is on the list of “reportable convictions or adjudications.”33

This is a significant consequence because it will affect your ability not only to gain and maintain employment, but it will also limit 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.

In 2014, the Texas Court of Criminal Appeals decided Reynolds v. State34. This case outlines the criminal convictions required to register as a sex offender. Other cases decided which convictions would require registration, but this one, in my opinion, is one of the clearer cases. Now, anyone convicted after September 1, 1970, of a sex offense or similar crime must register or face prosecution. Even if you serve time in prison or state jail for Sexual Assault, you will be required to register as a sex offender as a condition of parole.

There is a method under the law to be exempted from the sex offender reporting requirements, however. Subchapter G of the Texas Code of Criminal Procedure outlines an exemption possibility for some young offenders.

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. Indecency with a Child covers all sexual contact between an adult and a minor under 17 as well as simple exposure-related conduct.

In many cases involving juveniles, 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. Othwerise, 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.35


Legal References:

1Texas Penal Code Section 21.011(a), as amended by H.B. 1808, 85th Texas Legislature, Section 6, effective September 1, 2017

2Texas Penal Code Section 21.011(c)(1)

3Texas Penal Code Section 21.011(a)(2)

4Texas Penal Code Section 21.011(c)(1)

5Texas Penal Code Section 43.25(a)(1)

6Texas Penal Code Section 21.011(e)(2)(A)

7Texas Penal Code Section 21.011(e)(2)(A)(i)

8Orgain v. State, No. 02-15-00174-CR, 2016 Tex. App. LEXIS 1712 (App.—Fort Worth Feb. 18, 2016)

9Affirmatively Replacing Rape Culture with Consent Culture, 49 Tex. Tech L. Rev., 1, 8 (p. 6)

10Affirmatively Replacing Rape Culture with Consent Culture, 49 Tex. Tech L. Rev., 1, 8 (p. 7)

11Fleming v. State, 455 S.W.3d 577 (Tex. Crim. App. 2014)

12Texas Code of Criminal Procedure Article 12.01(1)(B)

13Texas Code of Criminal Procedure Article 12.01(1)(C)

14Texas Code of Criminal Procedure Article 13.15(1)(C)

15Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964)

16Anglin v. State, Nos. 01-09-00285-CR, 01-09-00286-CR, 01-09-00287-CR, 2010 Tex. App. LEXIS 9560 (App. Dec. 2, 2010).

17Texas Penal Code Section 21.011(e)(1)

18Texas Penal Code Section 21.011(e)(2) –

(e) It is an affirmative defense to prosecution under Subsection (a)(2):

(1) that the actor was the spouse of the child at the time of the offense; or

(2) that:

(A) the actor was not more than three years older than the victim and at the time of the offense:

(i) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or

(ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and

(B) the victim:

(i) was a child of 14 years of age or older; and

(ii) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

19Texas Penal Code Section 21.011(f) –

(f) An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

20Texas Penal Code 12.33

21Texas Penal Code 12.32

22Senate Bill 7, 85th Texas Legislature, Section 17

23Texas Code of Criminal Procedure Article 42A.055

24Texas Code of Criminal Procedure Article 42A.056(1)

25Texas Code of Criminal Procedure Article 42A.055(b)

26Texas Code of Criminal Procedure Article 42A.056(4)

27Texas Code of Criminal Procedure Article 42A.054(a)(7)

28Skinner v. State, 334 S.W.3d 12, 14 (Tex. App. 2008)

29Texas Election Code Section 11.002(4)

3018 U.S.C. 922(g)

31Texas Penal Code Section 46.04

32Texas Code of Criminal Procedure Article 62.051(a)

33Texas Code of Criminal Procedure Article 62.001(5)(A)

34Reynolds v. State, 423 S.W.3d 377 (Tex. Crim. App. 2014)

35Texas Penal Code Section 21.011(c)(1)

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