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The Texas Sexual Assault Law

The Sexual Assault crime in Texas covers non-consensual sexual contact between any two people and certain consensual contact between adults and children. In Texas, if any adult accuses you of causing sexual penetration or contact between genitals, you can be charged with Sexual Assault. You can also be charged with Sexual Assault if someone accuses you of causing the penetration of a child’s sexual organs in any way. This is known “Statutory Rape” because an otherwise consensual act is turned into a “rape” charge simply because one of the parties is under the age of consent in the statute.

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.

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 invloving 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.

(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

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 Texs Child Sex Assault law 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.

What is the law on consent in Texas?

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;

(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.

What are the defenses to a sexual assault charge?

There is one specific defense outlined in the Sex Assault statute as well as two affirmative defenses. Section 21.011(d) provides the defense against 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.1 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.2

What is the penalty for Sexual Assault conviction in Texas?

Sexual Assault conviction under Texas law is automatically at least a second degree felony, but it can be enhanced to a first degree felony.3 What is the difference between a first and second degree felony in Texas?
The minimum punishment, therefore, is five years in prison. 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.

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.4


Legal References:

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

2 Texas 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.

3 Texas 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.

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

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