Sexual Assault: Texas Penal Code §22.011

The Texas Sexual Assault law prohibits “nonconsensual” sexual acts among adults and certain “consensual” sexual acts involving people under 17. The law has been amended several times over the last few years.

This is the law in Texas concerning “Rape.” However, the statute is much broader than what most people think of as rape. In addition to Child Sex Assault, which does require the state to prove a lack of consent, the Texas legislature has re-defined the word “consent” (as the word is used in the English language) to include activities that are consensual, even between adults. The re-defining of what consent means has been expanded over the years, but certain consensual contact between adults and children (commonly referred to as “Statutory Rape”) has been prohibited for a longer time. The same Sexual Assault law applies whether the conduct involves two people in a relationship or two strangers.

However, Sexual Assault is certainly not the only Texas law dealing with illegal sexual conduct. The Penal Code defines an aggravated form of Sexual Assault. Aggravated Sexual Assault requires the state’s attorneys to prove certain additional factors and carries a more substantial penalty. In 2017, the Texas Legislature created a new offense called Sexual Coercion. And in 2019, the legislature created another offense called Indecent Assault.

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.

The Penal Code classifies the Texas Sexual Assault law under Title 5 “Offenses Against The Person,” Chapter 22 “Assaultive Offenses.” Learn more about the Texas offense of Sexual Assault below.

What is the current Texas law about Sexual Assault?

The Texas Sexual Assault law is defined in Texas Penal Code Section 22.011(a). Subsection (a)(1) of the Sexual Assault law applies to both adults and children, and the primary issue in these cases 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

The next subsection of the Texas Sexual Assault law, subsection (a)(2), deals with “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.

The Child Sexual Assault law described above has not changed since 2017, when the legislature added the phrase regardless of whether the person knows the age of the child at the time of the offense.^[2]

Although the underlying Sexual Assault law has not undergone any significant changes itself, the Texas legislature has made several changes to the definition of consent in the last several sessions. In addition, the legislature has updated many of the laws that deal with other aspects of Sexual Assault.

What changed in 2019

In 2019, the 86th Texas Legislature made several changes to the Sexual Assault crime. The legislature removed the limitations period for sex assault cases where biological matter has been collected but not yet subjected to testing.^[3] Learn more about the limitations period for Sexual Assault here.

The legislature also made changes to the penalty scheme for Sexual Assault and enacted a limitation on an affirmative defense.^[4] 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 available.

Texas lawmakers also created another form of Sexual Assault where the activity is without consent 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 particular donor.^[5] Learn more about this new category of Human Reproductive Tissue Sexual Assault.

What changed in 2021

In 2021, the Texas legislature added two new definitions to the meaning of “without consent.” Effective September 1, 2021, non-consent now also includes situations where you are coach or tutor who “caused someone to submit or participate by using the actor’s power or influence to exploit the other person’s dependency on the actor” and where you are a “caregiver hired to assist the other person with activities of daily life and cause the other person to submit or participate by exploiting the other person’s dependency.”^[6]

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.

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 both parties agree that it was consensual.

Sexual Assault of a Child covers certain 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.

Sexual Assault of a Child also requires the state to prove that the accused person engaged in the sexual activity “knowingly or intentionally.”^[7] So if the act was unintentional, the state would have to prove that the act was not somehow an accident.

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

Generally speaking, the age of consent in Texas is seventeen years old for the purposes of the Sexual Assault law. However, the age of consent 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,^[8] but this exception does not apply to people who have to register as sex offenders.^[9] 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 illegal behavior. If the sexual activity between people is consensual, it’s legal – if it is done without one party’s consent, it’s illegal.

Accordingly, what exactly consent means under the law is critical. In a general, dictionary-definition, sense, consent is an agreement or concurrent wish. But Texas law does not use a strictly dicitionary-definition meaning of the word consent. Texas law provides eleven twelve fourteen situations in which consent is legally lacking for the purposes of the Sexual Assault law (the twelfth situation was added by the legislature in 2019, the thirteenth and fourteenth in 2021):^[10]

(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;

(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]

(13) the actor is a coach or tutor who causes the other person to submit or participate by using the actor’s power or influence to exploit the other person’s dependency on the actor; or [This subdivision 13 is effective September 1, 2021]

(14) the actor is a caregiver hired to assist the other person with activities of daily life and causes the other person to submit or participate by exploiting the other person’s dependency on the actor.

Texas appellate courts regularly examine cases that hinge on legal issues related to consent. In Orgain v. State,^[11] 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.”^[12] 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.^[13]

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.^[14]

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.^[15] 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 are the affirmative 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.^[16] 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).^[17] The final element of this affirmative defense regarding Incest was added by the legislature in 2019,^[18] and is effective as of September 2019.^[19] 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.”^[20]

How old is a child under Texas Sexual Assault Law?

For purposes of the Texas Sexual Assault law, “child” is defined as a person younger than 17 years of age.^[21]

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.”^[22]

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).^[23]

What is the statute of limitation 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).^[24] 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.^[25] 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.^[26]

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).^[27]

All other types of Sexual Assault must be prosecuted within ten years of the date the offense was committed.^[28] 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.

What is the penalty for a Texas Sexual Assault offense?

Sexual Assault is by default a second-degree felony.^[29] 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.^[30] The Assisted Reproduction Sexual Assault offense, where consent is lacking by definition under subsection (b)(12), is classified as a state jail felony.^[31]

In addition to the punishment prescribed by the Penal Code, a Sexual Assault conviction will carry with it all of the consequences of any other felony conviction.

Sex Assault is also a reportable offense under Chapter 62, so sex offender registration requirements will apply. 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. 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.

You will 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.^[32]

Can you get probation for Sexual Assault in Texas?

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. The Texas Code of Criminal Procedure prohibits judges from placing people convicted of Sexual Assault on probation.^[33]

However, the code only prohibits juries from recommending probation for people convicted Sexual Assault if the victim of the offense was younger than 14 years of age at the time the offense was committed.^[34] Note, however, that juries may not recommend community supervision for any suspended sentence of over 10 years.^[35] Also, defendants are not eligible for community supervision if a deadly weapon was used or exhibited during the commission of any felony or immediate flight thereafter and the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[36]

Also, you can get deferred adjudication probation for Sexual Assault unless you have a prior deferred adjudication under Penal Code sections 21.11, 22.011, 22.021, 43.04, or 43.05 or a felony described by Article 42A.453(b).^[37]

What are typical conditions of probation?

If you are convicted of Sexual Assault, you will generally have to enroll in sex offender treatment. In addition, you will likely be prohibited from contacting the victim in the case. All of the standard probation conditions will apply as well, such as checking in with your probation officer, paying monthly supervision fees, and avoiding any further arrests.

Do I have to register as a sex offender in Texas if guilty of Sexual Assault?

Any Texas Sexual Assault conviction or adjudication, including deferred adjudication, requires registration as a sex offender, which entails both adults and juveniles with “reportable convictions” to register with the local police department in the city or county in which they reside.^[38]

What level of crime is Sexual Assault in Texas?

The Penal Code classifies the punishment for Sexual Assault as second degree felony or a first degree felony, depending on the circumstances.

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

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Legal References:

^1. Texas Penal Code §22.011(a), as amended by HB 1808, 85th Legislature, Section 6, eff. September 1, 2017^2. See H.B. 1808, 85th Legislature, Section 6, effective September 1, 2017^3. HB 8, 86th Legislature (RS)^4. HB 667, 86th Legislature (RS)^5. SB 1259, 86th Legislature (RS)^6. Texas Penal Code §21.011(b)(13)&(14), as enacted by SB 1164, 87th Legislature, Section 1^7. Texas Penal Code §22.011(a)(2)^8. Texas Penal Code §22.011(e)(2)(A)^9. Texas Penal Code §22.011(e)(2)(A)(i)&(ii)^10. Texas Penal Code §22.011(b)^11. Orgain v. State, No. 02-15-00174-CR, 2016 Tex. App. LEXIS 1712 (App. Fort Worth Feb. 18, 2016)^12 CAL. EDUC. CODE § 67386(a)(1) (West 2014)^13. Affirmatively Replacing Rape Culture with Consent Culture, 49 Tex. Tech L. Rev., 1, 8 (p. 6)^14. Affirmatively Replacing Rape Culture with Consent Culture, 49 Tex. Tech L. Rev., 1, 8 (p. 7)^15. 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.^16. Texas Penal Code §22.011(e)(1)^17. Texas Penal Code §22.011(e)(2)^18. H.B. 667, 86th Texas Legislature, Section 2^19. H.B. 667, 86th Texas Legislature, Sections 3 & 4^20. Texas Penal Code §22.011(d)^21. Texas Penal Code §21.011(c)(1)^22. Texas Code of Criminal Procedure Art. 13.15(1)(C)^23. Texas Code of Criminal Procedure Art. 13.17^24. Texas Code of Criminal Procedure Art. 12.01(1)(B)^25. HB 8, 86th Legislature, Section 2^26. Texas Code of Criminal Procedure Art. 12.01(1)(C)^27. SB 1259, 86th Legislature, Section 1^28. Texas Code of Criminal Procedure Art. 12.01(2)(E)^29. Texas Penal Code §22.011(f)^30. Texas Penal Code §22.011(f)(1)^31. Texas Penal Code §22.011(f)(2)^32. Texas Government Code §411.074(b)(1)(A)^33. Art. 42A.054(a)(8), Texas Code of Criminal Procedure^34. Art. 42A.056(4), Texas Code of Criminal Procedure^35. Art. 42A.053(c), Texas Code of Criminal Procedure^36. Art. 42A.054(b), Texas Code of Criminal Procedure^37. Art. 42A.102(b)(2)(A), Texas Code of Criminal Procedure.^38. Code of Criminal Procedure, Article 62.001(5)(A), lists Sexual Assault as a reportable offense and Texas Code of Criminal Procedure Art. 62.051(a) defines the registration requirement for reportable offenses.