The Texas crime of Sexual Performance by a Child makes it illegal to allow or encourage a child (including anyone under 18 years old) to participate in a “sexual performance” or engage in “sexual conduct.” Sexual performance and sexual conduct are defined to mean a very wide array of activities. You can be charged with this offense whether you are the child’s parent or totally unrelated.

With the exceptions outlined in the statute and the wide reach of people subject to criminal penalties, the Texas offense of Sexual Performance is significantly more complex than the Indecency with a Child offense. Indecency with a Child is the basic “Statutory Rape” offense in Texas and requires the state’s attorneys to prove nothing more than the child’s age and the sexual contact.Sexual Performance by a Child is much more complicated.

What is the current Texas law about Sexual Performance by a Child?

The current Texas law defines the offense of Sexual Performance by a Child in Penal Code Section §43.25 as follows:^[1]

(b) A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.

(d) A person commits an offense if, knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.

Sexual Performance by a Child is closely related to the Texas offense of Indecency with a Child, but there are important differences. The age of consent for the Sexual Performance offense is 18 years old, while the age of consent for Indecency with a Child is 17 years old. The prohibited behavior is also different. “Sexual Performance” requires either some kind of visual representation such as a part in a play or movie (or, for instance, a selfie or other cell phone photo or video) or sexual conduct.^[2] The Sexual Performance by a Child law also extends to parents of children and people who are involved with a film such as directors, promoters and producers, but there are numerous exceptions described in the sexual performance statute as well. Learn more about the difference between Sexual Performance by a Child and Indecency with a Child

What are the affirmative defenses for Sexual Performance?

You may assert any of three affirmative defenses for a prosecution for Sexual Performance by a Child: (1) that the accused person was married to the child at the time, (2) that “the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose” or (3) the person is no more than two years older than the child.^[3]

What does Sexual Performance mean?

The penalties for Sexual Performance range from a third degree felony to a first degree felony. If you are convicted of a violation of subsection (b), it is punished as a second degree felony, unless the child was younger than 14 years old (so, 13 years old and younger), in which case it is punishable as a first degree felony.^[4]

If you are convicted of a violation of subsection (d), it is punished as a third degree felony, unless the child was younger than 14 years old (so, 13 years old and younger), in which case it is punishable as a second degree felony. ^[5]

Learn more about the difference between first, second and third degree felonies in Texas

The punishment law was updated in 2017 with the passage of H.B. 1808, but it made only minor changes to the language, intending to clarify that you don’t need to be aware of the age of a child involved to suffer the penalty of the enhancement.^[6]

What does Sexual Conduct mean?

Sexual Performance is defined under Texas state law as “any performance or part thereof that includes sexual conduct by a child younger than 18 years of age.”^[7]

A “performance” is defined as “any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience of one or more persons.”^[8]

What are the penalties for Sexual Performance by a Child?

“Sexual Conduct” is defined as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.”^[9]

What is a “child” under the Sexual Performance law?

In both subsections (b) and (d), the statute explicitly states that it applies to a “child younger than 18 years of age.” So this offense would cover sexual performances and conduct of 17 year olds and younger.

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Legal References:

^1. Texas Penal Code §43.25^2. Sexual conduct is similarly criminalized in the Indecency with a Child law. Instead of seeing a conflict between Indecency with a Child and Sexual Performance, courts have interpreted the two laws as having different offended parties. See Dornbusch v. State, 156 SW 3d 859 – Tex: Court of Appeals, 13th Dist. 2005 (“section 21.11 is in the part of the penal code that criminalizes offenses against persons, whereas section 43.25 is in the part of the code that criminalizes offenses against the public decency and order.”).^3. Texas Penal Code §43.25(f) –

(f) It is an affirmative defense to a prosecution under this section that:

(1) the defendant was the spouse of the child at the time of the offense;

(2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or

(3) the defendant is not more than two years older than the child.

^4. Texas Penal Code §43.25(c)^5. Texas Penal Code §43.25(e)^6. House Bill 1808, 85th Legislature, Section 12, effective September 1, 2017. Section 43.25(c)&(e), Penal Code, as amended by H.B. 1808 (language in bold was added by H.B. 1808):

(c) An offense under Subsection (b) is a felony of the second degree, except that the offense is a felony of the first degree if the victim is younger than 14 years of age at the time the offense is committed, regardless of whether the actor knows the age of the victim at the time of the offense.

(e) An offense under Subsection (d) is a felony of the third degree, except that the offense is a felony of the second degree if the victim is younger than 14 years of age at the time the offense is committed, regardless of whether the actor knows the age of the victim at the time of the offense.

^7. Texas Penal Code §43.25(a)(a)(1)^8. Texas Penal Code §43.25(a)(a)(3)^9. Texas Penal Code §43.25(a)(a)(2)

(4) “Produce” with respect to a sexual performance includes any conduct that directly contributes to the creation or manufacture of the sexual performance.

(5) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.

(6) “Simulated” means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.

(7) “Deviate sexual intercourse” and “sexual contact” have the meanings assigned by Section 43.01.

(g) When it becomes necessary for the purposes of this section or Section 43.26 to determine whether a child who participated in sexual conduct was younger than 18 years of age, the court or jury may make this determination by any of the following methods:

(1) personal inspection of the child;

(2) inspection of the photograph or motion picture that shows the child engaging in the sexual performance;

(3) oral testimony by a witness to the sexual performance as to the age of the child based on the child’s appearance at the time;

(4) expert medical testimony based on the appearance of the child engaging in the sexual performance; or

(5) any other method authorized by law or by the rules of evidence at common law.