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Indecency with a Child in Texas

Indecency with a Child is the Texas offense that is commonly known as “Child Molestation.” In order to obtain a conviction for Indecency with a Child, the state’s lawyers must prove that the victim was under 17 years old and that the molestation was either by “exposure” (Indecency – Exposure) or by sexual “contact” (Indecency – Contact).

Have you been charged with Indecency with a Child in Texas? Call criminal defense lawyer Paul Saputo at (888) 239-9305.

Although Indecency with a Child is also closely related to the Texas offense of Sexual Performance by a Child, there are important differences. One main difference is the age of consent for each offense (in the case of indecency with a child, the age of consent is 17 years old, whereas the age of consent is 18 years old for sexual performance).

Indecency with a Child is one of the “Statutory Rape” charges in Texas, the other related law being Sexual Assault of a Child. Indecency of a Child covers a more types of sexual conduct between adults and children than what Sexual Assault covers. Indecency with a Child is also a lesser included offense of Sexual Assault of a Child, so if you could be charged with Sexual Assault of a Child, you could also be charged with Indecency with a Child.

What is the law about Indecency With a Child in Texas?

Indecency with a Child is the Texas law that is commonly referred to as “Statutory Rape.” This is the basic age of consent law in Texas, placing the age for consent at 17 years old. A child under the age of 17 (so that is a 16 year old or below) cannot consent to any sexual acts with an adult, except under a few narrowly defined exceptions.

Indecency with a Child is defined in Chapter 21 of the Texas Penal Code at Section 21.11 as follows:

(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or

(B) causes the child to expose the child’s anus or any part of the child’s genitals.

Subsection (a)(1) describes the Indecency by Contact type of Indecency with a Child charge, and subsection (a)(2) describes the Indecency by Exposure type of Inecency with a Child charge. There are two different affirmative defenses provided by the law even if the molestation is admitted. These are described in the paragraph below.

The statute also describes what “sexual contact” specifically means. Jump to an explanation of a”sexual contact”

What are the affirmative defenses to Indecency with a Child?

There are two affirmative defenses to Indecency with a Child in Texas. The first affirmative defense requires an age difference of less than three years, and the people have to be of the opposite sex.1 In addition, no duress, force, or threat may have been used and you must not already be a registrable sex offender.2 The second affirmative defense is that the people are married.3

What is the difference between “Indecency with a Child” and “Sexual Performance by a Child” under Texas law?

The first crucial difference between “Indecency with a Child” and “Sexual Performance by a Child” under Texas law is the age of consent. The age of consent for Sexual Performance is 18 years old, and the age of consent for the “statutory rape” charge of Indecency with a Child is 17 years old.

The other critical difference between “Indecency with a Child” and “Sexual Performance by a Child” is the illegal behavior. In “Indecency with a Child” the forbidden activity is essentially any form of sexual contact. In “Sexual Performance by a Child” the forbidden activity is essentially a “performance” of some kind. It is important to read the full text of the statute and understand the relevant case law to fully flesh out this difference, but if you have been charged with either crime, you should contact a criminal defense attorney to discuss the specifics of your case.

Have you been charged with Indecency with a Child?

If you have been charged with indecency with a Child, please contact us immediately to speak with an attorney about your case. Defending yourself against this charge is tricky, and it is definitely not something that you want to attempt to do yourself. The charge will usually involve challenging the word of the victim, who is a child and who will be looked at as the “victim” in this case–even if the child consented to the activity. This is never easy to do, and you need an experienced sex crimes defense attorney who can help you navigate this situation and craft your best defense strategy.

What is sexual contact?

For the purposes of Indecency with a Child under Texas law, sexual contact is defined in Section 21.11(c):

(c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

What Is the age of consent in Texas?

The age of consent in Texas actually varies upon the activity. As described above, the age of consent for any type of sexual contact between an adult and a “child” is 17 years old. The age of consent for “sexual performance” (think pornography or videotaping) is a 18 years old. A seventeen year old cannot consent to have himself or herself filmed doing sexual activity, and a sixteen year old cannot consent to having sexual contact with an adult. Both of these crimes are strict liability crimes, meaning that it does not matter whether the adult knows the child’s age or not. What the victim told the criminal defendant does not matter.

If you have any questions about the age of consent in Texas, please feel free to contact us at our Dallas office and speak with a criminal defense attorney now.

What is the penalty for an Indecency with a Child conviction?

Indecency with a Child is punished as a second degree felony if it is charged under subsection (a)(1) (the Indecency with a Child – Sexual Contact) and as a third degree felony if it is charged under subsection (a)(2) (Indecency with a Child – Exposes).4


Legal References:

1 Texas Penal Code 21.11(b)(1)

(b) It is an affirmative defense to prosecution under this section that the actor:

(1) was not more than three years older than the victim and of the opposite sex;

(2) did not use duress, force, or a threat against the victim at the time of the offense; and

(3) at the time of the offense:

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

(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.

2 Texas Penal Code 21.11(b)(2)-(b)(3) – (see above)

3 Texas Penal Code 21.11(b-1) –

(b-1) It is an affirmative defense to prosecution under this section that the actor was the spouse of the child at the time of the offense.

4 Texas Penal Code 21.11(d)