Sexual Performance by a Child Law Image

Sexual Performance by a Child in Texas

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.1 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.

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

Considering 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 Indecency with a Child. 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.

If you have been accused of Sexual Performance by a Child, please contact us immediately at (888) 239-9305 or by our online contact form so that we can help defend you from this serious accusation. Consultations with a defense attorney are free.

Have you been arrested for Sexual Performance by a Child?

If you have been arrested for Sexual Performance by a Child, the time to call a defense attorney is now. Please reach out to us immediately at (888) 239-9305 to schedule a free consultation.

Defending you against a Sexual Performance charge is a serious undertaking with many complex defense strategies to consider. Whether you are being accused of taking the video or photo, being involved in the performance or a parent who consented, the state’s attorney will attempt to prosecute you as seriously as anyone else involved. If you are convicted you will be subject to the same penalties as any other serious felony sex crime in Texas, including sex offender registration. You need to hire an experienced criminal defense attorney who can help you defend yourself against this aggressive prosecution.

How can I be arrested or charged with Sexual Performance by a Child?

While you can be charged with a crime even if you did nothing wrong and are totally innocent (this happens all of the time), a person can be convicted of Sexual Performance by a Child only if he or she “employs, authorizes, or induces” a child (under eighteen) to “engage in sexual conduct or sexual performance,” OR, if a parent or guardian of a child, that he or she “consented” to a child’s sexual performance. Someone can also be convicted if he or she “produces, directs, or promotes” a performance that includes sexual conduct by a child (under eighteen).

This obviously can extend to a wide range of people involved with any given sexual performance. If you have anything at all to do with a sexual performance by a child, you are at risk for prosecution. However, importantly, there are many ways to defend yourself from a conviction. It is crucial that you contact us as soon as possible to speak with a criminal defense attorney to defend your rights. Not everyone who has been accused is guilty of being involved with a sexual performance under the law, and even if you have been involved with a participation in a sexual performance by a child, the law in Texas does not say that you are necessarily guilty of the offense–there are a number of important exceptions in both statutory and case law.

What is the Sexual Performance by a Child law in Texas?

Sexual Performance by a Child is defined in Chapter 43 of the Texas Penal Code at Section 43.25(b) and (d):

(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.

What are the affirmative defenses for Sexual Performance?

The affirmative defenses for Sexual Performance are (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” and (3) the person is no more than two years older than the child.2

What are the penalties for Sexual Performance by a Child?

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.3

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.4

What is the difference between a first, second and third degree felonies in Texas?

What does “Sexual Performance” 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.”5

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.”6

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.”7

What are all of the sex crimes in Texas?

We have compiled a complete list of all of the Sex Crimes in Texas. See a list of all of the Texas Sex Crimes


Legal References:

1 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.”).

2 Texas Penal Code Section 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.

3 Texas Penal Code Section 43.25(c)

4 Texas Penal Code Section 43.25(e)

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

6 Texas Penal Code Section 43.25(a)(a)(3)

7 Texas Penal Code Section 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.