By Criminal Defense Lawyer Jeremy Rosenthal
Today I’m continuing my blog series on Sexual Abuse Charges. Here is a guide to this series of blogs on sexual abuse charges where you can find more information on today’s blog and other related topics.
What is Sexual Assault of a Child in Texas?
Sexual assault of a child in Texas is committed when one of a number of sexual acts is committed between against a child who is younger than 17 but is 14 or older. Another common term for this offense is “statutory rape” but this word doesn’t appear in the code.
For situations where an accuser is younger than 14, the applicable statute is typically aggravated sexual assault of a child.
I again apologize for the graphic nature of these descriptions, but Tex.Pen.C. 22.011(a)(2) defines the acts associated with 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.
Punishment for Sexual Assault of a Child
This is a 2nd degree felony in texas punishable between 2 and 20 years of prison and a fine not to exceed $10,000. A person can be eligible for deferred adjudication or regular probation however it triggers lifetime sex offender registration.
Not Knowing the Age of the Child is Not a Defense
Statutory rape is what is known as a “strict liability offense.” This means there is no necessary “mens rea” or culpable mental state needed to prosecute the offense.
Tex.Pen.C. 22.011(b) does require the crime be committed “intentionally or knowingly.” This language refers to the physical acts themselves – not whether the actor knew the age of the complaining witness.
The legal reasoning which makes whether the actor knew the was under the age of consent irrelevant is because the state has such a heightened interest in protecting children – that courts believe it outweighs the defendant’s due process rights.
The “Romeo and Juliet” Defense
A more recent defense to sexual assault of a child is what is referred to as the “Romeo and Juliet” defense under Tex.Pen.C. 22.011(e)(2)(a).
This defense requires the following to be true:
- The victim cannot younger than 14;
- The defendant cannot be more than 3 years older than the victim;
- The defendant cannot already be a sex offender;
- the victim cannot be someone who legally could not marry the defendant.
- The acts must be consensual
The code provides other defenses to sexual assault of a child related to medical care and marriage. Both are very specific as to what they require.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.