By Criminal Defense Lawyer Jeremy Rosenthal
(972) 369-0577
Statutory rape is the common term used to describe when a person over the age of consent (in Texas, 17) has sex with a person under the age of consent. Texas does not call it “Statutory Rape” and here it is just referred to as “Sexual Assault of a Child.” The penal code expressly states sexual assault of occurs regardless of whether the person knows the age of the minor. Tex.Pen.C. 22.011 (a)(2).
It is a second degree felony carrying 2-20 years of jail and equally concerning is it carries lifetime sex offender registration.
Strict Liability
Most crimes require what is known as a “mens rea” or mental state. An easy example of a culpable mental state is intentionally knowing you’re taking someone else’s umbrella when you leave a restaurant. You’re not committing a crime merely by taking it — but the crime occurs when you intentionally or knowingly take it without the owners consent.
Sexual Assault of a Child is known as a “strict liability offense” which means there is no culpable mental state. Like speeding, the offense is said to have occurred when the act is done regardless of what the actor intended. The constitutionality of the strict liability nature of statutory rape has been litigated in Courts over the years. The courts have cited an “overriding government interest in promoting the health, safety and welfare of it’s citizens” in upholding strict liability offenses.
The Romeo and Juliet Defense in Texas
It is an affirmative defense to sexual assault of a child where the actor was not more than 3 years older than the minor at the time of the intercourse and if the minor was at least 14 or older. Tex.Pen.C. 22.011(e). The defense sounds straight-forward but it can be a bit confusing.
In other words a 19 year old could have an affirmative defense to sexual assault of a child if the minor was 16 at the time they had sex provided it was consensual and their birthdays were no more than three years apart. Or, a person as old as 17 may also have an affirmative defense to statutory rape if the complaining witness was 14 — again — provided their birthdays were no more than 3 years apart and the act was consensual.
The defense would not apply to a 16 year old having sex with a 13 year old, however, by the statute’s very language. Nor would the defense apply to a person 19.5 years old having intercourse with someone 16 years, 1 month old.
“But I Thought She Was Old Enough”
Many people think it is or should be a defense if the person thought they were having sex with someone of age. This would be what is known as a “mistake of fact” defense under Texas Law. The mistake of fact would, in theory, nullify the culpable mental state. But courts haven’t recognized this defense in Texas. Again, because it is a strict liability offense – there is technically no mental state to nullify. So unless the legislature or the Court’s say otherwise, “I thought she was old enough” isn’t a winning argument.
So Is There Any Defense At All When Someone Thought Their Partner Was Old Enough?
A prosecutor has what I call an “over-ride switch” to the Texas Penal Code and the Code of Criminal Procedure. That is their duty not to necessarily seek a conviction but to see justice is done.
We can absolutely try to convince a prosecutor the facts of a particular case merit the case not being prosecuted. It could be the older person suffered from some sort of mental deficiency, illness, or shortcoming. It could be the teenager appeared and represented themselves as older in a particularly egregious manner, or even the teenaged minor used some other type of threat or coercion too. As I said, every case is unique and it can be a combination of factors.
The prosecutor has the legal duty and responsibility to evaluate each one to see if it merits prosecution… though, it is never favorable to be at a prosecutor’s mercy when lifetime sex offender registration is on the line.
*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization. He has been designated as a Texas Super Lawyer by Thomson Reuters.
Posted by niftybrady 
First, is the limited ability to communicate. In grade school we learn about verbal and non-verbal communication. The stuff happens to be true. Advocating for a client in person where the prosecutor or Judge can see and sense the depth and passion of an argument — even an informal one — is far better in person. Texting, phoning, and even zoom simply isn’t as effective.
