By Criminal Defense Lawyer Jeremy Rosenthal
As you can tell by the title, I’m writing a series of blogs on sexual abuse charges. You might be interested in a guide or index to these articles for more information. Today’s topic is “Continuous Sexual Abuse of a Child or Young Children” (“continuous”), its legal definition, and a few of the technical legal aspects of this law.
What is “Continuous Sexual Abuse of a Child” According to Texas Law?
“Continuous” is a law drafted to prevent and punish someone who sexually abuses a child victim repeatedly over months or even years. Most of these prosecutions involve an individual child though the law allows prosecution for multiple victims. It is codified under Tex.Pen.C. 21.02.
The punishment range for continuous sexual abuse of a child is 25 years to life with no possibility of parole.
If a person commits two acts of sexual abuse of a child which occur over 30 days apart from each other than the person has committed continuous sexual abuse of a child or young children.
It’s drafted really differently than any other sex crime charge so I think the easiest way to understand it is through examples:
Examples of Continuous:
Example 1 –
- Defendant commits act of sexual abuse on January 1 against victim A
- Defendant commits act of sexual abuse on January 31 against victim A or B
Example 2 –
- Sexual abuse on January 1 against victim A
- Sexual abuse on January 10 against victim A or B
- Sexual abuse on January 31 against victim A or B
Example 3 –
- Sexual abuse on January 1, year 1 against victim A
- Sexual abuse on January 10, year 1 against victim B
- Sexual abuse on May 1, year 3 against victim C
- Sexual abuse on July 1, year 5 against victim D
The easiest example is number 1. Two acts of sexual abuse more than 30 days apart from one another. Example 2 shows the existence of a third instance of abuse which isn’t more than 30 days apart doesn’t prevent prosecution for continuous though it does cause legal complications I’ll discuss in a minute.
Examples of what ISN’T Continuous:
- Sexual Abuse on January 1 against Victim A
- Sexual Abuse on January 10 against Victim A or B
- Sexual Abuse on January 30 against Victim A, B, or C
Here, all the abuse is within 30 days. For that reason defendant can be prosecuted for whatever crimes the abuse consisted of against the individual victims – but not continuous sexual abuse of a child or young children.
What is an Act of Sexual Abuse For the Purposes of Prosecution of Continuous Sexual Abuse of a Child?
The statute for “Continuous” lumps pretty much all of the acts of sexual abuse together for this type of prosecution. My guess is the legislature did this so defendants couldn’t wiggle out of a Continuous charge by nit-picking and claiming certain acts done to certain victims were not the same or didn’t constitute sexual abuse.
Here’s what the law says about acts of Sexual Abuse under 21.02(c)
(c) For purposes of this section, “act of sexual abuse” means any act that is a violation of one or more of the following penal laws:
(1) aggravated kidnapping under Section 20.04(a)(4), if the actor committed the offense with the intent to violate or abuse the victim sexually;
(2) indecency with a child under Section 21.11(a)(1), if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child;
(3) sexual assault under Section 22.011;
(4) aggravated sexual assault under Section 22.021;
(5) burglary under Section 30.02, if the offense is punishable under Subsection (d) of that section and the actor committed the offense with the intent to commit an offense listed in Subdivisions (1)-(4);
(6) sexual performance by a child under Section 43.25;
(7) trafficking of persons under Section 20A.02(a)(7) or (8); and
(8) compelling prostitution under Section 43.05(a)(2).
Where This Law Gets Extremely Complex
This statute has been the subject for much legal crazy-making for lawyers and judges for many reasons. Courts have done their best to end the confusion but it is still the subject of controversy. I don’t want to get too bogged down in these issues for this blog – but I’ll generally describe them because they’re still very important.
Jury Unanimity Issues
A major headache with this statute is the jury is not required to agree which allegations have been proven beyond a reasonable doubt to a jury and which have not. Instead, the jury must only agree beyond a reasonable doubt two or more instances occurred beyond the 30 days.
This is important because not only is it confusing, but because the US Supreme Court has been clear any factor which enhances a punishment range must not only be submitted to a jury but then proven to the jury beyond a reasonable doubt.
Another problem with the statute is the term “sexual abuse” combined with the unclear or fuzzy nature of children’s allegation of dates makes it extremely difficult for a defendant to know specifically what they are accused of doing so they have an opportunity to defend themselves.
Notice is always a difficult topic in child sexual abuse cases because the defendant always needs to know exactly what they are being put on trial for. The allegations in many continuous cases don’t do much better than telling someone, “we just think you’re a really bad child molester” and now we’ll put you on trial for it.
Overview of Continuous Sexual Abuse of a Child or Young Children Tex.Pen.C. 21.02
This is an extremely difficult statute in many ways to legally understand much less defend. The subject matter and the punishment possibilities make defending these cases as critical as cases can be in the courtroom.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Super Lawyer by Thomson Reuters.