Sexual Abuse Charges – Blog 3: Sexual Assault of a Child

November 24, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

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

Other Defenses

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.

 

 


What is Statutory Rape?

October 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(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.