Let’s start with basics but please note that what is considered Sexual Assault in Texas is far from basic. We were not addressing Aggravated Sexual Assault here which is Sexual Assault plus a specific aggravating factor listed in the law.
Sexual Assault is found in Section 22.011 of the Texas Penal Code
A person commits an offense if:
The person intentionally or knowingly:
Causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent; OR
Causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; OR
Causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; OR
Regardless of whether the person knows the age of the child at the time of the offense, the person intentionally or knowingly:
Causes the penetration of the anus or sexual organ of a child by any means; OR
Causes the penetration of the mouth of a child by the sexual organ of the actor; OR
Causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; OR
Causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; OR
Causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.
Let’s pause there.
Section 1 is for sexual assaults where the complaining witness is an adult.
Section 2 is for sexual assaults where the complaining witness is a child.
Notice the difference between the two sections. Section 1, with an adult complaining witness requires proof of the act being without the person’s consent. Section 2 does not require the act to be without the other person’s consent. This is because under the law, it is understood that children cannot consent to sexual conduct.
Child means a person younger than 17 years of age. In Texas, it does not matter if the child appears to be 17 or older and it does not matter that the child intentionally misrepresents the child’s age.
There is a provision regarding sexual assault of a child where there is an affirmative defense if either the accused was the spouse of the child at the time of the alleged offense
The accused was not more than 3 years older than the child at the time of the offense, the accused was not required to register as a sex offender at the time of the offense and the child was 14 or older, not legally prohibited from marrying the accused (think family member) and there is no issue which may arise with regarding bigamy (you will almost never see this bigamy issue).
This last section is often referred to as the Romeo and Juliet section because it covers basically high school dating and sexual relationships between those in higher and lower grades in high school.
Next, going back to the issue of consent with adult sexual assault cases…the sexual act must have been done without the consent of the other person.
There are 11 enumerated provisions under the law defining what constitutes “without the consent”:
- The accused compels the other person to submit or participate by the use of physical force, violence or coercion—This is probably the paragraph that is most often listed as a reason for “without the consent.” Think someone physically restraining the other person, pinning the person down, putting a hand over the person’s mouth, hitting the person, etc.;
- The accused compels the other person to submit or participate by threatening to use force or violence against the other person or to cause harm to the other person, and the other person believes that the accused has the present ability to execute the threat;
- The other person has not consented and the accused knows the other person is unconscious or physically unable to resist—usually charges when the person is asleep;
- The accused knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
- The other person has not consented and the accused knows the other person is unaware that the sexual assault is occurring—usually reserved for when the other person is extremely intoxicated;
- The accused has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge—i.e. “date rape drug” placed in the other person’s drink;
- The accused compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the accused has the present ability to execute the threat—only way this differs from Paragraph 2 above is that the threat here is to use force or violence against ANY person—Think threaten a family member;
- The accused is a public servant who coerces the other person to submit or participate—Think a police Officer who says, “I won’t arrest you for the drugs in your purse if you have sex with me;”
- The accused is a mental health services provider or a health care services provider (definitions are in the Code) who causes the other person, who is a patient or former patient of the accused to submit or participate by exploiting the other person’s emotional dependency on the accused;
- The accused is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser; or
- The accused is an employee of a facility (definition in the code) where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.
There is one more defense in the code for the touching of a child’s sexual organ or anus of the child for medical purposes.
Sexual Assault is a Second Degree Felony carrying a possible prison term of 2-20 years and lifetime sex offender registration.
There is a rarely seen situation listed in the code when it can be a first degree. Normally, the first degree is reserved for Aggravated Sexual Assault—this will be covered in another blog post.
We are always available to help you through this complex statute and even more complex time in your life. These cases are challenging but they and murder cases are our primary focus.
From your first meeting in our firm, we know you will recognize this is more than what you expected out of a law firm. We pride ourselves on professionalism in and out of court, our accessibility (our clients know they can set up an appointment and speak with us when they would like and will often email us directly about any questions or concerns), and our passion for the law. Contact our criminal defense team today by calling (512) 494-4070 or requesting a free consultation online now.
Steven Brand is a Board Certified criminal defense lawyer who graduated cum laude from the Benjamin N. Cardozo School of Law in New York City, achieving distinction there as a member of the Order of the Coif. He holds a Bachelor’s Degree in Business Administration from the University of Michigan. During law school, Mr. Brand studied under attorney Barry Scheck, a nationally renowned death penalty lawyer and founder of the first innocence project. Mr. Brand is admitted to practice law in the states of Texas and New York and the U.S. District Court of the Western District of Texas, Eastern District of New York, Southern District of New York (New York City), U.S. Court of Appeals of the Armed Forces, Navy/Marine Corps Court of Criminal Appeals, Army Court of Criminal Appeals, and the Air Force Court of Criminal Appeals.