Texas Penal Code 21.02 – Continuous Sexual Abuse of Young Child or Disabled Individual

WHAT IS CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR DISABLED INDIVIDUAL IN TEXAS?

The Texas law against continuous sexual abuse of a young child or disabled individual punishes people age 17 or older who commit two or more acts of sexual abuse against a child or children younger than 14 years old, or against one or more disabled individuals, during a period of 30 days or more.

WHAT IS THE CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR DISABLED INDIVIDUAL LAW IN TEXAS?

Tex. Penal Code § 21.02. CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR DISABLED INDIVIDUAL.

(b) A person commits an offense if:

(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and

(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is:

(A) a child younger than 14 years of age, regardless of whether the actor knows the age of the victim at the time of the offense; or

(B) a disabled individual.

(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)(3), (4), (7), or (8); and

(8) compelling prostitution under Section 43.05 .

(d) If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.

(e) A defendant may not be convicted in the same criminal action of an offense listed under Subsection (c) the victim of which is the same victim as a victim of the offense alleged under Subsection (b) unless the offense listed in Subsection (c):

(1) is charged in the alternative;

(2) occurred outside the period in which the offense alleged under Subsection (b) was committed; or

(3) is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (b).

(f) A defendant may not be charged with more than one count under Subsection (b) if all of the specific acts of sexual abuse that are alleged to have been committed are alleged to have been committed against a single victim.

(g) With respect to a prosecution under this section involving only one or more victims described by Subsection (b)(2)(A), it is an affirmative defense to prosecution under this section that the actor:

(1) was not more than five years older than:

(A) the victim of the offense, if the offense is alleged to have been committed against only one victim; or

(B) the youngest victim of the offense, if the offense is alleged to have been committed against more than one victim;

(2) did not use duress, force, or a threat against a victim at the time of the commission of any of the acts of sexual abuse alleged as an element of the offense; and

(3) at the time of the commission of any of the acts of sexual abuse alleged as an element of the offense:

(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or

(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section or an act of sexual abuse as described by Subsection (c).

(h) An offense under this section is a felony of the first degree, punishable by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.

WHAT IS THE PENALTY CLASS FOR CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR DISABLED INDIVIDUAL IN TEXAS?

Continuous sexual abuse of a young child or disabled individual is a first degree felony, with a minimum prison sentence of 25 years, and a maximum of 99 years or life.

WHAT IS THE PUNISHMENT RANGE FOR CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR DISABLED INDIVIDUAL IN TEXAS?

The punishment range for continuous sexual abuse of a young child or disabled individual is 25 to 99 years or life in prison, and a maximum $10,000.

WHAT ARE THE PENALTIES FOR CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR DISABLED INDIVIDUAL IN TEXAS?

A person charged with continuous sexual abuse of a young child or disabled individual is not eligible for probation or deferred adjudication.

WHAT ARE THE DEFENSES TO CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR DISABLED INDIVIDUAL IN TEXAS?

The statute creates an affirmative defense for a person charged with continuous sexual abuse of a young child who is: (1) not more than five years older than the victim; (2) did not use duress, force, or threats; and (3) was not already required to register as a sex offender or convicted of a reportable offense. 

• What if the sexual relationship was consensual? In Texas, a person under 14 years of age is unable to legally consent to sex. While the law permits a person who is within five years of the victim’s age to raise that affirmative defense, the defense does guarantee an acquittal. A person may, instead, be convicted of a lesser-included offense such as sexual assault, or aggravated sexual assault. There is likewise no requirement that the accused actually knew the minor was under age. 

  In Fleming v. State, the 25-year-old defendant had consensual sex and a dating relationship with a 13-year-old girl, but argued she told him she was 22. The Court of Criminal Appeals rejected his claim on appeal that the law should require the State to prove he knew the girl’s age: “If the adult chooses not to ascertain the age of a sexual partner, then the adult assumes the risk that he or she may be held liable for the conduct if it turns out that the sexual partner is under age.”

WHAT IS THE STATUTE OF LIMITATIONS FOR CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR DISABLED INDIVIDUAL IN TEXAS?

There is no limitation for continuous sexual abuse of a young child or disabled individual, so a person may be charged any time after committing the offense.

CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR DISABLED INDIVIDUAL IN TEXAS

The legislature created the offense of continuous sexual abuse of a child or disabled individual to address sexual assaults against young children who are normally unable to identify the exact dates of the offenses when there are ongoing acts of sexual abuse.

TEXAS CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR DISABLED INDIVIDUAL COURT CASES

The case law regarding continuous sexual abuse of a young child or disabled individual in Texas shows a child’s testimony alone will support a conviction.

• In McCain v. State, the victim testified the defendant touched and put his finger inside her vagina “twice a week” during her entire second-grade school year. She estimated it occurred at least 20 times. The defendant was convicted of continuous sexual abuse, and sentenced to 30 years in prison. He argued on appeal that the punishment was cruel and unusual, but the appellate court rejected this argument and affirmed the conviction.
• In Allen v. State, the defendant was charged with committing multiple acts of sexual abuse against his ten-year-old stepdaughter from October of 2009 to August of 2012. The victim testified the defendant would grab her hand and make her touch his penis more than once when she was ten. She could not remember how many times, or for how long. He escalated to penetrating her vagina with his finger, but she did not give specifics. The jury convicted him of continuous sexual abuse, which was upheld on appeal, despite the child’s inability to give exact dates when the defendant committed these sex acts.