Texas Penal Code 21.11 – Indecency with a Child

WHAT IS INDECENCY WITH A CHILD IN TEXAS?

Indecency with a child occurs in one of two ways: by exposure, or by sexual contact. A child is defined in this statute as a person under 17 years of age. 

• What is indecency with a child by contact? Indecency with a child by contact is either touching a child in a manner that constitutes “sexual contact,” or causing the child to make sexual contact with another, including the actor. “Sexual contact” is any inappropriate touching of the genitals, anus, or breast, whether over or under the clothes, with “intent to arouse or gratify the sexual desire of any person.”

• What is indecency with a child by exposure? Indecency with a child by exposure is showing a child a person’s genitals or anus, or causing the child to expose his or her genitals or anus, with the intent to arouse or gratify the sexual desire of any person. There is no recklessness element, unlike the law against indecent exposure, and the person does not have to know the age of the child in order to be arrested for indecency with a child.

WHAT IS THE INDECENCY WITH A CHILD LAW IN TEXAS?

Tex. Penal Code § 21.11. INDECENCY WITH A CHILD.

(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex and regardless of whether the person knows the age of the child at the time of the offense, the person:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or

(B) causes the child to expose the child’s anus or any part of the child’s genitals.

(b) It is an affirmative defense to prosecution under this section that the actor:

(1) was not more than three years older than the victim and of the opposite sex;

(2) did not use duress, force, or a threat against the victim at the time of the offense; and

(3) at the time 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.

(b-1) It is an affirmative defense to prosecution under this section that the actor was the spouse of the child at the time of the offense.

(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.

WHAT IS THE PENALTY CLASS FOR INDECENCY WITH A CHILD IN TEXAS?

Indecency with a child by contact is a second degree felony, punishable by two to 20 years in prison. Indecency with a child by exposure is a third degree felony, punishable by two to ten years in prison.

WHAT IS THE PUNISHMENT RANGE FOR INDECENCY WITH A CHILD IN TEXAS?

The punishment range for indecency with a child by contact, a second degree felony, is two to 20 years in prison, and a maximum fine of $10,000. Indecency with a child by exposure, a third degree felony, carries between two and ten years in prison, and a maximum fine of $10,000.

WHAT ARE THE PENALTIES FOR INDECENCY WITH A CHILD IN TEXAS?

A person charged with indecency with a child may be eligible for probation after a conviction, or deferred adjudication without a conviction, in limited circumstances.

• Can a person be placed on probation for indecency with a child? A judge may not grant probation after a person is convicted of indecency with a child. A jury may recommend placing a person on probation for a period between two and ten years, only if the jury sentences the defendant to ten years or less in prison, and if the victim was 14 years or older at the time of the offense.

• Can a person be placed on deferred adjudication for indecency with a child? Yes. A person charged with indecency with a child is eligible for deferred adjudication for a period between five and ten years, after a plea of guilty or nolo contendere (“no contest”) to a judge, only if the person has not previously been placed on community supervision for sexual assault, aggravated sexual assault, indecency with a child, aggravated promotion of prostitution, or compelling prostitution.

• Does indecency with a child require registration as a sex offender? Indecency with a child is a reportable adjudication or conviction included in the Sex Offender Registration Program, so a person convicted or placed on deferred adjudication will be required to register as a sex offender. Indecency with a child by contact is considered a sexually violent offense, so a person must register for life.

  A person convicted of or placed on deferred adjudication for indecency with a child by exposure will only have to register as a sex offender for ten years after their sentence expires.

WHAT ARE THE DEFENSES TO INDECENCY WITH A CHILD IN TEXAS?

The statute authorizes two affirmative defenses to indecency with a child. First, a person may assert he or she was the spouse of the child at the time of the offense. The second affirmative defense is available only if the person shows he or she: (1) did not use duress, force, or threats; (2) is no more than three years older than the victim “of the opposite sex”; and (3) is not already required to register as a sex offender. 

• What if there are no witnesses or physical evidence to prove indecency with a child? Those on trial for sexual offenses generally argue there is no proof of guilt beyond a reasonable doubt. It must be noted, however, that the testimony of a child victim alone is enough to convict a person of a sex offense, and children are afforded great latitude when testifying.

  The accuracy and clarity of an adult’s testimony is not expected from a child. The Court of Criminal Appeals recently upheld an indecency-by-contact conviction based solely on the defendant’s confession, where the victim was a non-verbal, seventeen-month-old infant with no actual injury. Shumway v. State, No. PD-0108-20 (Tex. Crim. App. 2022).

WHAT IS THE STATUTE OF LIMITATIONS FOR INDECENCY WITH A CHILD IN TEXAS?

There is no limitation period for indecency with a child, so a person may be prosecuted any time after committing the offense. 

INDECENCY WITH A CHILD IN TEXAS

The law protects children with harsh penalties for sex offenders. Inappropriately touching a child, over or under the clothing, will subject a person to a maximum prison sentence of 20 years, and lifetime registration as a sex offender. Exposing one’s genitals to a child for sexual gratification is punishable by up to ten years in prison.

TEXAS INDECENCY WITH A CHILD COURT CASES

The case law regarding indecency with a child in Texas shows how one criminal episode involving a child may subject a person to multiple charges.

• In Speights v. State, the victim, a six-year-old boy, told his guardian the defendant took him into the bathroom, and “played with him while he was playing with himself.” He also described it to his counselor as the defendant “playing with himself and then he played with me.” The defendant was convicted of indecency with a child by contact, and indecency with a child by exposure. The Court of Criminal Appeals upheld the convictions, finding a person can be punished for both, even if the exposure precedes the contact during the same criminal transaction. Here, the evidence showed the defendant masturbated, then sexually contacted the child. 464 S.W.3d 719 (Tex. Crim. App. 2015).