Texas Penal Code 22.011 – Sexual Assault
WHAT IS SEXUAL ASSAULT IN TEXAS?
The Texas law against sexual assault, or rape, prohibits a person from engaging in sexual conduct with another without consent.
- What is the age of consent in Texas?The legal age of consent in Texas is 17, based on the sexual assault statute’s definition of “child” as anyone under 17 years of age. So, even if a child under 17 agrees to sex, the person engaging in sex with the minor may be charged with sexual assault. However, a child age 14 to 17 can consent to sex as long as the other person is not more than three years older. A child under 14 cannot consent to sex with anyone in any situation. Further, in the majority of criminal statutes, such as human smuggling, human trafficking, sexual performance by a child, and possession of child pornography, a “child” is a person under 18 years of age.
- What is consent in Texas?Consent is defined as “assent in fact, whether express or apparent.” While a lack of consent is clear in situations involving physical force, violence, coercion, or threats thereof, the question of consent has proven to be a difficult one to answer in other scenarios. The statute sheds some light on this contentious gray area by specifying certain relationships where a person may be unable to legally consent:
- the victim is unconscious or physically unable to resist, and did not previously consent;
- the victim, due to mental disease or defect, is unable to resist or assess the nature of what is occurring;
- the person knows the victim is unaware the sexual assault is occurring, and did not previously consent;
- the person gives the victim a substance (whether a “roofie” or other drug or substance) without the victim’s knowledge to intentionally impair his or her judgment;
- a public servant who coerces the victim;
- an employee of a residential facility in which the victim is a resident;
- a mental health services provider, such as a therapist or counselor, or a healthcare services provider, who exploits a patient’s or former patient’s emotional dependence on the provider;
- a fertility doctor or other healthcare provider who artificially inseminates a patient without consent, or uses reproductive material that was not previously approved by the patient;
- a clergyman who, acting in his or her professional character as a spiritual adviser, exploits a person’s emotional dependence;
- a coach or tutor who, by using his or her power or influence, exploits a person’s dependence;
- a hired caregiver who exploits another’s dependence.
- What types of sexual conduct does Texas law consider “rape”?Texas law prohibits oral sex with a minor or non-consenting adult, and penetration “by any means” of a minor’s or non-consenting adult’s anus or sexual organ. Texas courts have interpreted penetration as the “tactile contact beneath the fold of . . . external genitalia,” which includes anything “more intrusive than contact with . . . outer vaginal lips.” See Cornet v. State, 359 S.W.3d 217, 226 (Tex. Crim. App. 2012).
WHAT IS THE SEXUAL ASSAULT LAW IN TEXAS?
Tex. Penal Code § 22.011. SEXUAL ASSAULT.
(a) A person commits an offense if :
(1) the person intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or
(C) 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
(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.
(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of physical force, violence, or coercion;
(2) the actor 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 actor has the present ability to execute the threat;
(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
(4) the actor 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;
(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
(6) the actor 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;
(7) the actor 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 actor has the ability to execute the threat;
(8) the actor is a public servant who coerces the other person to submit or participate;
(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;
(10) the actor 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;
(11) the actor is an employee of a facility 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;
(12) the actor is a health care services provider who, in the course of performing an assisted reproduction procedure on the other person, uses human reproductive material from a donor knowing that the other person has not expressly consented to the use of material from that donor;
(13) the actor is a coach or tutor who causes the other person to submit or participate by using the actor’s power or influence to exploit the other person’s dependency on the actor; or
(14) the actor is a caregiver hired to assist the other person with activities of daily life and causes the other person to submit or participate by exploiting the other person’s dependency on the actor.
. . .
(d) It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.
(e) It is an affirmative defense to prosecution under Subsection (a)(2):
(1) that the actor was the spouse of the child at the time of the offense; or
(A) the actor was not more than three years older than the victim and at the time of the offense:
(i) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and
(B) the victim:
(i) was a child of 14 years of age or older; and
(ii) was not:
(a) a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01; or
(b) a person with whom the actor was prohibited from engaging in sexual intercourse or deviate sexual intercourse under Section 25.02.
(f) An offense under this section is a felony of the second degree, except that an offense under this section is:
(1) a felony of the first degree if the victim was:
(A) a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01; or
(B) a person with whom the actor was prohibited from engaging in sexual intercourse or deviate sexual intercourse under Section 25.02; or
(2) a state jail felony if the offense is committed under Subsection (a)(1) and the actor has not received express consent as described by Subsection (b)(12).
WHAT IS THE PENALTY CLASS FOR SEXUAL ASSAULT IN TEXAS?
By default, sexual assault is a second degree felony, punishable by two to 20 years in prison. It is enhanced to a first degree felony, punishable by five to 99 years or life in prison, if the person is related to the victim, or if the person is married to another at the time of the sexual assault.
Sexual assault is a state jail felony, punishable by 180 days to two years in a state jail facility, for a doctor or healthcare provider who inseminates a patient without consent, or uses unapproved reproductive material.
If a person sexually assaults a public servant, or a member of the public servant’s family or household, in retaliation for or on account of the public servant’s status, the penalty classification is increased to the next highest category. See Tex. Penal Code § 12.501.
WHAT IS THE PUNISHMENT RANGE FOR SEXUAL ASSAULT IN TEXAS?
A person charged with second degree felony sexual assault faces between two and 20 years in prison, and a maximum fine of $10,000.
The punishment is increased to the first degree felony range of five to 99 years or life in prison if the accused is related to the victim, or legally married to someone other than the victim at the time of the offense.
Medical professionals performing artificial insemination procedures who are charged with state jail felony sexual assault face between 180 days and two years in a state jail facility, and a maximum fine of $10,000.
WHAT ARE THE PENALTIES FOR SEXUAL ASSAULT IN TEXAS?
A person charged with sexual assault may be eligible for probation after a conviction, or deferred adjudication without a conviction, under limited circumstances.
- Can a person be placed on probation for sexual assault in Texas?A judge may not grant probation after a person is convicted of sexual assault. A jury may recommend suspending imposition of a prison sentence and placing a person on probation only if the jury assesses a sentence of ten years or less, and if the victim was 14 years of age or older at the time of the offense. The maximum term of probation is ten years.
- Can a person be placed on deferred adjudication for sexual assault in Texas?Yes. A person charged with sexual assault 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 sexual assault require registration as a sex offender in Texas?Yes. Sexual assault 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. Because sexual assault is considered a sexually violent offense, a person must register for life.
- Does Texas law allow multiple counts in a sexual assault indictment to be stacked?Texas Penal Code Section 3.03 gives a judge discretion to “stack” sentences, or run punishments consecutively, if a person is indicted for multiple counts of sexual assault against a victim under 17. For example, if a person was convicted of two counts of sexually assaulting a child under 17, and sentenced to 20 years on each count, the trial judge may order the person to serve each sentence separately, for a total of 40 years in prison. If the victim was over 17 years of age, convictions for multiple counts of sexual assault in an indictment must be run concurrently.
WHAT ARE THE DEFENSES TO SEXUAL ASSAULT IN TEXAS?
There are two affirmative defenses for sexual assault of a child. The first is available if the accused is married to the child victim. The second, known as “the three-year rule,” or “within-three-years defense,” is available if the victim is between 14 and 17 years old, the accused is no more than three years older than the victim, they are not related or married to other people, and the sexual contact was consensual.
- What if the alleged sexual assault was for medical care?Texas law creates a “medical-care defense,” which justifies what would otherwise be an unlawful touching of a child. It is only available for a person accused of sexually assaulting a child, and there must not have been any contact between the child’s sex organ or anus and the accused’s mouth, anus, or sex organ. This defense requires a person to confess to the conduct, and argue it was for the purpose of medical care, thus negating criminal culpability.In Browne v. State, the defendant’s wife ran a daycare in their home, and would occasionally leave the children in the defendant’s care. The defendant was indicted, and ultimately convicted, of aggravated sexual assault of a child for penetrating the child’s anus with his finger. He argued he was wiping the child’s bottom after he went to the bathroom, which constituted medical care. However, because he denied penetrating the child’s anus, he did not confess to any conduct justifiable by the medical-care defense. Conviction affirmed.
- What if the alleged sexual assault of a child was consensual?In Texas, a person under 17 cannot legally consent to sex. It is also not required that the accused know the child is under 17, which is why this is often referred to as “statutory rape.” It is not rape in the conventional sense, but is nevertheless a crime under the statute.This law has been hotly contested, but upheld as constitutional. 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 SEXUAL ASSAULT IN TEXAS?
There is no limitation period for sexual assault if:
- the victim was under 17 years old; or
- DNA was collected, and either has not yet been tested, or was tested and does not match the victim or any readily ascertainable person; or
- the offender is suspected of having committed the same or similar sex offense against five or more victims (a “serial rapist”).
The limitation period for sexual assault is otherwise ten years, unless committed by artificial insemination without consent, in which case it is two years from the date of discovering the medical professional’s use of unapproved reproductive material.
SEXUAL ASSAULT IN TEXAS
Sexual assault is engaging in sexual conduct without the other participant’s consent. The legal age of consent in Texas is 17 years old, so anyone under 17 may not legally consent, unless they are over 14 and the other person is not more than three years older.
The law does not require proof the person knew the minor’s age in order to charge that person with sexual assault—only proof that the person had sex with a minor.
(9) TEXAS SEXUAL ASSAULT COURT CASES
The case law regarding sexual assault in Texas shows how the most recent amendment applies to increased penalties for married offenders.
- In Estes v. State, the defendant was married, and had an ongoing affair with a 14-year-old girl. He was convicted of sexual assault of a child, which was enhanced to a first degree felony, because the already-married defendant was prohibited from marrying the victim. He asserted on appeal that the statute is unconstitutional for its harsher punishment on married defendants.The Court of Criminal Appeals disagreed. Because there is a “certain aura of trustworthiness” in married individuals, a harsher punishment for those who abuse that trust to sexually assault a child furthers the State’s legitimate interest in punishing sexual exploitation of children.
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DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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