Texas Penal Code 43.25 – Sexual Performance by a Child

WHAT IS SEXUAL PERFORMANCE BY A CHILD IN TEXAS?

The Texas law against sexual performance by a child prohibits employing, authorizing, or inducing a child under 18 to engage in sexual conduct or a sexual performance, or producing, directing, or promoting a sexual performance that includes sexual conduct by a child under 18.

• Can a parent be charged with sexual performance by a child in Texas? Yes. Texas Penal Code Section 43.25 punishes a parent, guardian, or custodian for consenting to the child’s participation in a sexual performance, knowing the content and character thereof.

• What is a sexual performance? Texas Penal Code Section 43.25 defines “sexual performance” as any play, motion picture, photograph, dance, or other visual representation or part thereof that includes sexual conduct by a child younger than 18 years of age. “Sexual conduct” is sexual contact, sexual intercourse, deviate sexual intercourse (oral sex), bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, anus, or the female nipple.

WHAT IS THE SEXUAL PERFORMANCE BY A CHILD LAW IN TEXAS?

Tex. Penal Code § 43.25. SEXUAL PERFORMANCE BY A CHILD.

(b) A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.

(c) An offense under Subsection (b) is a felony of the second degree, except that the offense is a felony of the first degree if the victim is younger than 14 years of age at the time the offense is committed, regardless of whether the actor knows the age of the victim at the time of the offense.

(d) A person commits an offense if, knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.

(e) An offense under Subsection (d) is a felony of the third degree, except that the offense is a felony of the second degree if the victim is younger than 14 years of age at the time the offense is committed, regardless of whether the actor knows the age of the victim at the time of the offense.

(f) It is an affirmative defense to a prosecution under this section that:

(1) the defendant was the spouse of the child at the time of the offense;

(2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or

(3) the defendant is not more than two years older than the child.

(g) When it becomes necessary for the purposes of this section or Section 43.26 to determine whether a child who participated in sexual conduct was younger than 18 years of age, the court or jury may make this determination by any of the following methods:

(1) personal inspection of the child;

(2) inspection of the photograph or motion picture that shows the child engaging in the sexual performance;

(3) oral testimony by a witness to the sexual performance as to the age of the child based on the child’s appearance at the time;

(4) expert medical testimony based on the appearance of the child engaging in the sexual performance; or

(5) any other method authorized by law or by the rules of evidence at common law.

(h) Conduct under this section constitutes an offense regardless of whether the actor knows the age of the victim at the time of the offense.

WHAT IS THE PENALTY CLASS FOR SEXUAL PERFORMANCE BY A CHILD IN TEXAS?

The penalty classification for sexual performance by a child depends on the conduct, and child’s age at the time of the sexual performance.

• Third degree felony, punishable by two to ten years in prison, if:
  • produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age;
• Second degree felony, punishable by two to 20 years in prison, if the person:
  • produces, directs, or promotes a performance that includes sexual conduct by a child younger than 14 years of age;
  • employs, authorizes, or induces a child under 18 to engage in sexual conduct or a sexual performance; or
  • is a parent, legal guardian, or custodian who consents to the participation of a child under 18 years of age in a sexual performance;
• First degree felony, punishable by five to 99 years or life in prison, if:
  • employs, authorizes, or induces a child under 14 to engage in sexual conduct or a sexual performance; or
  • is a parent, legal guardian, or custodian who consents to the participation of a child under 14 years of age in a sexual performance.

WHAT IS THE PUNISHMENT RANGE FOR SEXUAL PERFORMANCE BY A CHILD IN TEXAS?

The punishment range for sexual performance by a child corresponds to the penalty classification, which depends on the person’s conduct, and the child’s age.

• First degree felony: five to 99 years or life in prison, maximum $10,000 fine;
• Second degree felony: two to 20 years in prison, maximum $10,000 fine;
• Third degree felony: two to ten years in prison, maximum $10,000 fine.

WHAT ARE THE PENALTIES FOR SEXUAL PERFORMANCE BY A CHILD IN TEXAS?

A person charged with sexual performance by a child is eligible for deferred adjudication after a plea of guilty or nolo contendere (“no contest”) to a judge for a period of up to ten years. A person convicted of sexual performance by a child is not eligible for probation from a judge or jury.

• Does sexual performance by a child require registration as a sex offender in Texas? Yes. Sexual performance by a child is a reportable adjudication or conviction included in the Sex Offender Registration Program. A person convicted or placed on deferred adjudication will be required to register as a sex offender.

WHAT ARE THE DEFENSES TO SEXUAL PERFORMANCE BY A CHILD IN TEXAS?

The statute authorizes three affirmative defenses to sexual performance by a child: (1) the accused was the spouse of the child at the time of the offense; (2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or (3) the accused is not more than two years older than the child.

• Is the Texas law against sexual performance by a child constitutional? Yes. Texas courts have the sexual performance by a child statute is not a content-based restriction of speech, and is thus constitutional.In Ex parte Fujisaka, the defendant was charged with authorizing or inducing a child to engage in sexual conduct or a sexual performance, but argued the law violated the First Amendment. The appellate court rejected the defendant’s argument, holding any speech in an effort to employ, authorize, or induce a child to engage in sexual conduct or a sexual performance is part of an illegal transaction, and not protected by the First Amendment.

WHAT IS THE STATUTE OF LIMITATIONS FOR SEXUAL PERFORMANCE BY A CHILD IN TEXAS?

The limitation period for sexual performance by a child is 20 years from the child’s 18th birthday.

SEXUAL PERFORMANCE BY A CHILD IN TEXAS

Texas criminalizes sexual performance by a child, which is employing or inducing a child to participate in a sexual performance by engaging in sexual conduct, giving permission as a parent or guardian of the child to participate in a sexual performance, or producing or promoting a sexual performance by a child.

TEXAS SEXUAL PERFORMANCE BY A CHILD COURT CASES

The case law regarding sexual performance by a child in Texas illustrates the application of the statute and its defenses.

• In Parks v. State, the defendant bought a vibrator and gave it to his 14-year-old stepdaughter with the intention of helping her masturbate. He was convicted of attempted sexual performance by a child, and the appellate court affirmed.The evidence supported the jury’s conclusion that the defendant bought the vibrator with the intent to authorize or induce the victim to engage in sexual conduct, or masturbation. The jury rejected the defendant’s affirmative defense that it was for a bona fide medical or educational purpose, and determined instead that he was grooming the victim for sexual abuse.