Sexual crimes against children are some of the most serious charges in Texas law, carrying stiff penalties and numerous consequences like sex offender registration. Understandably, police and prosecutors in Collin County and throughout the Dallas-Ft. Worth area vigorously investigate and prosecute sexual offenses against children using all of the vast resources of the State of Texas. However, in their effort to protect children and bring guilty perpetrators to justice, police and prosecutors sometimes overreach and innocent men and women find themselves in the crosshairs.
If you or a loved one is under investigation or indictment for a sexual crime against a child, you should know the law guarantees the accused certain constitutional and statutory rights. Knowing these rights, and how to properly invoke them in court, is key to maximizing the likelihood of a favorable outcome. You should rely on an aggressive criminal defense attorney with experience handling accusations of crimes against children. Having an attorney on your side who knows and understands the nuances of the law and how it applies to sexual crimes against children can make all the difference.
Sexual assault of a child is a second-degree felony. A person convicted of sexual assault of a child faces a minimum of 2 years and up to a maximum of 20 years in prison and an optional fine of up to $10,000.00 may be assessed. The Texas legislature defines sexual assault of a child as follows:
- Texas Penal Code Section 22.011. Sexual Assault of a Child
- (a) A person commits an offense if:
- (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.
- (c) In this section:
- (1) “Child” means a person younger than 17 years of age.
What are some big takeaways from the statute? First, you’ll notice that it doesn’t matter if the accused honestly believed the child was 17 years of age or older. What if the child lied about his/her age to the accused? The law says it doesn’t matter. What if the child had a fake ID that looked real? The law says it doesn’t matter. What if the child initiated the sexual activity and wanted to engage in it? The law says it doesn’t matter. Why is Texas law this way? Because no matter what they say or do, children younger than 17 years of age are by legal definition incapable of consenting to sexual conduct.
But keep in mind, if these or similar circumstances exist, a grand jury can consider them in deciding whether or not to indict the accused for the charge of sexual assault of a child. And, the court and/or jury can take these types of factors into consideration when evaluating the credibility of the child’s testimony, and, if the accused is found guilty, in deciding an appropriate sentence. Bottom line: while extenuating factors might not be technical legal defenses to the charge of sexual assault of a child or other sex crimes against children, they can still play an important role in the defense of such charges.
The sexual assault of a child statute contains an important exception, often called the “Romeo and Juliet” defense. The “Romeo and Juliet” provision in the law provides an affirmative defense to prosecution if the accused was not more than three years older than the child at the time of the offense, and the child must have been at least 14 years old. See Tex. Penal Code of 22.01 4(e)(a) and (B)(i).
How do you know if the “Romeo and Juliet” defense applies? The child must have been at least 14 years of age at the time of the sexual conduct, and the accused must not have been more than 3 years older than the child. If those factors exist, then the law provides a defense to prosecution for sex offenses involving children. This is usually seen in a high-school setting when for example a senior dates a freshman; but it applies in other situations as well.
Another important part of the sexual assault of a child statue is its use of the phrase, “causes the penetration of the anus or sexual organ or mouth” of the child. Dictionary.com defines “penetration” as, “to pierce or pass into or through.” But do Texas courts use the same definition? Short answer: No.
Texas courts have held that evidence of “any degree of penetration” or “the slightest penetration of the body” is sufficient to prove that penetration happened. This is a point often contested at trial. If the jury believes that contact occurred, but not penetration, then the accused might be acquitted of the charge all together or found guilty of a less serious charge.
Sexual assault of a child charges, like other sexual offenses against children including indecency with a child or continuous sexual abuse of a child, often come down to the credibility of the child accuser. This makes cross-examination of the child accuser of paramount importance. Knowing which questions to ask, and which questions not to ask, can be the difference between winning and losing.
In order to maximize the likelihood of a favorable outcome in an alleged sex crime against a child, the defense must be fully prepared to vigorously cross-examine the child accuser. Relying on the advice, experience, and knowledge of a seasoned, aggressive criminal defense trial attorney, like Keith Gore, is essential to combating accusations of sexual crimes in Collin County and throughout the Dallas-Ft. Worth metroplex.
