Sexual assault has been in the news recently. The recent arrests and prosecutions of powerful celebrities signals a shift in society’s attitudes towards sexual assault.

However, sexual assault in Texas is fairly complicated and warrants close attention so that those accused know what the state must prove to convict them.

If you need help with a Texas sexual assault case, you should contact an experienced criminal defense lawyer today.

Sexual Assault of an Adult (Texas Sexual Assault Penal Code 22.011)

The main sexual assault statute is in 22.011(a) and defines sexual assault as:

• With intent or knowledge, penetrating the anus or sexual organ without the person’s consent
• With intent or knowledge, penetrating the mouth by a sexual organ without the person’s consent
• Causing without consent another person’s sexual organ to contact or penetrate the anus, mouth, or sexual organ of another person with intent or knowledge

The key in each of these definitions is “consent.”

Generally, a person can consent if they are over the age of 17.

Consent will depend on the circumstances and does not require any “affirmative consent,” such as speech. Instead, the law defines when the act is without consent and provides 11 different examples, such as:

• Using force, violence, or coercion to compel another person to participate
• Using threats against the person
• Knowing the person is unconscious or unable to resist
• Intentionally impairing a person’s ability to understand what is going on, such as by giving them a date rape drug

Sexual Assault of a Child (Texas Sexual Assault Penal Code 22.011)

The law on sexual assault of a child in Texas closely mirrors the definition of sexual assault of an adult.

Under Texas law, a child is anyone under the age of 17. A key element of the law is that the perpetrator does not need to know how old the child is to commit sexual assault against a child. Instead, the law defines sexual assault as knowingly or intentionally:

• Penetrating of the sexual organ or anus of a child by any means
• Causing the penetration of a child’s mouth by a sexual organ
• Somehow causing a child’s sexual organ to make contact with or penetrate the anus, mouth, or sexual organ of another person
• Causing a child’s anus to make contact with the anus, mouth, or sexual organ of another person
• Causing a child’s mouth to make contact with sexual organ or anus of another person.

An exception exists if the person is giving medical care. A defense also exists if the defendant is married to the child.

Technically, the law would criminalize sexual contact between two teens. However, the law creates an exception when the children are close in age. In particular, the youngest child must be at least 14 years old and the other person must not be more than three years older. The older partner also cannot be a registered sex offender.

Aggravated Sexual Assault (Texas Sexual Assault Penal Code 22.021)

Aggravated sexual assault is a particularly serious form of sexual assault in the Texas penal code.

A sexual assault can be “aggravated” if:

• Defendant causes serious bodily injury or tries to kill the victim or someone else in the course of the crime
• Defendant creates a fear by words or actions that the victim could suffer death or serious bodily injury
• Perpetrator uses or shows a deadly weapon during the criminal episode (such as a gun)
• The victim is under age 14
• The victim has disabilities
• Victim is an elderly person aged 65 or older

Punishments for Sexual Assault in Texas

A defendant convicted of sexual assault under Texas Penal Code 22.011 commits a second-degree felony.

Texas sexual assault punishment includes a fine of up to $10,000 and/or 2-20 years in prison. If the victim was someone the perpetrator cannot, by law, marry, then the crime is a first-degree felony, which carries a fine of up to $10,000 and a prison sentence ranging from 5-99 years.

The punishment for aggravated sexual assault is stiffer. Generally, aggravated assault is a first-degree felony and carries the punishments mentioned above. However, the minimum prison sentence is 25 years in the following situations:

• The victim is younger than 6 years old
• The victim is younger than 14 and the perpetrator caused serious bodily injury, brandished or used a deadly weapon, or used drugs to commit the rape

Defenses to Sexual Assault in Texas

There are numerous defenses a defendant can raise.

The proper defense will depend on the circumstance, so you should meet with an attorney to review the allegations against you. However, based on the law, you might claim the following:

• Lack of intent. Since the law requires an intentional or knowing contact, accidentally touching or penetration will not satisfy the law. Generally, this is a weak defense unless you had a legitimate reason for being close to a person in a state of undress. For example, a teacher helping a child who has soiled himself might accidentally commit sexual assault.
• Consent. The state has the burden of proof on this issue, which means they need to establish beyond a reasonable doubt that you did not have consent. Many sexual assault cases are “he said, she said” situations where the evidence is muddled. Remember that consent is not an element of the crime of sexual assault of a child in Texas, since children cannot consent.

In an aggravated sexual assault case, you can sometimes disprove the aggravating element—such as the use of a firearm—although you might not be able to defeat the underlying sexual assault charge. This could reduce your punishment though you will not get off scot-free.

Questions? Speak with a Criminal Defense Attorney in Texas

If you have more questions about sexual assault laws in Texas, our attorneys have extensive experience in this area of law.

Sexual assault cases can be won or lost in the days after charges are filed. In particular, suspects should be careful about what they say, since the state can use any of their statements against them.

At the Tidwell Law Firm, PLLC, our criminal defense attorneys are prepared to go the extra mile to defend your reputation and fight for your freedom. Although some firms shy away from these cases, we provide an aggressive defense for all our clients.

To schedule your free case review, please contact us as soon as possible.