The Texas Department of Public Safety reports that in a recent 12-month period, a total of 18,088 incidents of sexual assault were committed against 19,011 victims. Nationally, it is estimated that someone will become the victim of a sexual assault every two minutes.
With so much emphasis placed on protecting the victims of sex offenses, it is easy to forget that the nature of the crime lends itself to allegations supported only by the victim’s testimony. For someone accused of committing a sexual assault, defending against the charges can be a difficult task. That’s why it is so important to have a basic understanding of how the criminal laws, penalties and defenses work in the event you or a family member are ever accused of this kind of crime.
Definition of Sexual Assault
Section 22.011 of the Texas Penal Code describes in detail the different acts that can be considered forms of sexual assault. Simply put, the law tries to prevent and punish any intentional sexual contact in which penetration occurs without the consent of the victim.
Even in situations in which a victim willingly participates or does not resist, prosecutors can still win a conviction by showing threats of violence by the offender or proof that the victim was incapable of giving consent by reason of age or mental disease or defect.
No Consent According to Texas Penal Code
There are several instances where prosecutors can argue a victim did not consent to a sexual act. Some examples include:
- The offender used physical force or violence against the victim
- The offender threatened violence or force against the victim, who believed the offender was physically capable of carrying out the threat
- The offender knew the victim was unconscious or otherwise unable to resist
- The victim suffered from a mental disease or defect that prevented him or her from understanding the nature of the sexual act
- The victim was unaware that the sexual contact was taking place
- The offender intentionally impaired the victim’s ability to understand and control what was happening
- The offender threatened violence or force against someone other than the victim, who believed the offender was physically capable of carrying out the threat
- The offender is a public servant, such as a police officer, who used his or her position to force the victim to submit
- The offender is a mental health or health care provider who abused his or her position to force the victim to submit
- The offender is a clergyman who exploited the fact that the victim looks up to them or depends on them in order to get the person to submit to the sexual conduct
- The offender works at a facility where the victim resides, except in situations where the victim and employee are married to each other
Types of Sexual Assault Crimes in Texas
The law defines sexual assault in terms that include commonly recognized acts, such as rape, in which penetration is an element of the crime. It also offers a broad enough definition to include sexual contact crimes, such as touching another person in a sexual manner without penetration.
Examples of various crimes involving sexual assault in Texas include:
- Continuous Sexual Abuse: This comprises two or more acts of sexual abuse within a 30-day period involving a child, defined as a person less than 17 years of age. Acts of sexual abuse include sexual assault, indecency, aggravated sexual assault, sexual performance of a child, and prostitution or trafficking of persons.
- Sexual Harassment: Although sexual harassment is not listed as a separate crime in Texas, a sexual assault in the workplace may give rise to a civil claim for damages as sexual harassment.
- Rape: Commission of any of the acts listed in the sexual assault law without the consent of the victim would come under the generally accepted legal definition of rape, but Texas refers to it under the umbrella of sexual assault. Use of a weapon or the infliction of physical harm on the victim elevates the crime to aggravated sexual assault, which would be a rape in other states.
- Statutory Rape: Sexual assault committed against a victim under 17 years of age in Texas is the equivalent of statutory rape in other states. A person under the age of 17 is legally incapable of consenting to a sexual act under the state’s sexual assault law.
Aggravated Sexual Assault
A sexual assault crime may be charged under the more serious offense of aggravated sexual assault when one or more of the following acts have occurred:
- Any non-consensual penetration of the anus or sexual organ of another person
- Any non-consensual penetration of the mouth of another victim by the sexual organ of the offender
- Any non-consensual contact or penetration of the victim’s sexual organ with the mouth, anus or sexual organ of the offender
To obtain a conviction for aggravated sexual assault, prosecutors must also prove that the accused performed at least one of the following acts:
- Caused serious bodily injury to the victim or to another person
- Attempted to kill the victim or another person
- Caused the victim to fear that another person would be injured, killed or kidnapped
- Used or displayed a deadly weapon
- Acted in concert with another person
- Administered certain illegal drugs to the victim
- Engaged in the acts with a victim less than 14 years of age
- Engaged in the acts with an elderly or disabled victim
Difference Between Sexual Assaults and Sexual Offenses
Chapter 22 of the state penal code was created to prohibit and punish sexual conduct involving violence. The law was eventually updated to change rape from a crime that could only be committed by a male offender to one that is gender-neutral. As a result, a woman may now be charged with sexual assault, when she would previously have been charged with rape.
Chapter 21 of the penal code treats non-assaultive or non-violent sexual offenses, such as taking pictures of another person without consent for the purpose of the photographer’s sexual gratification, as sexual offenses.
Other sexual offenses include:
- An educator in a primary or secondary school having a sexual relationship with a student
- Indecency with a child by engaging in sexual contact with the child
- Indecent exposure in which an offender exposes the anus or genitals to another person, who will be offended or alarmed by such conduct
- Public lewdness in which an offender engages in sexual intercourse, sexual contact or similar conduct in a public place
The primary difference between sexual offenses and assaultive sexual conduct is the element of violence or force present in the assaultive crimes.
Penalties for Sexual Assault and Aggravated Sexual Assault
The state of Texas views sexual assault crimes so seriously that at one time, judges could sentence convicted offenders to death. Though capital punishment is no longer used for sexual assault cases, today’s laws are still harsh enough to punish convicted criminals and deter potential offenders.
The punishment that courts may impose depends upon the category of the sexual assault crime. Generally speaking, the offense and penalties are as follows:
- Sexual Assault Penalties: Usually a second degree felony punishable by a minimum of two years and maximum of 25 years in prison. Judges may impose a fine in addition to, or in place of, incarceration up to $10,000. If the victim is someone whom the offender was prohibited from marrying or living with under the guise of marriage, then the crime becomes a felony of the first degree. The punishment increases to five to 99 years in prison. The fine remains at the $10,000 maximum.
- Aggravated Sexual Assault: A first degree felony punishable by a prison sentence of 25 years if the victim is less than six years of age or if a deadly weapon is used, and the victim is less than 14 years of age. The enhanced penalties also apply if the child is under 14 and the offender seriously injured, attempted to kill or drugged the child while committing the crime.
Available Defenses in Sexual Assault Cases
People convicted of committing a sexual assault or aggravated sexual assault have a lot to lose. Between the penalties imposed by the courts and the public humiliation and scorn associated with these allegations, an aggressive defense is important in these cases. Some of the sex crime defenses recognized under Texas law include:
- Consent of the victim
- That the conduct was either unintentional or it was inadvertently committed without the knowledge of the offender
- The offending conduct was justified as being part of a medical treatment in cases involving children
- The offender was no more than three years older than the child in cases involving a victim 14 years of age or older, where consent is alleged as a defense and the parties would not have been prohibited from marrying by state law
It can be difficult to defend against sexual assault charges. For example, a statutory rape charge in which prosecutors prove that a person engaged in sexual relations with an underage victim does not lend itself to a consent defense. Under the law, an underage victim is not capable of consenting to sexual relations.
Brett Podolsky | Texas Sexual Assault Attorney
The sexual assault laws in Texas involve complex issues of law and evidence, and it is possible to be convicted based on allegations alone. This means that if you are facing criminal sexual assault charges, it is essential to consult with an attorney whose knowledge of the law and courtroom experience will compare favorably with the prosecution. Brett Podolsky understands how the stigma of a sex offense accusation can affect you and your family. For experience and unbiased representation, contact the Law Office Brett A. Podolsky at 713-227-0087.
Texas Department of Public Safety: The TXDPS reports on records of sex crimes. They can provide you with more data on sex crime incidents in Texas
Texas Penal Code: Texas laws can be confusing at times. If best way to avoid being prosecuted is to understand the penal code
Texas Department of Public Safety Sex Offender Registry: Learn about sex offenders living around you by searching the official database
Fingerprint Applicant Services of Texas: The TXDPS joined in this partnership to provide information on fingerprinting locations and requirements
Public Record Center Search: Discover public information regarding background searches and crime history