Statutory rape laws in Texas are based on the idea that minors (under the age of 17) cannot consent to sex with an adult (18 or older). Even if no force is involved, and the act is consensual on both sides, the person 18 or over can be charged with statutory rape. The reason behind this is, in the eyes of the law, minors do not have the capacity to give consent to sexual acts with an adult.
There are some exceptions to statutory rape laws, which include consensual sex between minors who are close in age, or a minor who is married to an adult. We break the statutory rape law down so you have a better understanding of what is involved. While this is an overall guide, it is not definitive. Our experienced criminal defense attorneys can provide further information that is relevant to your case and explain the range of possibilities and outcomes.
What is the Age of Consent?
Generally, the age of consent in Texas is 17, which means an individual may legally consent to sexual activities with another person once they reach 17 years of age. Statutory rape and the age of consent is defined by two statutes in the Texas Penal Code:
- Section 22.011 of the Texas Penal Code defines the age of consent as anyone under the age of 17.
- Section 21.11 prohibits sexual conduct with a child younger than the age of 17
While the age of consent is 17, there are a couple of exceptions to the age of consent, which are important to know and may help your case.
Exceptions to the Age of Consent
The two biggest exceptions to the age of consent law in Texas are the Romeo and Juliet exception and the marriage exemption.
Romeo and Juliet Exception
The Texas Legislature enacted the “Romeo and Juliet” provision in child sexual assault cases to reduce or eliminate cases of alleged statutory rape. The exception is found in the statutory rape Texas Penal Code Section 22.021, which says a teenager cannot be prosecuted for statutory rape after having consensual sex with someone close to their age if:
- The defendant is less than three years older than the victim
- The victim was at least 14 years old when the sexual relationship began
- The defendant was not a registered sex offender
- The sexual act was consensual
For example, a 17-year old cannot be prosecuted for having consensual sex with a 14, 15, or 16 year old because they are within a three-year age gap. The same rule applies for an 18-year old who has consensual sex with a 15 or 16-year-old.
The Romeo and Juliet Exception is a defense to a sexual assault or statutory rape allegation in Texas. Talk with your criminal defense attorney to see if this applies to your case.
Marital Exemption
The marital exemption allows consensual sex between a married minor and their adult spouse. If an individual under the age of 17 is married to an older adult spouse, then the age of consent rule is waived and sexual assault charges should not be filed.
For example, if a 16-year old is married to a 21-year-old, then the 21-year old should not be charged with statutory rape. The marriage waives the age of consent and therefore allows for the 16-year old to consent to sexual acts with their adult spouse.
Mistake of Age
While mistake of age is not an exception to the age of consent, it is important to note here as it can be difficult to tell exactly how old a person is nowadays. Mistake of age means the defendant had no reason to know their partner was underage and that a reasonable person would have believed they were of the age of consent. Mistake of age is not a defense in Texas, so it cannot be relied on to avoid conviction. However, if a defendant reasonably believed the other person was over the age of consent, this may play a part in the case. Only your criminal defense attorney will be able to give you advice on your specific case.
Three Categories of Statutory Rape
In Texas, there are three categories of statutory rape, with aggravated sexual assault being the most serious. Each charge carries prison time and extensive fines.
Aggravated sexual assault
Section 22.021 — defines aggravated sexual assault as sexual penetration of or by a child under the age of 14 by a person of any age.
- First degree felony
- Punishable by a minimum of five years to a maximum of 99 years in prison
- Fines up to $10,000
Sexual assault
Section 22.011 — defines sexual assault as the sexual penetration of or by a child under the age of 14 by a person who is three or more years older than the victim.
- Second degree felony
- Punishable by a minimum of two years and maximum of 20 years in prison
- Fines up to $10,000
Indecency with a child
Section 22.11(a)(2) — defines indecency with a child as sexual contact with a child by a person who is three or more years older than the victim. Sexual contact means touching (other than penetration) either under or over the clothing that is meant to arouse or gratify sexual desire
- Second degree felony
- Punishable by a minimum of two years and maximum of 20 years in prison
- Fines $10,000
These charges are not something you want to defend on your own as they have lifelong consequences.
Penalties for Statutory Rape
Penalties for statutory rape depend on a variety of factors, such as previous offenses, age of the minor, and other circumstances particular to your case.
Sex Offender Registration
If a person is convicted of statutory rape, they have to register as a sex offender. This means years (or even decades) after the defendant has been released, the defendant must register periodically with authorities. Sex offender registration can severely limit aspects of the defendant’s life and can make it difficult to secure a job or find housing.
Castration
Some inmates, such as repeat offenders to serious sex crimes, are permitted to request physical castration in Texas. This does not have an impact on sentencing or lessening a punishment to statutory rape. The defendant and the attorney may not advise the sentencing judge of the defendant’s plan to be castrated. Before asking for this procedure, the defendant must be counseled and evaluated by doctors who then must conclude the decision is voluntary and informed.
An experienced criminal defense attorney can help you navigate the justice system to stay off the registry and inform you of your rights.
Affirmative Defenses
There are a few affirmative defenses and strategies that an experienced attorney from Cofer Luster Law Firm can help with that may reduce your charges or get them dismissed.
Medical
A defense to sexual assault charges under Texas Penal Code 22.011(d) states 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.” Basically, if the accused was performing a medical procedure when the alleged sexual assault or statutory rape occurred, then the defendant has an affirmative defense.
Evidence
The prosecution must prove beyond a reasonable doubt that a statutory rape occurred. This is a higher burden of proof, so the prosecution must remove any reasonable doubt from the mind of the jury that the defendant is guilty of statutory rape. If the jury has even a hint of reasonable doubt then the defendant must be acquitted of the charges.
Stress
The defense that the defendant committed the criminal act under duress or other stressful circumstances may play a part in reducing charges or getting the charges dropped completely.
What About Statute of Limitations?
Are there statutory rape Texas statute of limitations? In criminal cases that include aggravated sexual assault or indecency with a child, Texas does not have a statute of limitations. This means charges can come any number of years since the alleged crime was committed.
There are a few exceptions to this. For example, if an improper relationship between an educator and their student happens, then the statute of limitations is three years after the incident occurred. Aggravated kidnapping with intent to sexually abuse the victim has a statute of limitations of 20 years, if the investigation shows the victim was younger than 17 years of age at the time the offense is committed, then the statute of limitations is 20 years from the 18th birthday of the victim.
