What is indecency with a child? How long can you go to prison for Indecency with a Child? Like any criminal offense, the penalty or punishment depends on several factors. A sentence may be harsher or more lenient depending on: (1) the criminal history of the person convicted; (2) the age of the victim; and (3) the specific facts of the case. The possible punishment for indecency with a child under Texas law ranges from probation to life in prison. Below we break down the length of possible prison sentences. For a discussion of Probation or Deferred Adjudication read “Probation for Indecency.”
No Criminal History
If a person has no prior criminal history, then:
- A 3rd Degree Felony (“Exposure”) is punishable by a minimum of two years and up to 10 years in prison, and up to a $10,000 fine. (Texas Penal Code Section 12.33); and
- A 2nd Degree Felony (“Sexual Contact”) is punishable by a minimum of two years and up to 20 years in prison, and a $10,000 fine. (Texas Penal Code Section 12.34).
Prior Non-Sex Crime Felony Convictions
Under Texas law, the penalty for Indecency with a child may be increased based on a person’s criminal history. A person that has their sentence increased because of prior felony convictions is called a “Repeat” or “Habitual” felony offender.
In this section:
“Felony” means a First, Second, or Third Degree felony and NOT a State Jail Felony punished under Section 12.35 of the Penal Code (a regular SJF).
“Felony” does not include sexual offenses.
- If a person is convicted of Indecency by Exposure (Third-Degree), and the State proves at the person’s trial (or sentencing) that he has previously been finally convicted of a felony, then the punishment is increased to a Second Degree (2-20 years prison).
- If a person is convicted of Indecency by Contact (Fondling), and the State proves at the person’s trial (or sentencing) that he has previously been finally convicted of a felony, then the punishment is increased to a First Degree (5-99 years or Life in prison).
If a person is convicted of either Indecency by Exposure (Third-Degree) or Contact (Second-Degree), and the State proves at the person’s trial (or sentencing) that he has previously been finally convicted of two prior felonies (and the second previous felony conviction is for an offense that occurred after to the first previous conviction having become final), then the punishment is increased to term of imprisonment of a minimum of 25 years and up to 99 years or Life.
Juvenile Cases Used to Enhance Punishment
Certain juvenile convictions (“adjudications”) are considered felony convictions for enhancing a prison sentence for Indecency with a Child. If a person was adjudicated delinquent of a felony in juvenile court on or after January 1, 1996, and the person was sent to Texas Juvenile Justice Department (formerly Texas Youth Commission). A conviction after a person was certified as an adult can also be used.
Prior Sex-Crime Felony – Mandatory Life Sentence
If a person is convicted of Indecency with a Child by Sexual Contact (Texas Penal Code Section 21.11(a)(1)), then the person will be sentence to Life in prison if the person has a prior conviction for:
- Sexual Performance by A Child (Tex. Pen. Code § 43.25);
- Employment Harmful to Children (Tex. Pen. Code § 43.251);
- Continuous Sexual Abuse of Young Child or Children (Tex. Pen. Code § 21.02);
- Indecency with A Child (Tex. Pen. Code § 21.11);
- Sexual Assault (Tex. Pen. Code § 22.011);
- Aggravated Sexual Assault (Tex. Pen. Code § 22.021);
- Prohibited Sexual Conduct (Tex. Pen. Code § 25.02);
- Certain Obscenity convictions [See Note 1] (Tex. Pen. Code § 43.23);
- Certain Trafficking of a Person convictions [See Note 2](Tex. Pen. Code § 20A.02);
- Aggravated Kidnapping if the defendant committed the offense with the intent to violate or abuse the victim sexually (Tex. Pen. Code § 20.04);
- Certain Burglary convictions [See Note 3](Tex. Pen. Code §30.02)
For the purposes of increasing the penalty to Mandatory Life in prison, a conviction includes any prior case where a person entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication. It does not matter if the person was ever actually adjudicated “guilty” or sentenced to prison. It does not matter is the person successfully completed probation and was subsequently discharged from community supervision.
Out of state convictions count, too. For the purposes of imposing Mandatory Life, the State can use a prior conviction under the laws of another state for a crime containing elements that are substantially similar to the elements of any offense listed above.
NOTE 1: Certain Obscenity Convictions
For purposes of Mandatory Life, an Obscenity conviction can be used if the prior conviction was based on material depicting:
- activities patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
- patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs;
AND the material depicts the obscene activity engaged in by:
- a child younger than 18 years of age at the time the image of the child was made;
- an image that to a reasonable person would be virtually indistinguishable from the image of a child younger than 18 years of age; or
- an image created, adapted, or modified to be the image of an identifiable child.
NOTE 2: Certain Trafficking Convictions
For purposes of Mandatory Life, a conviction can be used if it is based on trafficking of a child for the purpose of making the child a victim of: Continuous Sexual Abuse of Young Child or Children; Indecency with a Child; Sexual Assault; Aggravated Sexual Assault; Prostitution; Promotion of Prostitution; Online Promotion of Prostitution; Aggravated Promotion of Prostitution; Aggravated Online Promotion of Prostitution; Compelling Prostitution; Sexual Performance by a Child; Employment Harmful to Children; or Possession or Promotion of Child Pornography.
The conviction for Trafficking can also be used if the person was convicted of receiving a benefit from participating in a venture that involves an activity described above, or engaging in sexual conduct with a child trafficked.
Getting the Lowest Sentence
A person is only sentenced to prison if they are convicted. Someone may be convicted after a trial or as the result of a plea of “Guilty.”
If someone is convicted at trial, then the judge or jury decides the punishment. The defense needs to be ready to present a compelling case for leniency. This may include character witnesses, such as family, friends, and employers. Usually, a psycho-sexual evaluation should have been done by the defense team in advance of trial, and this may employ a penile plethysmograph. Expert testimony about these results may be critical to getting the lowest possible sentence. Essentially, the “punishment case” after trial is only limited by the criminal defense attorney’s imagination and willingness to work.
A case may have overwhelming evidence of guilt, and contesting guilt at trial may not be the best strategic choice. This means, instead of a trial on Guilt-Innocence a person decides to:
- Plead Guilty in exchange for a Plea Agreement;
- Plead Guilty and have a Judge decide the sentence; or
- Plead Guilty and have a Jury decide the sentence.
In any of these scenarios, there is a lot of work to be done to get the lowest possible sentence in cases of indecency with a child. Regardless of who the decision maker is (prosecutor, judge, or jury), a person’s story needs to be told in a way that humanizes and connects. A skilled criminal defense team can make all the difference.