Texas Age of Consent and Statutory Rape Laws
Statutory rape is perhaps one of the most dreaded sex crimes on the books because, for many people, it occurs without their knowledge or even as part of a loving relationship.
Even still, sexual contact with a minor below the Texas age of consent is always a felony – whether it occurs in a loving, peaceful relationship or as a blurry one-night-stand.
However, it is still up to the state to prove that an unlawful relationship occurred. You must tread carefully, but you do have legal strategies available to defend yourself.
What is the age of consent, and why does it make such a difference in relationships? Keep reading to learn more about statutory rape, sexual assault, the penalties, and the possible defenses.
What Is Statutory Rape in Texas?
The Texas penal code doesn’t have a section called statutory rape. Instead, statutory rape falls under the broader umbrella of sexual assault and exists in three different categories:
- Sexual assault
- Aggravated sexual assault
- Indecency with a child
What are the differences between these three charges?
The Texas penal code refers to sexual assault as knowingly or intentionally engaging in a sex act (including oral sex) without the other person’s consent. In the case of statutory rape, the law says that it is sexual assault when you commit a sex act with a child under the age of 17 “regardless of whether the person knows the age of the child at the time of the offense.”
Aggravated Sexual Assault
Aggravated sexual assault applies when you knowingly or intentionally engage in a sex act with a child under 14 years “regardless of whether the person knows the age of the victim at the time of the offense.”
Indecency with a child
The third crime falls under chapter 22 of the Texas Penal code. Indecency with a child includes engaging in sexual contact with a child under 17 with the intent “to arouse or gratify the sexual desire of any person.” This can include exposing your genitals or anus to the child or causing the child to expose themselves to you.
In most cases, indecency takes place in person.
When someone exposes themselves or encourages a child under the age of 18 years to do so via photo and video, it often falls under another crime, including “promotion or unlawful disclosure of intimate visual materials” or “possession/promotion of child pornography” depending on who is in the pictures and who possesses them. Pictures can also fall under the category of “sexual performance by a child,” which includes “lewd exhibition” when the person depicted is a minor. The rules (including the age of consent) around these crimes are different from sexual assault and indecency with a child, and can often be contradictory.
What Is the Age of Consent in Texas?
The age of consent in Texas is currently 17 years old. Anyone 16 and under cannot legally consent to sexual activity of any kind no matter whether they say “yes” or even initiate the contact.
When a person reaches the legal age of consent, they can then give consent to participate in sexual activity with anyone they choose who is also able to consent legally.
What If You Didn’t Know the Victim’s Age?
Unfortunately, the law specifically states that it doesn’t matter if you knew or didn’t know the victim’s age. It is very important for someone who is 17 years or older to be cautious and not engage in prohibited sexual conduct.
It doesn’t even matter if they have a convincing fake ID and lied about their age. The law says that participating in sexual activity with someone aged 16 years or under still counts as statutory rape (if you are more than three years older than them).
Additionally, it is essential to keep in mind that age difference makes no difference in cases that involve coercion or force, sexual abuse, as well as the lack of statutory consent.
What Does the Prosecution Need to Prove to bring a criminal charge of Statutory Rape?
To prove that statutory rape occurred, the state needs to establish three facts:
- A sexual relationship occurred (intercourse or other non-penetrative sexual contact)
- The parties were not/are not married
- The complaining victim was below the age of consent at the time of the relationship
The state must prove all three beyond a reasonable doubt.
Although the case seems cut and dry initially, determining whether a sexual relationship occurred isn’t always easy for the state to prove. It either requires the complaining victim to admit to the relationship or other evidence or witnesses that confirm the unlawful relationship.
The state’s ability to find either can be difficult particularly when the complaining victim isn’t the one who initiated the complaint (i.e. if the case was brought by their parents or guardian).
What Are the Penalties for Statutory Rape in Texas?
All sexual assault cases in Texas are a second-degree felony. Under Texas law, a second-degree felony comes with a penalty of two to 20 years in prison. Second-degree felonies also include fines of up to $10,000.
Because aggravated sexual assault involves someone under 14, it is a first-degree felony. It carries a penalty of 5 to 99 years in prison. It also includes fines of up to $10,000.
Indecency with a child (exposing yourself or exposing their genitals) is a third-degree felony, which is punishable by two to ten years imprisonment and fines of up to $10,000.
Do Sex Offenders Need to Register?
If convicted of aggravated sexual assault, sexual assault, or indecency with a child, you may also need to register as a sex offender. Whether or not you must register if convicted depends on your charges, the severity of the crime, and the sentence.
A Guide to Defenses for Statutory Rape in Texas
If you are charged with sexual assault, aggravated sexual assault, or indecency with a child and the crime pertains to statutory rape, you must choose your defense very carefully.
Outside of arguing that there is no proof of the relationship or that the defendant is falsely accused, the only two named defenses in Texas law are the Romeo and Juliet and marriage exceptions.
In other words, the law says doesn’t matter if:
- You didn’t know their age
- The minor lied about their age
- You are in a committed relationship and love each other
- You made sure they provided enthusiastic consent before every sexual encounter
These are not valid defenses. Why? Because the law says that you cannot, under any circumstances, have sexual contact with someone who the law prevents from giving consent bar the two exceptions.
The Romeo and Juliet Law
Not all instances of a person over 18 engaging in sexual activity with someone 16 or under fall under statutory rape.
Texas provides a “Romeo and Juliet” law to cover situations where someone between ages 14 and 16 can give consent. However, they can only consent to someone who is within three years of their own age.
A couple who are 20 and 17 can lawfully engage in sexual activity without fear of statutory rape because a 17-year-old can consent, and their ages are close.
However, once the three-year age gap widens, it doesn’t matter if there’s a difference of a year. A 22-year-old and a 16-year-old are just as illegal as a 44-year-old and a 16-year-old.
It is also important to note that the Romeo and Juliet law only governs statutory consent issues.
It doesn’t mean that a 20-year-old can’t sexually assault a 17-year-old, even if the 17-year-old can consent to sex by definition of the law. The Romeo and Juliet law only means that sexual activity between them isn’t illegal by default.
Keep in mind that there’s also a lower age limit of 14. There is no scenario in which someone over 17 can engage with sexual activity with minors under 14. It’s always a crime – aggravated sexual assault – and it doesn’t matter if you knew the child’s age at the time of the offense.
What If Only a Few Months Make Romeo and Juliet Invalid?
An 18-year old and a 15-year-old can lawfully engage in sexual activity, but a 19-year-old and 15-year-old cannot.
Even a slight difference in age is meaningful for the law. A single year means the 19-year-old committed statutory rape; they are guilty of the same crime as they would be if they were 20 years older and all else was the same.
What If the Minor Is My Spouse?
Texas has the second-highest rate of underage marriage (child marriage) in the nation. It is natural to wonder if marriage is an exception to the statutory rape and consent laws.
Marriage is a common and valid defense against statutory rape. A person over 17 married to someone under 17 can engage in sexual activity without it becoming statutory rape. However, this is only true as long as they are legally married. Additionally, this does not eliminate the potential for marital rape. Marital rape is a crime regardless of the age of the victim and the alleged perpetrator.
At the same time, the cover of marriage for statutory rape is coming to an end – at least for future occurrences.
In 2017, Texas banned marriage among anyone under 16. Anyone who attempts to marry someone who is 16 or 17 after September 1, 2017, needs judicial consent to do. So, if a teenager marries someone more than three years older than them, there should always be less than a year before they are legally able to provide consent to sexual activity anyway.
As a result, marriage is a less likely cover to today’s cases. Couples in which one party is under 16 aren’t going to get judicial consent for a legal marriage, even if their parents sign off on the relationship. By the time a 16-year-old gets married, there are only a few months left before they can legally consent anyway.
Again, neither Romeo and Juliet nor marriage are cover for violent or coercive sexual encounters. Sexual assault is still possible within these relationships, and it can be prosecuted even if the relationship itself is legal. In cases of forced or coerced sexual assault, you need a different defense entirely.
Charged with Statutory Rape: What to Do Next
If you find yourself arrested for or questioned in relation to statutory rape, then you need to take action immediately. Don’t wait until the state brings charges.
First, you need to end contact with the complaining victim and all witnesses. It doesn’t matter whether you are in a consensual relationship, if you are friends, or if you are barely acquaintances. You should not contact them – or anyone related to them (friends or family) – again, until your lawyer tells you it’s possible.
Staying apart can be very difficult for couples who fall outside the Romeo and Juliet exclusion, but it is critical for the accused. Everything you say to the complaining witness can be used against you, including both admissions to sexual contact and denials of it.
For example, if a complaining victim’s parents call the police, but the parents don’t have proof of sexual activity, they can get evidence from the victim’s texts or messages. Even saying, “we didn’t do anything wrong” can be weaponized as an admission of guilt.
Second, you should not speak to anyone without a criminal defense attorney, including the police. You should not make any statements to the police at all – even informally. As soon as the police make contact, you need to exercise your right to ask for representation.
Finally, you should not discuss your case with anyone, whether or not there are charges. Do not discuss it with your friends and certainly do not speak out in a public place, like social media. Even though it is very tempting to clear your name or issue a denial of these damaging accusations, resist the urge. Unfortunately, statements made without a lawyer often come back to haunt you.
Your best option is to say nothing and let your lawyer and the justice system speak for you. If you didn’t do anything wrong and the state has no evidence, then you don’t have anything to say publicly.
You Can Defend Against Statutory Rape Charges
There’s a reason that so many people fear statutory rape. You can commit it without realizing what you did, and the state built that notion into the law.
Fortunately, the state still has to prove their case, and proving the existence of an inappropriate sexual relationship can be tricky, particularly if the case has a ‘he-said-she-said’ element. Even still, your defense also needs to be perfect, and you need to be careful of your movements both before and after being charged.
If you are arrested for or charged with sexual assault, you need a lawyer immediately. You shouldn’t speak to the police, prosecutors, the victim, or anyone else without first consulting an experienced criminal defense attorney.
Are you facing charges in Texas based on your relationship with a minor? Or were you falsely accused of sexual assault? Call Blass Law at 832-430-7739 (available 24/7) for a free case evaluation.