In Texas and every other state in the nation, sexual assault is a serious crime, and the element of consent plays a primary role. Better understanding the interplay between consent and sexual assault charges can help you better understand the charge of sexual assault and the consequences of a conviction. If you are facing a charge of sexual assault – or any other criminal charge in the State of Texas – you need the professional legal counsel of an experienced Killeen criminal defense attorney in your corner.
The Charge of Sexual Assault
The charge of sexual assault in Texas refers to intentionally or knowingly penetrating or touching another person in a sexual manner without that person’s consent (or causing another person to do the same). The consent of the other person, in other words, is elemental to the charge. Without consent, any sexual act can lead to sexual assault charges. The matter of consent, however, is often far more complicated and less cut-and-dried than you may think, and it does not always come down to a simple yes or no response from the other person involved.
Sexual Assault: The Statistics
In response to growing concerns across Texas regarding sexual assault, the state has compiled exhaustive data regarding the charge. The following statistics apply:
In 2017, there were 18,112 reported incidents of sexual assault throughout the state.
This number includes a decrease in the total number of incidents by 7.3 percent, a decrease in the total number of victims by 1.3 percent, and an increase in the total number of offenders by 5.0 percent (over 2016).
Victims of sexual assault in 2017 were primarily female, and offenders were primarily male.
The Age of Consent
In order to consent to engage in sexual activity, the person doing the consenting must have reached what is known as the age of consent, and in Texas, this is defined as 17 years old (in most instances). This means that, barring extenuating circumstances, anyone who is at least 17 years old can – if he or she so chooses – consent to having sex with anyone else who is also at least 17 years old.
Romeo and Juliet Laws
The law makes allowance for young people who are fairly close in age who engage in consensual sex, and these exceptions are often referred to as Romeo and Juliet laws. As such, in the State of Texas, when a couple is within three years of one another age-wise and when the younger of the two is at least 14 years old, sexual assault charges will not be levied as long as both teens consented to the sexual encounter in question. Sexual activity with a child who is under the age of 14, however, is always illegal.
When Federal Laws Apply
The federal age of consent is 18, and in certain instances, federal law has jurisdiction. For example, if either party crosses state lines to engage in the sexual encounter in question, federal laws apply, and this means that anyone under the age of 18 is below the age of consent. Any sexual activity that is driven by online communication – regardless of whether or not the participants are both in Texas – is also governed by federal law. Electronically exchanging lewd pictures and/or videos or engaging in electronic communications that are sexually based both suffice to make the matter federal.
It is important to note that regardless of whether or not the person accused of sexually assaulting a child who is too young to provide consent knew the child’s actual age is immaterial. This means that the accused’s take on the child’s age has no bearing on the charge even if one of the following applies:
The child in question credibly lied about his or her age.
The other party reasonably believed that the child was old enough to consent.
If a child is too young to consent, the charge of sexual assault applies.
The law addresses the matter of consent carefully, and there are specific situations in which consent is always off the table.
If the consent given is obtained by use of physical force, violence, or coercion, it does not qualify as consent in the eyes of the law. Physically forcing someone to consent to sexual activity is tantamount to forcing someone to engage in sexual activity against their will and is, therefore, against the law. Coercion here means persuading the other person to do something he or she would not otherwise do via the use of threats, taunts, or any other means.
Threats of Physical Force
Threatening to engage in physical force or violence in order to elicit consent to sex carries the same legal weight as actually engaging in physical force or violence, and it negates the other person’s consent (if the threats are credible and he or she realistically fears they will be carried out). Further, if the victim reasonably fears that he or she may be killed during the assault, the associated charge can be bumped to aggravated assault, which can carry a sentence of up to life behind bars. Finally, invoking threats against someone other than the complainant – even if the other person is not present – as a means of garnering consent – amounts to coercion and is similarly illegal.
If the Other Person Is Unconscious
In Texas, it is illegal to engage in sexual activity with someone who is unconscious – regardless of the circumstances. The person who is accused of sexual assault of someone who was unconscious at the time does not have to be responsible for rendering him or her unconscious in order for sexual assault charges to apply. If someone passes out from drinking too much (of his or her own accord), he or she is not capable of consenting to sex, which makes any sexual contact with him or her sexual assault. The same applies if the person is sleeping. While people understand that using date rape drugs in order to bypass the matter of consent is illegal, many fail to understand that having sex with someone who is impaired to the point of being unable to provide meaningful consent (as a result of his or her own actions) is also illegal.
If the person providing consent has what the law calls a mental disease or defect that is known to the accused and that affects the victim’s ability to provide consent – or to understand and/or resist the sexual act in question – there is no consent.
In a Position of Power
If the person accused of sexual assault is in a specific position of power over the other person, it can alter the element of consent and can lead to sexual assault charges.
Mental Health Professionals
When a mental health professional exploits a current or former patient’s emotional dependency upon him or her to obtain consent to sex, said consent is not valid, and the mental health professional may face sexual assault charges.
Residential Facility Employee
A resident in a residential facility cannot legally consent to sexual activity with an employee of the facility unless the two are married.
Teachers at all levels, including high school, are barred from engaging in sexual activity with students of any age (even those who have reached the legal age of consent) under any circumstance.
When a public servant uses his or her position of power in the community to facilitate consent from someone who is under his or her authority, sexual assault charges can apply.
Medical professionals who perform reproductive assistance procedures without consent engage in what the law terms assisted reproduction sexual assault.
There is some confusion regarding whether or not the same laws apply to spouses. The fact is that there is no legal distinction. Without consent – regardless of whom the other person is – a charge of sexual assault can apply. In other words, spouses have the same legal rights as anyone else does.
Sexual Assault Charges
Sexual assault charges often begin with the complainant going to the police and alleging sexual assault. Generally, this call or visit takes place soon after the incident in question – but the outcry (as it is called) can be delayed for days, weeks, months, or even longer. When the person making the accusation does so soon after the incident in question, he or she is generally encouraged to obtain a sexual assault exam from a medical professional who is trained to perform them (typically at a hospital). During this exam, all bruising, tearing, and other signs of violence are recorded, and DNA samples are gathered. Further, the examiner will take an in-depth statement regarding the complaint.
If Accused of Sexual Assault
If you are accused of sexual assault, the investigator in your case will very likely request an interview. While you have the right to remain silent, there are instances in which making a statement is to your advantage. You should not, however, do so without your dedicated criminal defense attorney present. Even if you think the sexual assault charge is simply a matter of your word against your accusers, the only way to effectively protect your rights and to help ensure that your freedoms aren’t restricted is by reaching out to a seasoned criminal defense attorney from the outset.
Sexual Assault and Related Charges
Most instances of alleged sexual assault against an adult are charged as either sexual assault or aggravated sexual assault. Sexual assault is any kind of sexual penetration or contact without consent, while aggravated sexual assault involves the additional element of any one of the following:
Severe bodily injury
A credible threat of severe bodily injury
The use or exhibition of a deadly weapon
The use of a substance that is intended to impair the victim, such as alcohol or a date rape drug
The Range of Punishments
If you are charged with sexual assault, you have the legal right to choose between a judge or a jury hearing your case and sentencing you (if convicted). This is a decision that your criminal defense attorney will help you make – in accordance with the specifics of your case.
If convicted, you may be eligible for probation or another form of a noncustodial sentence, but the legal parameters vary. Consider the following:
A defendant can be offered probation only if he or she has no prior convictions (in any state).
If the jury sentences a defendant to no more than ten years in prison, the sentence can be probated on the condition that the defendant complies with every condition of the community supervision.
When a judge does the sentencing, he or she may not sentence probation for a sexual assault conviction. However, judges have another option available to them. When a defendant enters a guilty plea, the judge can – if the defendant has no prior form of probation on his or her record – defer a guilty finding and put the defendant on community supervision, which typically lasts ten years. Upon successful completion of this term, the defendant receives no final conviction for the sexual assault charge, but inclusion on the sex offender registry is required.
The following sentencing ranges apply for sexual assault convictions:
For an indecent assault conviction, the defendant faces up to one year in jail.
For a sexual assault conviction, the defendant faces from 2 to 20 years in prison.
For an aggravated assault conviction, the defendant faces from 5 to 99 years in prison.
Consult with an Experienced Killeen Criminal Defense Attorney Today
If you are facing a sexual assault charge, Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a formidable criminal defense attorney with a wealth of experience successfully defending the legal rights of clients like you – in pursuit of advantageous case outcomes. To learn more about how we can also help you, please do not delay contacting us online or calling us at 254-501-4040 today.