By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Texas Supreme Court recently held that a child under the age of fourteen could not be found guilty of a Class B misdemeanor offense of prostitution. This case began when a 13-year-old identified by the court as B.W. waved over a Houston undercover police officer driving an unmarked vehicle and offered to perform oral sex on him for $20. The officer agreed, and as soon as the teenager got in the officer’s vehicle, he arrested her for prostitution. The case was originally brought in the criminal district court, but as soon as the District Attorney’s Office learned the girl was only thirteen, the criminal complaint was dismissed and charges were re-filed under Articles 51.02(2) and .04(a) of the Texas Family Code.


Normally, Article 8.07 of the Texas Penal Code prohibits criminal prosecutions committed by those under 15.  However, in crafting the juvenile justice system the Texas Legislature made a blanket adoption of the state’s Penal Code into its Family Code, which provides family/civil courts have jurisdiction in all cases involving juveniles between the ages of ten and seventeen. Article 51.03(a) (1) of the Family Code defines “delinquent conduct” as “conduct, other than traffic offenses, that violates a penal law of this state or the United States punishable by imprisonment or by confinement in jail.” The legislative purpose for giving civil courts jurisdiction over children under the Family Code was explicitly stated in Article 51.01(3) which is to “provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions.”


In Texas, children under the age of seventeen are legally unable to consent to sex with an adult.  Under Section 22.011 of the Penal Code, consensual sex between an adult and a person under 17 is defined as statutory rape.  It is a defense if the actor is not more than three years older than the child.  Sexual contact between an adult and a child under 14 is aggravated sexual assault, irrespective of consent.  Thus, a child under 14 can never, under any circumstances, consent to sex with an adult.  And this is where things turned flaky in B.W.’s case. The juvenile’s lawyers would argue that at age 13, if she could not legally consent to sex, she could not legally agree to consent to sex for a fee.


The Court summed up the issue this way: “In this case we must decide whether the Legislature, by its wholesale incorporation of Penal Code offenses into the juvenile justice provisions of the Family Code, intended to permit prosecution of a thirteen-year-old child for prostitution considering its specific pronouncement that a child under fourteen is legally incapable of consenting to sex with an adult.”


At her juvenile trial B.W. pled “true” to the specific allegation that she had knowingly agreed to engage in sexual conduct for a fee. The trial court then found B.W. had in fact engaged in “delinquent conduct” constituting a Class B misdemeanor offense for prostitution as defined by Section 43.02 of the Penal Code. Although the trial court placed her on probation, it expressed serious reservations about what the Supreme Court called the teenager’s “untreated substance abuse and her report that she had been living, and having sex, with her thirty-two-year-old ‘boyfriend’ for the last year and a half.”


By any measure, B.W. had a troubled young life. A state psychologist found the teenager was “emotionally impoverished, discouraged and dependent.” Her probation report showed she had been found delinquent “for Assault Causing Bodily Injury” and “Possession of a Controlled Substance.” She also pulled a knife on a school principal and threatened to kill him, and she had seriously assaulted a fellow resident at a group home. She then ran away from the foster care group home where she had been placed by Child Protective Services. It was this disturbing background that prompted the trial court to place her on probation with strict conditions requiring counseling and treatment to be provided by the Harris County Juvenile Probation Department. The Supreme Court’s decision effectively vacated the trial court’s treatment efforts and prohibits juvenile courts from ordering probation, confinement, counseling or any other rehabilitation under the Juvenile Justice Code for minors under the age of fourteen who commit sex crimes.


There is no doubt that had B.W. been an adult her actions would have violated the state’s prostitution statute. The question is whether, being 13, she had the mental and emotional capacity to consent to her conduct. Section 6.03(b) of the Penal Code provides that a “person acts knowingly, or with knowledge, with respect to the nature of his conduct … when he is aware of the nature of his conduct.” In her appeal to the Supreme Court, B.W.’s attorney argued that the Legislature could not have intended to apply the prostitution statute to children under age fourteen because under Section 22.011 of the Penal Code they cannot legally consent to sex.


In B.W.’s case, the Supreme Court agreed, saying: “ … the Legislature has expressed both the extreme importance of protecting children from sexual exploitation, and the awareness that children are more vulnerable to exploitation by others even in the absence of explicit threats or fraud … It is difficult to reconcile the Legislature’s recognition of the special vulnerability of children, and its passage of laws for their protection, with an intent to find that children under fourteen understand the nature and consequences of their conduct when they agree to commit a sex act for money, or to consider children quasi-criminal offenders guilty of act that necessarily involves their own exploitation … Given the longstanding rule that children under fourteen lack the capacity to understand the significance of agreeing to sex, it is difficult to see how a child’s agreement could reach the ‘knowingly’ standard the [prostitution] statute requires. Because a thirteen-year-old child cannot consent to sex as a matter of law, we conclude B.W. cannot be prosecuted as a prostitute …”


The Court’s majority opinion produced a sharp dissent which had this to say: “The misguided result of the Court’s attempt to help has turned the juvenile justice system’s rehabilitative objective on its head. The Court sends B.W. back to CPS and the temporary placement that has already proven, in her case, inadequate to treat her. The Court also infringes prosecutorial discretion in which district attorneys exercise judgment in deciding whether to bring teenage offenders to the juvenile justice system for treatment or to decline those proceedings in favor of other options such as CPS. Announcing this change in state policy, the Court forgets that ‘in democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people,’ The Legislature established the juvenile justice system for those types of circumstances and has not indicated an intent to depart from that system when a minor is thirteen. And the Court blanketly decides that the juvenile justice system is never available to rehabilitate thirteen-year-olds who commit sex crimes because it proclaims that all thirteen-year-old teens are legally incapable of consenting to sex.”


It is a tough call. At what point does life’s brutalities hardened a 13-year-old or a 12-year-old into a premature capacity to consent to sex? A majority of the Texas Supreme Court says there can never be a capacity to consent to sex for a child under age fourteen while the dissent said a sufficient capacity could exist to constitute “delinquent conduct” under the Juvenile Justice Code sufficient to prosecute for prostitution. While it seems ridiculous to charge any child with prostitution, logically, we tend to agree with the dissent. If a 13-year-old can be adjudicated a juvenile delinquent for assaultive behavior or for possession of controlled substances under the juvenile code, and, more to the point, prosecuted as an adult for murder under the state’s penal code, that same 13-year-old can surely be adjudicated for prostitution, if the facts support the charge.


We understand that at some point in her young life B.W. was the victim of unwanted sexual abuse by an adult. At what age we don’t know. And clearly it had a devastating emotional and psychological impact on her as revealed in her mental health reports. But to establish a rule that frees her of liability for a sex crime simply because she is under the age of fourteen on the premise that she lacks the legal capacity to consent while maintaining her liability for all other “delinquent conduct” does not make a lot of sense. In effect, the Supreme Court is saying B.W. can be prosecuted for smoking marijuana but not prostitution.


We also agree with the dissent that returning B.W. to Child Protective Services for placement in foster care will probably do more harm than good. We recently dealt with the fact that the Texas’ foster care system is producing future adult criminals on an assembly line basis. B.W. has demonstrated she cannot be handled in a foster care group home and she is certainly too old (and criminally unsuitable) to be easily placed in adoption. The end result is that she will be held in some form of foster care until she reaches the age where she can be prosecuted for her future “delinquent conduct,” including prostitution.


We are not unmindful of the fact that B.W.’s 32-year-old “pimp” was not prosecuted—and this fact has once again held the Texas criminal justice system up to more national ridicule. We also agree with the majority of the Court that the children are the ultimate victims in child prostitution cases.  So why charged B.W. at all?  Wouldn’t she have been better served by placement in counseling or treatment?


This was undoubtedly a disturbing case from many different perspectives.  However, the prosecutors who decided to file this particular case against B.W. deserve some criticism about their decision making processes.  There’s no way the Harris County District Attorney’s Office can justify its decision to prosecute B.W. for prostitution when it apparently gave a free pass to her pimp.  With that decision the District Attorney’s Office has created one certainty: it will most likely be prosecuting B.W. for years to come for a wide range of criminal activity. Whatever faith she may have had in the criminal justice system went down the proverbial drain with the District Attorney’s handling of her case.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair