Enacted in 2007 as part of the Texas Legislature’s package of child sex offenses known as “Jessica’s Law” (mandatory minimum sentencing for certain child sex offenses, lifetime parole restrictions following offender release, lifetime sex offender registration, and restrictions about residency, employment, community involvement, and travel), the continuous sexual abuse of young child or children statute is codified in Texas Penal Code, Section 21.02.

 

With a mandatory minimum of 25 years to a maximum of 99 years, or life, for a first offense of conviction and a second offense carrying a mandatory life without parole sentence, Section 21.02 is the second most severely punishable crime in Texas, behind only capital murder involving death penalty exposure. It should be noted that Texas law still permits jurors to consider the death penalty for a repeat conviction for what is called “super” aggravated sexual assault of a child, which can be applicable under Section 21.02.

 

Probation for offenders convicted under Section 21.02 is not an option. Likewise, an offender convicted under this section is not eligible for parole.

 

To secure a conviction under Section 21.02, the State must prove three essential elements:

 

  • The defendant was 17 years or older at the time of the offense;
  • That  the child was under 14 years of age; and
  • That the defendant committed two or more acts of sexual abuse against the victim during a 30-day period.

 

The jurors in a Section 21.02 prosecution do not have to unanimously agree on the specific acts of sexual abuse or on the specific dates that the acts may have occurred. The jury, however, must unanimously agree that two specific acts of sexual abuse occurred within a 30-day period.

 

In a 2015 Texas Law Review article, Dallas attorney Brian Bah put it this way:

 

“[Continuous Sexual Abuse) statutes are meant to battle a difficulty in convicting child molesters: many of these cases revolve around alleged repeated sexual abuse with only generic evidence available since the child in question has difficulty providing event-specific evidence. I use the term ‘generic evidence’ to refer to evidence regarding abuse in general that is not specific to any one particular event in time. There is a tension present between trying to enforce offenses like this and traditional notions imbedded in our criminal law system. CSA statutes have been written by states to increase prosecutors’ ability to convict child molesters, yet to do this CSA statutes actually focus on proxies for this sort of continuous abuse, rather than having to prove the individual bad acts themselves. Thus, CSA statutes allow a defendant to be convicted without jury agreement on particular specific acts committed, as long as the requisite number of acts can be agreed on, along with other requirements depending on the state.”

 

The following sexual offenses constitute sexual abuse:

 

  • Aggravated Kidnapping(with the intent to violate or abuse the victim sexually)
  • Indecency with a Child(by contact with genitals or anus but not breast}
  • Sexual Assault 
  • Aggravated Sexual Assault 
  • Burglary of a Habitation (with the intent to violate or abuse the victim sexually)
  • Sexual Performance by a Child 
  • Trafficking of Persons 
  • Compelling Prostitution 

 

Per a 2017 amendment to Section 21.02, this offense can be prosecuted regardless of any deceptive means utilized by the victim to conceal their real age. The act is all that matters.

 

Also, there is no statute of limitation under Section 21.02. That indicates just how serious the State of Texas considers this offense.

 

The seriousness of the offense and the associated penalties demand the services of an experienced criminal defense attorney to develop a viable defense. Jurors are sworn into jury duty in sex crime cases with inherent biases against the defendant, regardless of their assertions on voir dire about being “fair and impartial.” That is the reality facing the defendant and defense counsel in these cases.

 

The best defense against a continuous sexual abuse of a child charge rests with demonstrating reasonable doubt. Defense counsel must give at least one juror reason to have reasonable doubt about the defendant’s guilt. Defense lawyers can be accomplish this in a variety of ways, including but not limited to:

 

  • Reviewing all the videotapes, interview notes, and protocols utilized by Child Protective Services personnel in their examinations and screenings of the victim.
  • Demand, and secure, as much discovery material as possible in possession of the district attorney’s office and the police department.
  • Secure the child victim’s school records and as much non-privileged information about the social services and counseling provided to the child through the school.
  • Investigate the child’s family history to understand the inner dynamics of the child’s home environment, particularly any tendencies by the child to lie, embellish, or makeup things.
  • Try to discover as much information as possible about the 30-day period during which the alleged sexual abuse occurred.
  • Be prepared to cross-examine the State’s child expert witnesses, who, if left unchallenged, will attempt to leave a false impression that children never lie about these sorts of allegations.

 

Within this investigative framework, there may be enough cause for reasonable doubt to secure an acquittal or, at the very least, a hung jury.  

 

These cases are inherently dangerous given our natural biases, which lead us to believe and protect our children. Defense lawyers can only overcome the biases with preparation, skill, and experience in dealing with these most complex cases.