Historically, statutory rape laws prohibit sexual conduct between an adult and a person under the age of consent. These laws are premised on the notion that persons under the age of consent, female or male, are incapable to consenting to sexual activity. Nearly two-third of the nation’s population live in states that set the age of consent at 16 or 17—age 16 in thirty states and age 17 in eight states.
History of Statutory Rape Laws
The 1890s saw a wholesale re-structuring and re-defining of statutory rape laws across the country. These changes were brought about by an odd coalition of white working-class men, religious conservatives, and feminists. This coalition found common ground in their shared belief that middle-class men were taking sexual advantage of working-class women. One federal law in particular, the Mann Act of 1910 (legislatively known as the White Slave Traffic Act) was the direct result of the 1890s era belief that middle-class businessmen were kidnapping working-class women off the street and forcing them into prostitution. White working-class men saw the Mann Act or other related statutory rape laws as a way of protecting the morality and purity of their working-class women—in other words, they wanted to keep their women in the kitchen, mostly barefoot and pregnant.
In a 2004 piece for CNN piece, legal scholar Sherry Colb pointed to the “checkered past” of statutory rape laws by saying that they “had more to do with preserving female virginity than with the force and violence that define rape.”
Statutory Rape is commonly understood to apply to cases where the sexual contact appears to be consensual, but, due to the fact that the law specifically presumes that children under 17 cannot give consent, the contact is defined as illegal. Statutory rape is a second-degree felony with possible range of punishment of two to twenty years in prison.
Texas has five other sex crimes defined by statute:
- Aggravated sexual assault – first degree felony with a term of 5 to 99 years in prison or with a 25-year minimum depending upon age of victim.
- Continuous sexual abuse of a young child or children – first degree felony with a maximum penalty of life imprisonment or a term 25 to 99 years in prison.
- Sexual assault – second degree felony with a possible term of 2 to 20 years.
- Prohibited sexual conduct – second (2 to 20 years imprisonment) or third (2 to 10 years) degree felony depending upon circumstances.
Indecency with a Child
The fifth Texas sex crime is indecency with a child—the topic of this article. This law, which was enacted in 1973, can be found in the Texas Penal Code Section 21.11. Indecency with a child can be committed two ways in Texas: either by contact or exposure. Indecency with a child by contact is a second-degree felony (2 to 20 years) while indecency by exposure is a third-degree felony (2 to 10 years).
Indecency by Contact
Indecency with a child by contact is the touching, even through clothing, of any part of the child’s (female or male under the age of 17) genitals, anus, or breast; or having the child touch any part of the person’s genitals, anus, or breast of the person who is three years or older than the child.
Indecency by Exposure
Indecency with a child by exposure is the exposure of an accused’s genitals or anus when they know a child is present, or when they cause a child to expose her/his genitals or anus. The child does not have to be harmed by the exposure; in fact, the child does not even have to be aware of the exposure. As Judge Cochran with the Court of Criminal Appeals said in Uribe v. State, “The offense is based on the defendant’s actions and mental state, not the other person’s comprehensions.”
Besides the differences in the degrees of the offense and the penalties for them, there is a third important distinction between contact and exposure; namely, indecency with a child by contact, under Texas Code of Criminal Procedure, Art. 62.001(6)(A), is a “sexually violent” offense while indecency with a child by exposure is not, unless the accused receives another conviction for a sexually violent offense. Under Chapter 62, a person convicted of an indecency contact offense must register as sex offender for life while a conviction for indecency exposure requires a 10-year registration after the sentence is completely served provided there is no other criminal history.
It is important to note that each act of either contact or exposure is a separate act that can be charged as a separate offense, and there is no statute of limitation for the offense of indecency with a child.
Indecency with a Child is a Serious Offense in Texas
Indecency with a child is a serious offense. The social stigma associated with an arrest, much less a conviction, for a child sex offense has long-term personal and professional consequences. These cases require attention to detail, aggressive discovery, and investigation that leaves no factual or legal stone unturned by a criminal defense team. Under Article 38.07(a) of the Texas Code of Criminal Procedure, the testimony of child sexual abuse victim alone is sufficient to support a conviction for indecency with a child—and the courts have held that a child victim’s testimony need not be precise, need not be as sophisticated as an adult, and need not be corroborated by medical evidence. It takes little more than a child saying he or she saw their parents engaged in “sex” to support an indecency with a child by exposure conviction.
There really is no margin for error in child sex offense cases, particularly those involving indecency with a child. It is the easiest charge for the State to bring and one of the most difficult to defend because innocent or inadvertent actions by an adult can lead to the charge.