Statutory rape is sexual intercourse with a person under the age of consent. In colonial-era America, the age of consent was 10 in some states, while 12 in others. This remained the case until the 1890s when a coalition of feminists, religious conservatives and working class white men demanded that the age of consent be raised. Working-class white men joined this crusade because they believed “middle-class men” were taking advantage of poor white working class girls, even forcing some into prostitution. This social concern about the sexual exploitation of poorer white girls led to the enactment of the federal Mann Act of 1910 that quickly became known as the White Slave Traffic Act.
The Mann Act essentially prohibited the transporting of any woman or girl across a state line for “any immoral purpose.” Some legal historians believe the law was directed at the African-American boxing legend John “Jack” Johnson who, at the time of the law’s passage, was dating and otherwise romantically involved with a number of white women. He was arrested twice under the Mann Act in 1912 and was subsequently convicted and sentenced to a year and a day in prison for transporting a 16-year-old girl across state lines—a teenager with whom he was having a sexual relationship. Rock n’ roll legend Chuck Berry was also ensnared in the Mann Act in 1959 after carrying a 14-year-old prostitute across state lines.
Statutory rape is easy to prove: all a prosecutor must prove is that the victim is under the age of consent and that there was sexual contact.
Age of Consent
The Texas Court of Criminal Appeals has recognized the use of statutory rape laws as long ago as 1969 and as recently as 2014. The age of consent in defined by two statutes in the Texas Penal Code: Section 22.011 which defines sexual assault of a child and defines a child as anyone under the age of 17; and Section 21.11 which prohibits sexual conduct with a child younger than the age of 17. Texas is one of eight states that place the age of consent at 17.
Referred to as “sexual assault” in Texas, statutory rape is most often derived from three penal statutes:
- Section 22.021 (Aggravated Sexual Assault of a Child) – defines the offenses as the sexual penetration (however slight) of or by a child under the age of 14 by a person of any age. This offense is a first degree felony punishable by a minimum of five years up to 99 years in prison and a fine up to $10,000.
- Section 22.011 (Sexual Assault of a Child) – defines the offense as the sexual penetration of or by a child under the age of 14 by a person who is three or more years old than the victim. This offense is a second degree felony punishable by a minimum of two years up to 20 years in prison and a fine up to $10,000.
- Section 22.11(a)(2) (Indecency with a Child) – defines the offense sexual contact with a child by a person who is three or more years older than the victim. Sexual contact is the touching other than penetration, even over clothing, that is meant to arouse or gratify sexual desire. This offense is a second degree felony punishable by a minimum of two years up to 20 years in prison and a fine up to $10,000.
Romeo and Juliet Provisions
In 2011, the Texas Legislature joined a growing list of other states by enacting “Romeo and Juliet” provisions in child sexual assault cases. These provisions are found in Texas Penal Code Section 22.021.
In effect, this legislation signed into law by former Gov. Rick Perry provides that a 17-year-old teen cannot be prosecuted for having sex with a 14, 15, or 16-year-old teen because all three are within the three-year age gap. Similarly, an 18-year-old teen could not be prosecuted for having consensual sex with a 15 or 16 year old teen while a 19-year-old teen could not be prosecuted for having sex with a 16 year old teen.
The Romeo and Juliet provisions effectively defeat Texas’s 17-year-old age of consent by recognizing the social reality that young people do frequently engage in consensual sexual intercourse in one fashion or another. The provisions are a defense against sexual assault/statutory rape in Texas.
The Romeo and Juliet provisions also had a significant impact of sex offender registration as required under Chapter 62 of the Texas Code of Criminal Procedure. Anyone under 17 years of age convicted of having sex does not have to register as a sex offender if they are four years older than the victim who is at least 15 years of age.
However, it must be noted anyone having sex with someone below the 17-year age of consent and who are three years older than the victim can still be prosecuted under Texas law.
The Texas Romeo and Juliet provisions were not made automatically retroactive. Individuals who satisfy the criteria of the provisions and who were required to register as sex offenders before the law was passed can file a petition to de-register under Art. 62.301, Code of Criminal Procedure. The court hearing the petition will consider the age of the parties and whether the sexual conduct between them was consensual.
Constitutional Defect to Texas Statute
It should also be noted that the Texas Romeo and Juliet provisions do not apply same-sex conduct. For example, an 18-year-old male teen having consensual sex with a 16-year-old male teen could be convicted of sexual assault of a child under Section 22.011. Some thirteen years ago the Kansas Supreme Court found the same-sex exception to Romeo and Juliet laws to be discriminatory and unconstitutional. The Texas Legislature has yet to recognize this obvious constitutional defect in its Romeo and Juliet provisions.
The one basic piece of advice from our law firm is this: anyone suspected or accused of a sex offense, especially one involving a child, should exercise their right not to speak to law enforcement officials without a lawyer and should secure the services of counsel as quickly as possible.