What is Sexual Performance of a Child in Texas?
Sexual performance of a child is a criminal offense in Texas that prohibits an adult from inducing the depiction of child’s genitals or any portion of the female breast below the top of the areola. So this can range from asking a child for a “selfie” to a video. It’s important to point out that for Sexual Performance of a Child, a “child” is anyone under the age of 18, unlike many other criminal offenses where a child is defined as a person under the age of 17. Also note that this offense does not require any physical contact with the child.
It is, however, a second degree felony if the child is between the age of 14 and under 18. The punishment range for a second degree felony is 2-20 years in prison. If the child is under the age of 14, the offense is a first degree felony, and the punishment range is 5-99 years or life in prison.
What is Sexual Performance?
Sexual Performance is defined as “any performance or part thereof that includes sexual conduct by a child younger than 18 years of age.” Any adult who shares the depiction with another is also guilty of the offense.
Are There Affirmative Defenses to Sexual Performance of a Child?
There are affirmative defenses to Sexual Performance of a Child. They include:
- If the defendant and the child were married at the time.
- There was a valid educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose.
- The defendant is not more than two years older than the child. (This Romeo-Juliet provision is only 2 years, as opposed to the typical 3-year provision for most other offenses.)
Is Sex Offender Registration Required if Convicted of Sexual Performance of a Child?
Individuals convicted of sexual performance of a child must register as a sex offender for life. Learn more about sex offender registration in Texas.
Sexual Performance by a child can be found in Penal Code 43.25:
SEXUAL PERFORMANCE BY A CHILD.
In this section:
(1) “Sexual performance” means any performance or part thereof that includes sexual conduct by a child younger than 18 years of age.
(2) “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.
(3) “Performance” means any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience of one or more persons.
(4) “Produce” with respect to a sexual performance includes any conduct that directly contributes to the creation or manufacture of the sexual performance.
(5) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.
(6) “Simulated” means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.
(7) “Deviate sexual intercourse” and “sexual contact” have the meanings assigned by Section 43.01.
(b) A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.
(c) An offense under Subsection (b) is a felony of the second degree, except that the offense is a felony of the first degree if the victim is younger than 14 years of age at the time the offense is committed.
(d) A person commits an offense if, knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.
(e) An offense under Subsection (d) is a felony of the third degree, except that the offense is a felony of the second degree if the victim is younger than 14 years of age at the time the offense is committed.
(f) It is an affirmative defense to a prosecution under this section that:
(1) the defendant was the spouse of the child at the time of the offense;
(2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or
(3) the defendant is not more than two years older than the child.
(g) When it becomes necessary for the purposes of this section or Section 43.26 to determine whether a child who participated in sexual conduct was younger than 18 years of age, the court or jury may make this determination by any of the following methods:
(1) personal inspection of the child;
(2) inspection of the photograph or motion picture that shows the child engaging in the sexual performance;
(3) oral testimony by a witness to the sexual performance as to the age of the child based on the child’s appearance at the time;
(4) expert medical testimony based on the appearance of the child engaging in the sexual performance; or
(5) any other method authorized by law or by the rules of evidence at common law.
Learn More About Sex Offenses in Texas:
If you or a loved one is facing a charge of sexual performance by a child, call us today for a complimentary strategy session. During this call we will:
- Discuss the facts of your case;
- Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
- Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.
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