What is Indecency with a Child in Texas?
Pursuant to Penal Code Section 21.11, indecency with a child means sexual contact with a child or sexual exposure involving a child under the age of 17. Indecency with a child refers to two different offenses: Indecency with a Child by Contact (Fondling) and Indecency with a Child by Exposure.
Indecency with a Child by Contact
Under Penal Code 21.11(a)(1) a person may be charged with Indecency with a Child by Contact. This refers to sexual touching of a child that does not involve penetration.
What is Sexual Contact?
Sexual contact means touching, even through clothing, a child’s anus, breast, or any part of the child’s genitals. It also means touching, even through clothing, any part of the child with the anus, breast, or any part of the genitals of the person. If the accused was not more than three years older than the victim, the accused may be eligible to raise an affirmative defense based on age.
This law prohibits sexual contact with an individual UNDER the age of 17, unless the accused is:
- not more than three years older than the victim
- the accused is of the opposite sex
- the accused did not use force, duress or a threat.
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Indecency with a Child by Exposure
Under 21.11(a)(2), indecency with a child by exposure, the statute criminalizes the conduct of an individual who exposes their anus or any part of their genitals, knowing the child is present; or causes the child to expose the child’s anus or any part of the child’s genitals with the intent to arouse or gratify the sexual desire of any person.
What legal defenses apply indecency with a child?
There are two statutory defenses to a violation under 21.11:
The first defense requires that:
a) The actor was not more than three years older than the child;
b) The actor is the opposite sex than the child;
c) The actor did not use duress, force, or a threat against the child at the time of the offense; and
d) The actor was not required to register, for life, as a sex offender or was not a person who has reportable conviction or adjudication for an offense under section 21.11.
The second defense states that if the actor is married to the child then no offense has occurred under Section 21.11.
While those are the enumerated defenses, there are a number of other defenses that may apply to these cases and an experienced criminal defense attorney will be able to discuss these with you.
What is the punishment for indecency with a child?
Indecency with a child by contact is a second degree felony and carries a prison range of two to twenty years and/or a fine of up to $10,000.
Indecency with a child by exposure is a third degree felony and carries a prison range of two to ten years and/or a fine of up to $10,000.
Is Deferred Adjudication a Possibility for Indecency with a Child?
In rare instances, a prosecutor may agree to place a person on deferred adjudication for Indecency with a Child. While deferred adjudication may avoid a conviction for many purposes, it is still a reportable conviction for purposes of sex offender registration. In other words, a person placed on deferred adjudication for indecency with a child must register as a sex offender for 10 years.
Is Probation a Possibility for Indecency with a Child?
A judge may place a person on probation of Indecency by Exposure. However, it is only by the recommendation of a jury that a judge can place a person on probation for Indecency by Fondling.
What kinds of sentences are imposed for indecency charges:
Although our recent results page has examples of phenomenal outcomes we have achieved for our clients, the data compiled by the Texas Tribune shows how harshly these offenses are punished.
Is indecency with a child a 3G offense in Texas?
Indecency with a child is 3G offense under certain circumstances. Being a 3G offense has a significant effect on punishment. Indecency with a Child by Contact is a 3G offense. Indecency with a Child by Exposure is not a 3G offense. Learn more about 3G offenses in Texas.
Registration as a Sex Offender
An indecency with a child conviction can also result in the actor having to register as a sex offender for 10 years and a for a subsequent conviction for life. Reportable conviction or adjudication” means a conviction or adjudication, including an adjudication of delinquent conduct or a deferred adjudication, that, regardless of the pendency of an appeal, is a conviction for or an adjudication for or based on: (a) a violation of … Section 21.11 (Indecency with a child).
Don’t miss: Sex Offender Registration in Texas
(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or
(B) causes the child to expose the child’s anus or any part of the child’s genitals.
(b) It is an affirmative defense to prosecution under this section that the actor:
(1) was not more than three years older than the victim and of the opposite sex;
(2) did not use duress, force, or a threat against the victim at the time of the offense; and
(3) at the time of the offense:
(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.
(b-1) It is an affirmative defense to prosecution under this section that the actor was the spouse of the child at the time of the offense.
(c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.
How we are different:
We understand that clients who hire us are coming to us with the biggest problems in their lives, and we treat their problems with the care and attention warranted by the problem. We seek out the best outcomes by over-preparing, finding weaknesses in the State’s case, through careful negotiations and, when necessary, trial.
All of our partners are former prosecutors. We not only know the State’s playbook, in many cases we helped write it. We have over half a century of experience handling criminal cases, and we are ready to put our experience to work for you.
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As former prosecutors, we know the best results go to the most proactive attorneys. Call us today at (817) 203-2220 or contact us online to find out how you can get started with our firm.
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The truth is if you are reading this article, the time has already come for you to hire a criminal defense attorney who knows how to protect you.
If CPS or a detective has contacted you regarding an allegation involving a child or if you have been arrested for an offense, call us before you talk to anyone with law enforcement or CPS. Our number is (817) 203-2220 and you can contact us online:
Defenses in Sexual Assault Cases
Every allegation of sexual assault is unique. It is important to understand that when an allegation is made, the State’s prosecution arm springs into action and what happens next is almost clockwork: the alleged victim may be asked to do a SANE (Sexual Assault Nurse Examination), and give a statement to the police. If the accusation involves a child, a CPS worker will take a “forensic interview” of the child. A detective (or a CPS worker) will reach out to the accused and ask for them to come in for a statement. This is very important: whether the accused goes in or not, an arrest warrant will be issued at a later time. To be clear: if the accused goes in, they will be asked to give a statement. The accused will not be arrested at that time and will be free to leave and go home. The detective will then seek a warrant to go back and arrest the accused. Nothing the accused says during the interview will prevent this from happening. It is also true that if the accused does not give a statement, a warrant will be issued for their arrest. Imagine a series of dominos are stacked in a row. Understand the accusation being made is the first domino falling. Regardless of what the accused does, if you imagine the arrest is domino, understand it is in that line just waiting to fall. Put another way, I have never seen anyone talk themselves out of a sexual assault charge. Also be aware of phone calls and text messages that are a ruse to get the accused to make an incriminating statement or an apology that will later be treated like a confession.
Lack of Opportunity
A lack of opportunity may be raised as a defense in a sexual assault case. For example, in a case where a child makes an accusation of sexual assault, if there is a way to show that the accused was never alone with the child, that could become grounds to show there was a lack of opportunity to commit the offense.
Sometimes accusations of sexual assault draw identity into question. In some cases we have volunteered DNA samples to prove our client was not the individual guilty of the sexual assault.
False accusations are made for a variety of reasons. Sometime there are financial reasons to make a false accusations. In other instances, one parent is trying to gain primary custody of a child. In other cases, the alleged victim may regret the fact they had sex with someone – consensually – because their spouse or significant other found out and accused them of cheating.
One of the most common ways false accusations are made is when on person lies about whether consent was given. This often comes up in cases involving young adults and university student, especially if there was alcohol involved. While society is quick to condemn the accused and cry “date rape,” our office has proven consent circumstantially, and sometimes directly, time and time again. Call our office for more details on some of our successes in this area.
While many sexual assault offenses have no statute of limitations, and while the law allows for delayed outcries, this does not mean that the delay in reporting cannot become a feature of the defense strategy. For instance, a report that is not made until the accused has reached a certain level of affluence, or a report that is made after the alleged victim find themselves in trouble might bring the reliability of the accusation into question.
It is important to never ignore the circumstances surrounding an allegation. For instance, false accusations are sometimes made during the course of a divorce. Unfortunately children are sometimes coached to give a particular statement or lie about one of the parents, so that the other parent can gain full custody of the child.
Is Lack of Predilection a Defense?
A question that often comes up is whether a lie detector test or a plethysmograph can prove that the accused did not commit the crime? The short answer is no, but these tools may help in the negotiating process. First the results of a lie detector are not admissible in court. Second, a sex therapist will not say the results of a plethysmograph are absolute proof that a person did not commit the crime. A penile plethysmograph is a device that measures the amount of blood in a penis. It is used to detect the state of arousal in a male in response to certain stimuli. For instance, the plethysmograph can be used to measure whether the accused has a response to a narrative about children or if the accused has a response to violence. Like a lie detector test, depending on the reliability of the expert conducting the test, this may have some value in the negotiating process. It is of the utmost importance that you do not take a polygraph for a police officer. Our attorneys will explain why, and why we use some of the best polygraphers in the state to assist in our cases.