Indecency with a Child in Texas

Indecency with a child

What is Indecency with a Child in Texas?

Texas Penal Code Section 21.11 sets out the offense of indecency with a child in Texas. Indecency by child means sexual contact with a child or sexual exposure involving a child under the age of 17. Indecency charges are commonly filed as “fondling” or “exposure” charges.

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. 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:

  1. not more than three years older than the victim
  2. the accused is of the opposite sex
  3. the accused did not use force, duress or a threat.

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.

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).

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(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.