continuous sexual assault child

Continuous Sexual Abuse Child | Continuous Sexual Assault Child

Continuous Sexual Assault Child in Texas

 

In the simplest terms, Continuous Sexual Assault Child is an allegation that a person sexually assaulted a child or children under the age of 14 and at least two of the acts took place at least thirty days apart. A charge of continuous sexual assault of a child under 14 is one of the most serious offenses a person can be charged with outside of capital murder.

Continuous Sexual Assault of a Child under 14 carries a punishment range of 25 years to 99 years or life. To prove the assault was continuous, there must be evidence that sexual assault occurred repeatedly for a period of more than thirty days. Penal Code 21.02.

Elements of Continuous Sexual Assault of a Child in Texas

Texas Penal Code 21.02 lays out the elements for Continuous Sexual Assault of a Child. The elements are that:

  1. The accused acted intentionally or knowingly;
  2. During a period of time that is 30 days or more in duration;
  3. The accused committed two or more of the following acts of sexual abuse  (does not have to be the same victim):
    • Indecency with a child by contact with genitals or anus (not breast)
    • Sexual assault
    • Aggravated sex assault
    • Aggravated kidnapping with intent to violate or abuse the victim sexually
    • Burglary of habitation with intent to commit a sexual offense
    • Sexual performance of a child;
  4. And  at the time of each of these acts alleged victim was younger than 14 years of age.

Jurors do not have to agree on the same acts of sexual abuse occurred. The jury must unanimously agree that at least any two acts of sexual abuse alleged in the indictment occurred. The State can also allege the abuse involved different victims.

Punishment Range for Continuous Sexual Assault of a Child

This offense is considered to be a super aggravated offense. The punishment range is 25 to 99 years or life in prison. Unlike even regular aggravated offenses, there is no early release for a person who is found guilty to Continuous Sexual Assault of a Child. (Generally, for aggravated offenses a person is eligible for parole in half time, and for non-aggravated offenses a person is eligible for parole in quarter time.) A second conviction is punished by life in prison without the possibility of parole.

A jury deliberating on this offense does not need to agree on:

  • the specific acts that make up the two offenses more than 30 days apart; or
  • if more than one victim is alleged that both victims were abused, so long as the elements of the offense are met;
  • the specific acts that constituted sexual assault.

It is worth noting that probation is not an option because the minimum sentence is 25 years and only sentences of 10 years or less may be probated. Statutorily, deferred adjudication is also not available for Continuous Sexual Assault of a Child in Texas. More specifically, pursuant to Texas Penal Code Ann. § 21.02(h), the minimum punishment for continuous sexual abuse of a child is twenty-five years. Under Texas Code of Criminal Procedure 42.12, § 4(d)(1), a defendant is not eligible for jury recommended community supervision if the defendant is sentenced to a term of imprisonment that exceeds ten years.

Limitations of Prosecutions for Continuous Sexual Assault of a Child

Penal  Code Section 21.02 went into effect on September 1, 2007 and only offenses  that took place after that date can be prosecuted under this section. See Flores v. State, 13-12-00606-CR (Tex. App. Apr. 17, 2014).

Statute of Limitations for Continuous Sexual Assault of a Child

Pursuant to Penal Code 12.01 is no limitation in Texas on when a continuous sexual assault of a child allegation can be raised.

Why Varghese Summersett

Why do individuals from across the state hire Varghese Summersett PLLC for defense against sexual assault charges?

  • Connector.

    Experienced

    First and foremost, our senior attorneys, most notably Christy Jack and Letty Martinez, have spent a majority of their careers handling the most serious sexual offenses and violent crimes in Texas.

  • Connector.

    Former Prosecutors

    Our criminal attorneys are former Tarrant County prosecutors. We bring insights into the inner workings of the Tarrant County District Attorneys Office to the table and will use those insights to your advantage.

  • Connector.

    Trial Attorneys

    Together our criminal law attorneys have independently tried over 550 jury trials in Texas. That is far above the norm for criminal defense attorneys. We have over 50 years of criminal law experience at our firm and have tried more cases to juries than nearly any other defense firm in the area.

  • Connector.

    Exceptional Resources

    From investigators and polygraphers to forensic analysts, our firm has a wide range of resources that are available to as we work on your case, from the moment an allegation is made all the way through trial.

  • Connector.

    Personal Attention

    We do more than give you access to our attorneys 24/7 through our secure Client Portal. We get to know you personally and represent each client with a level of attention that comes from an understanding that the criminal charges filed against are the biggest problem you are facing in your life.

Continuous Sexual Abuse of a Child or Children

(a)  In this section, “child” has the meaning assigned by Section 22.011(c).

(b)  A person commits an offense if:

(1)  during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and

(2)  at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.

(c)  For purposes of this section, “act of sexual abuse” means any act that is a violation of one or more of the following penal laws:

(1)  aggravated kidnapping under Section 20.04(a)(4), if the actor committed the offense with the intent to violate or abuse the victim sexually;

(2)  indecency with a child under Section 21.11(a)(1), if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child;

(3)  sexual assault under Section 22.011;

(4)  aggravated sexual assault under Section 22.021;

(5)  burglary under Section 30.02, if the offense is punishable under Subsection (d) of that section and the actor committed the offense with the intent to commit an offense listed in Subdivisions (1)-(4);

(6)  sexual performance by a child under Section 43.25;

(7)  trafficking of persons under Section 20A.02(a)(7) or (8); and

(8)  compelling prostitution under Section 43.05(a)(2).

(d)  If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed.  The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.

(e)  A defendant may not be convicted in the same criminal action of an offense listed under Subsection (c) the victim of which is the same victim as a victim of the offense alleged under Subsection (b) unless the offense listed in Subsection (c):

(1)  is charged in the alternative;

(2)  occurred outside the period in which the offense alleged under Subsection (b) was committed; or

(3)  is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (b).

(f)  A defendant may not be charged with more than one count under Subsection (b) if all of the specific acts of sexual abuse that are alleged to have been committed are alleged to have been committed against a single victim.

(g)  It is an affirmative defense to prosecution under this section that the actor:

(1)  was not more than five years older than:

(A)  the victim of the offense, if the offense is alleged to have been committed against only one victim; or

(B)  the youngest victim of the offense, if the offense is alleged to have been committed against more than one victim;

(2)  did not use duress, force, or a threat against a victim at the time of the commission of any of the acts of sexual abuse alleged as an element of the offense; and

(3)  at the time of the commission of any of the acts of sexual abuse alleged as an element 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 or an act of sexual abuse as described by Subsection (c).

(h)  An offense under this section is a felony of the first degree, punishable by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.

There is an affirmative defense to the charge of continuous sexual assault of a child under 17 in Texas. An affirmative defense is a defense that acknowledges the elements of the underlying offense but provides a means to avoid punishment. 21.02 (g) sets out the affirmative defense if the defendant and the alleged victim were not more than five years apart, no force or duress was used, and the defendant was not a sex offender.

Penal Code 21.02 (g) provides:

It is an affirmative defense to prosecution under this section that the actor:

(1)  was not more than five years older than:

(A)  the victim of the offense, if the offense is alleged to have been committed against only one victim; or

(B)  the youngest victim of the offense, if the offense is alleged to have been committed against more than one victim;

(2)  did not use duress, force, or a threat against a victim at the time of the commission of any of the acts of sexual abuse alleged as an element of the offense; and

(3)  at the time of the commission of any of the acts of sexual abuse alleged as an element 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 or an act of sexual abuse as described by Subsection (c).

Leave a Reply

Your email address will not be published.