If you have been charged with sexual assault in Texas, get on the phone with Cofer & Connelly, PLLC’s experienced sex crime lawyers in Austin. We will clarify the charges against you and how we can effectively defend you and protect your rights.
What is the Difference Between Rape and Sexual Assault in Texas?
Under Texas law, crimes often referred to by the term "rape" elsewhere are called sexual assault. In Texas, rape and sexual assault are two distinct crimes that people often confuse. Understanding the differences between the two can be crucial for both prevention and legal recourse.
- Rape is considered a subset of sexual assault in Texas and is a more severe form. Typically, rape involves sexual penetration without consent or with the use of force.
- Sexual assault can include any unwanted or non-consensual sexual contact such as fondling or groping.
It is important to note that lack of consent is a crucial factor in both rape and sexual assault cases, regardless of the specifics of the act. While some people in everyday conversation today may use the term "sexual assault" to include unwanted touching or even sexual conduct that is offensive in the workplace, for example, the crime of sexual assault under Texas law is much more serious.
What is Considered Sexual Assault in Texas?
Texas Penal Code Sec. 22.011 defines the crime of sexual assault when someone intentionally or knowingly commits an intimate sexual act (touching and penetration) on someone else's body without their consent. The law goes into some detail about the parts of the body that are involved in sexual assault crimes. Even without the graphic detail of the body parts referenced in the law, most adults clearly understand what is forbidden when it comes to non-consensual contact with another person's intimate areas.
Most sexual assault cases are based on the crucial issue of consent between the parties to the sexual act, so the prosecution of a sexual assault case often depends solely on the accusations of one person involved in the intimate activity. False accusations are not unheard of in rape prosecutions.
The key issue to understand is the question of consent—whether both parties to the sexual contact were aware of and in agreement with the contact between them. If both parties did not agree to the sexual activity before it happened, a Texas prosecutor might bring criminal charges of a first- or second-degree felony sexual assault against the person who did the act without the other person’s consent.
It is crucial that the accused consult with a skilled Austin sexual assault defense attorney to protect their rights. A lawyer will conduct an independent investigation and gather critical evidence that may be essential to a strong defense, so it is vital to consult with legal counsel as soon as allegations are raised so the evidence they gather is fresh and most relevant to the defense.
What are the Penalties for Sexual Assault in Texas?
In Texas, there is a minimum 2-year prison sentence for sexual assault convictions. Sexual assault is a felony in Texas. It can be charged as either a second-degree felony or a first-degree felony (aggravated sexual assault).
- Second-degree felony sexual assault
- Prison: between 2 to 20 years
- Fines: up to $10,000
- Aggravated sexual assault (first-degree felony)
- Prison: 5 years to life imprisonment
- Fines: up to $10,000
Additionally, the perpetrator may be required to register as a sex offender for the rest of their life, which could limit their ability to find housing and employment. It's important to remember that the penalties for sexual assault in Texas are not just legal consequences, but also moral ones.
Consent in The Law
The issue of consent is one of the central elements in a Texas sexual assault prosecution. There are a few basic ways that the sex act can happen where consent is lacking, including:
- Use of physical force or violence if the person does not comply with the sexual demands.
- The real and imminent threat of physical harm or violence to anyone if the person does not comply with the sexual act.
- The act involved someone who was unable to consent because of mental or physical limitations or disabilities.
- One person is mentally unable to understand the nature of the situation and the sexual activity.
- The act involved children under 17 who could not give valid consent because of their age.
- There was a relationship of authority where one person used coercion or emotional manipulation based on their authority to get the other person to agree to the sexual act.
- One person is totally unaware that the sexual assault is occurring.
- One person intentionally caused the other to be intoxicated so as to be unable to resist.
- A public servant using a position of trust and authority to coerce the other into sexual activity.
- A mental health provider or medical health services provider who exploits emotional dependency in the relationship to manipulate the other person into agreeing to sexual activity.
- A member of the clergy exploiting the emotional dependency of a member of the congregation.
- An employee of a residential health treatment facility with a patient at the facility, unless they are married.
In some of these cases, the lack of consent to the activity is apparent, such as where there was physical force or threats. In other cases, though, the person may have agreed to the sexual activity at the time but only under duress or manipulation related to the relationship of authority with the other person. A Texas prosecutor can charge sexual assault as a felony of the first or second degree based on the facts of the case.
Sexual Assault of Children
Under Texas sexual assault laws, a child is defined as someone younger than 17. As a result, a consensual sexual relationship between an adult of any age and someone over 17 years old is considered legitimate and does not violate the law.
On the other hand, a sexual act between an adult of any age and a child younger than 17 is a criminal act, even if the younger person was not threatened, coerced, or forced to participate in the activity in any way. There are a few important exceptions to this law that a child cannot consent to sex.
Spousal Defense to Sexual Activity Involving Children
Since adults over 17 are permitted to marry people under 17 in specific cases in Texas, the charge of rape based on age does not apply to situations where they are married. This does not mean that spouses cannot be accused of rape under Texas law, only that the age-based lack of consent laws do not apply to spouses.
Teenage Relationships in Texas
The law allows for relationships between a child who is 14 or older and someone who is not more than three years older. In other words, a 19-year-old can have a consensual sexual relationship with a 16-year-old; and a 17-year-old and a 14-year-old can legally engage in sexual activity if both agree. So long as the age difference between them is three years or less and the younger person is over 14, both people in the relationship can legally consent to sexual activity.
Professional Relationships of Authority
In some cases, a prosecutor may establish a lack of consent under the law even where there was no physical force or threat of violence, where both parties are adults, and both people were mentally alert and able to understand what was happening in the sexual activity. The law allows a prosecutor to show a lack of legal consent where a professional uses the authority of their professional position or legal licensing to manipulate the other into complying with the sexual demands.
Sexual Assault by a Public Servant
A public employee, whether a police officer or mayor, may be charged with sexual assault even if they did not threaten or harm the other person. If the public servant used their position of power and authority to coerce the other into complying with the sex act, the prosecutor could use this power imbalance to show that there was no valid legal consent to the sexual act.
Sexual Assault by Mental Health or Healthcare Professionals
In cases where the accused is a provider of mental or physical healthcare services and the other person in the sexual relationship was a patient or former patient, a prosecutor can show that there was no valid legal consent to the activity. Legal consent is lacking if the healthcare professional exploits a patient's or former patient's emotional dependency to manipulate them into a sexual relationship. Healthcare services providers include all those licensed to practice medical healing arts, such as:
- Physical therapists
- Physician’s assistants
- Registered nurses
- Vocational nurses
Mental healthcare providers include those people who practice mental health professions, including:
- Licensed social workers
- Chemical dependency counselors
- Licensed professional counselors
- Licensed marriage therapists and counselors
- Clergy members (religious leaders)
The law specifies that some of the mental health providers on the list are licensed, but it is clear that unlicensed mental health workers are also covered by the sexual assault laws.
Clergy Members Exploiting Emotional Dependency
Under Texas law, members of the clergy—religious leaders—are defined as “mental health services providers” because of their role in counseling and advising members of their congregation. The term covers priests, pastors, ministers, rabbis, and all similar religious authorities of any denomination. Texas law recognizes that the issue of consent to sexual relationships is impacted by this emotional relationship between religious leaders and members of their flock, and so it places clergy members among the class of authorities who can be charged criminally with sexual assault concerning a member of their congregation.
Residential Facility Employee
Employees of residential treatment facilities like rehabilitation or nursing care centers have a unique position of trust and power over facility residents. Therefore, sexual activity between any worker at a residential facility, including a contract employee who is not typically on duty there, cannot be a legally consenting sexual relationship.
There is an exception in the law for workers who are married to a resident of the facility. They could still be accused of rape if they used force, threats, or the person was unconscious during the sexual activity and had not consented to it, but they are not subject to the legal lack of consent between facility workers and patients who are not married to each other.
Texas Sexual Assault Defense Options
Some of the potential defense options for sexual assault charges in Texas include:
- Consent: If the sexual contact was consensual, then this may be a viable defense. However, consent must be given freely and voluntarily, and the defendant must prove that the alleged victim consented to the sexual contact.
- Mistaken identity: If the defendant was not the perpetrator of the sexual assault, then this may be a viable defense. The defendant must prove that they were misidentified as the perpetrator.
- Lack of evidence: If the prosecution lacks sufficient evidence to prove beyond a reasonable doubt that the defendant committed the sexual assault, then this may be a viable defense.
- Alibi: If the defendant can prove that they were in a different location at the time of the alleged sexual assault, then this may be a viable defense.
It is important to note that each case is unique, and the specific defenses available will depend on the individual facts and circumstances of the case. If you or someone you know is facing sexual assault charges in Texas, it is important to seek the advice of an experienced sexual assault defense attorney in Austin.
Our Austin Sexual Assault Attorneys Are Here To Defend You
If you have been charged with sexual assault, then you may be facing jail time, fines, and being required to register as a sex offender. Clearly the stakes are high in these cases and you will want the best legal representation you can get. The experienced criminal defense attorneys at Cofer & Connelly, PLLC know how to defend against sexual assault charges and will use every tool at our disposal to ensure that you receive a fair and just outcome. We will look over every detail of your case and give you the individualized attention that lesser attorneys may be unable to provide.
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