Charged With Sexual Assault In Texas?

In Texas, getting arrested and charged with sexual assault is a horrible thing to face considering the far-reaching implications of a conviction on your freedom, reputation and relationships with family and friends. Some sexual assault incidents are obvious. Other times, what seems like sexual assault is nothing of the sort, but instead a false or misplaced accusation by someone who just wants to ruin your life. Without effective legal counsel, things could go from bad to worse for you. Let’s take a closer look at what constitutes sexual assault in Texas and what you can do if you are accused.

Indecent Assault

According to Texas law, you generally commit indecent assault if, without another person’s consent, you touch their anus, breast, or any part of their genitals. It also means touching another person with your anus, breast, or genitals, or exposing or trying to expose another person’s private parts including their genitals, anus, female areola, or pubic area. Moreover, indecent assault includes causing someone to contact the blood, vaginal fluid, seminal fluid, saliva, urine, or feces of another. To be found guilty, a prosecutor must prove beyond a reasonable doubt your intent at the time to arouse or gratify sexual desire in anyone including yourself.

Sexual Assault

Under Texas law, sexual assault of an adult is committed in three different ways, all of which involve you acting intentionally or with the knowledge that you are engaging in the act without the other person’s consent: (1) penetrating the anus or sexual organ of another person; (2) penetrating the mouth of another person by your sexual organ; or (3) causing the sexual organ of another person to penetrate your or another person’s mouth, anus or sexual organ.

Sexual assault of a child is committed in five different ways, all of which include you acting intentionally or with the knowledge that you are engaging in the act: (1) penetrating the anus or sexual organ of the child by any means; (2) penetrating the mouth of the child by your sexual organ; (3) causing the sexual organ of a child to contact your or another person’s mouth, anus or sexual organ; (4) causing the anus of a child to contact your or another person’s mouth, anus or sexual organ; and (5) causing a child’s mouth to contact your or another person’s anus or sexual organ.

What does it mean to engage in sexual assault without consent? According to Texas law, here are some examples:

  • Causing someone to participate or submit by using coercion, physical force, or violence, or by threatening to use force or violence on them or someone else
  • The other person does not consent, and you know that they are physically unable to resist or are unconscious
  • You know that the other person is mentally incapacitated to the point in which they either don’t resist or cannot grasp what you are doing
  • The other person does not give you consent, and you know that they are unaware of the sexual assault
  • You intentionally drug or impair the other person without their knowledge, affecting their ability to control themselves
  • You are a public servant who coerces the person to participate or submit
  • You are a health care services provider (physician, chiropractor, physical therapist, nurse) or mental health services provider (social worker, counselor, therapist, psychologist) who causes the other person – which might be your current or former patient – to participate or submit by exploiting their emotional dependency on you
  • You are a clergyman (priest, minister, religious leader) who causes the other person to participate or submit by exploiting their emotional dependence on you as their adviser
  • You are an employee of a facility where the other person resides (unless you are married to each other)
  • You are a health care services worker who uses human reproductive material from the donor without the other person expressly consenting to the use of the donor’s material

Aggravated Sexual Assault

There are certain instances in which sexual assault is considered aggravated:

  • You cause serious bodily injury or try to cause the other person’s death
  • You cause the other person to fear that they or someone else will become a victim of trafficking, serious bodily injury, or death
  • You use or exhibit a deadly weapon
  • You and others join to commit the act
  • You drug someone or otherwise impair their ability to resist
  • The other person is a child who is under 14 years old or an elderly or disabled person

Possible Defenses

First, the prosecutor must show that you know or intend to commit the offense.

You could have done something inappropriate or aggressive, but this does not automatically make it indecent assault, sexual assault or aggravated sexual assault.

The prosecutor might not have any direct or indirect evidence that goes towards your knowledge or intent. If there is a legitimate question as to your knowledge or intent, then you should be found not guilty by a jury.

Also, even if you commit an act which might be deemed sexual assault, you could mount a defense to prosecution in the following situations:

  • You are the spouse of the child
  • You are no more than three years older than the child andat the time of the offense, you are not required to register as a sex offender for life or otherwise required to report a past conviction or adjudication for sexual assault or another sex crime
  • The child is 14 or older andsomeone who you are not precluded from marrying or having sex with

If the incident concerns a child, then it is possible for you to defend on the grounds that you are administering medical care on the child and that this medical care does not consist of making contact between the anus or sexual organ of the child and your or another person’s mouth, anus, or sexual organ.

Penalties For Sexual Assault

Indecent assault constitutes a Class A misdemeanor punishable by a $4,000 fine and a one-year jail sentence.

Sexual assault is normally considered a second-degree felony which is punishable by a $10,000 fine and 2–10-year jail sentence.

Aggravated sexual assault is a first-degree felony punishable by a $10,000 fine and a 5–99-year jail sentence. However, a minimum 25-year jail sentence will apply if the child is under the age of six or where the child is under the age of 14 and the offense is committed by you hurting the child, trying to kill the child, threatening to hurt the child or another person, using a deadly weapon, joining in with other people to commit the act, or impairing the child to prevent his or her resistance.

If this is your first run in with the law, then depending on the circumstances, it is possible for you to be placed on probation in lieu of more serious punishment.

If You Are Charged With Sexual Assault

If you are accused or charged with sexual assault (sometimes referred to as rape), whether it is by your accuser, the police or even a Child Protective Services (CPS) investigator, then you should refrain from speaking with them if possible and instead consult with an experienced criminal defense attorney. You might not have done anything wrong – or at least not what you are accused of. Moreover, you could be falsely accused by someone who has a vendetta against you. With an effective defense, your attorney might be able to prevent a case from being filed or potentially prevent an indictment.

Texas Punishes Sexual Assault More Harshly If You’re Married

Regardless of the circumstance, sexual assault is one of the most grievous offenses one person can commit against another. In all 50 states, sexual assault and other sex crimes are punished more severely than most other criminal offenses.

There is a bizarre distinction in Texas law, however, which calls for enhanced penalties if the defendant is married and commits the sexual assault against someone other than their spouse.

This law was recently upheld in Texas courts when a man was convicted for statutory sexual assault after having sex with his son’s friend (who was under the age of 16). His charges were elevated to a first-degree felony…because he was married.

Let’s look at how this case played out, and how it might affect future defendants facing sexual assault charges in Texas.

The Case: A Married Man and An Underage Girl in Texas

Generally, sexual assault is charged and sentenced as a second-degree felony, but this Texas defendant was hit with a felony in the first degree simply because he was married at the time of the offense.

His defense team appealed this decision to an appellate court. The appellate court ruled there was no rational basis for enhanced sentencing based on the defendant’s marital status.

However, the original criminal court appealed the new decision, which essentially forced the case to the Texas Court of Criminal Appeals, the highest court for state criminal cases.

The high court upheld the original decision to convict the man of a first-degree felony. They argued that a married person could be perceived by children as being a “safe haven” or a source of “stability.” Further, this perceived trust could be used to groom, and then sexually abuse a child.

Next, let’s review how Texas defines, sentences, and penalizes sexual assault, and how these charges could be affected by the defendant’s marital status.

Texas Sexual Assault Defined

Texas defines sexual assault as one of three acts committed either non-consensually or in contexts in which the victim is unable to give consent:

  • Sexual penetration of the victim with the defendant’s sex organ or another object
  • Causing the victim’s sexual organs to penetrate either the defendant or a third party
  • Oral sexual contact of any kind

“Non-consensual” refers to sexual contact by physical force or other means of coercion.

When a victim is unable to give consent, the act is still considered sexual assault even if it was not forcible.

These are scenarios in which a victim is legally identified as being unable to give consent:

  • The victim is severely intoxicated and unable to resist sexual contact or incapable of understanding and consenting to sexual conduct
  • A profound intellectual disability prevents it
  • When a minor child is under 14 years old, or under 18 and at least five years younger than the defendant
  • Any time a victim is the defendant’s patient in a health care setting

Charges may be elevated to aggravated sexual assault when an offender inflicts severe bodily injury or attempts murder — or even threatens the victim in a way which causes fear of kidnapping, harm, injury, or death.

If the defendant employed the aid of a co-conspirator or a narcotic like Rohypnol (also known as the “date rape drug”) or Ketamine, they will likely face enhanced charges, as well.

Additionally, any time a victim is less than 14 years old or considered elderly or disabled, one can expect elevated charges and enhanced penalties.

Texas Sexual Assault Sentencing and Penalties

As described, sexual assault is typically classified as a second-degree felony, punishable by 2-20 years in state prison and a fine up to $10,000. A conviction also carries the requirement for sex offender registration after release.

Aggravated sexual assault a felony in the first degree, carrying a sentence of 5-99 years in state prison and a $10,000-maximum fine. The offense also carries mandatory sex offender registration. This enhancement applies if the defendant is married, as we discussed above.

Although sex offender registration can be lifted in some cases, it’s less likely for severe sex crimes such as sexual assault.

Sexual Assault and Marriage in Texas

Texas is unique in its enhancement for married defendants. Interestingly, the enhancement does not apply if the defendant is married to the victim, commonly referred to as marital rape.

It’s likely that this law will again be challenged in future cases and may ultimately be revised by the state legislature.

In the meantime, we can plan for this unusual enhancement to apply in sexual assault cases involving a married defendant.

Married or not, sexual assault is a serious criminal offense met with severe consequences. If you’re facing sexual assault charges, it’s imperative to be proactive and fight back to beat or reduce the charges against you.

The Fulgham Law Firm is a dedicated criminal defense firm with proven results. We protect the rights of the accused through assertive and effective representation. Founder Brandon Fulgham – a former prosecutor – is well versed on strategies that prosecutors might use against you. He knows what defensive strategies to use given your unique needs and circumstances. If you have been accused or charged with a sex crime, call (817) 877-5200 or contact us online for a free consultation.

About the Author:

Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.