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Aggravated Sexual Assault of a Child:  Texas Penal Code §22.021

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Perhaps no criminal prosecution is pursued more aggressively by Texas prosecutors than cases involving allegations of the sexual assault of a child.  Today, more and more arrests and charges are being pursued by law enforcement regarding crimes involving child sexual abuse than ever before.  Correspondingly, statistics report that in the State of Texas, 1 in 4 girls will be sexually abused before her 18th birthday, and 1 in 6 boys will be sexually abused before he turns 18 years old.

In response, The Texas Legislature has made it a separate crime for anyone who suspects child sexual abuse to fail to report their suspicions to the authorities for investigation; this includes teachers, doctors, nurses, and daycare workers.  Furthermore, these reports must be made within 48 hours.  Anyone charged with failure to report suspected child abuse or neglect faces the possible criminal conviction on a misdemeanor charge with up to 6 months in jail and a $2000 fine.  See, Chapter 261 of the Texas Family Code as discussed by the Office of the Attorney General of the State of Texas in its informational brochure entitled “When You Suspect Child Abuse or Neglect.”  Obviously, this law helps law enforcement discover and institute investigations into child sexual abuse all across the state.

From a criminal defense standpoint, the harsh reality for anyone investigated and arrested on child sexual abuse charges in the State of Texas is that these cases usually come with an emotional component and fervent determination on the part of the District Attorney’s Office which makes these matters more likely than most to be tried and less likely than most to be readily amenable to a plea deal.

These are never easy cases for the Texas criminal defense attorney who is tasked with providing zealous representation to those charged with child sexual abuse, and this is particularly true when the charges involve aggravated sexual assault of a child pursuant to Texas Penal Code §22.021.  In fact, some criminal defense lawyers may decline to undertake these types of cases due to the complexities they entail. 

The Crime of Aggravated Sexual Assault of a Child: Texas Penal Code §22.021

The actual crime of “aggravated sexual assault” is defined in Texas Penal Code §22.021.  It requires the prosecution to prove beyond a reasonable doubt with admissible evidence that either a sexual assault or statutory rape was perpetrated by the accused and that this act was enhanced (“aggravated”) by certain defined circumstances, such as using or exhibiting a deadly weapon in the course of the act. See, Texas Penal Code §22.021(a)(2),(c).

When a child is involved, the prosecution’s case requires proof that the accused, regardless of whether or not the age of the child is known at the time of the offense, intentionally or knowingly committed any one of five (5) described sexual acts involving the child and either the accused or another person.

For purposes of this statute, “child” is defined by  Texas Penal Code §22.011(c), “a person younger than 17 years of age.”

Aggravated Sexual Assault of a Child is a Felony of the First Degree: TPC§22.021(e)

The statute defines the punishment upon conviction for aggravated sexual assault as a “felony of the first degree,” and the minimum term of imprisonment is increased to 25 years in a state facility when:

(1)  the victim of the offense is younger than six years of age at the time the offense is committed; or

(2)  the victim of the offense is younger than 14 years of age at the time the offense is committed and the actor commits the offense in a manner described by Subsection (a)(2)(A).

As for probation, a judge is not allowed to give probation to someone who is convicted of aggravated sexual assault; however, a jury may recommend probation if the child victim was at least 14 years old at the time of the incident.  Texas Code of Criminal Procedure Article 42A.056(4).

Some may be eligible for deferred adjucation after facing charges for Aggravated Sexual Assault.  Eligibility depends upon (1) no prior placements for community supervision for sexual assault, aggravated sexual assault, indecency with a child, or a violation of child safety zone statutes; and (2) not facing charges of a violation involving a child under the age of 6 years or a child under the age of 14 years as well other defined aggravating factors in the statute. Habitual offenders are not eligible for deferred adjucation when facing charges of Aggravated Sexual Assault.   Texas Code of Criminal Procedure Article Art. 42A.102(b)(2),(3).

Parole may be available to those convicted of Aggravated Sexual Assault of a Child as long as they are not sentenced to life imprisonment as a repeat offender or convicted on the mandatory minimums of a Super Aggravated Sexual Assault charge.  Texas Government Code §508.145(c),(d).  Parole eligibility qualifications (and exceptions to its application) are listed in Texas Government Code §508.145(d).

Super Aggravated Sexual Assault Charges

In the State of Texas, prosecutors and defense counsel sometimes refer to Aggravated Sexual Assault of a Child cases as “Super Aggravated Sexual Assault” charges because of the statutory enhancement of the punishment that is defined in the statute by the Texas Legislature.

In Aggravated Sexual Assault cases involving an adult victim, the punishment range is 5-99 years imprisonment since it is defined as a felony in the first degree.  The statute increases that punishment to a minimum time behind bars of 25 years imprisonment when a child is involved.

Super Aggravated Sexual Assault sentencing involves either (1) a child victim under the age of six years or (2) the situation where someone previously convicted of a violent sexual assault involving a victim under the age of 14 years commits the same criminal act a second time.  Texas Penal Code §22.021(f).

Those convicted of Super Aggravated Sexual Assault charges and sentenced to the minimum of 25 years imprisonment (or more) are not eligible for parole.  Texas Government Code 508.145(a) prohibits parole eligibility for anyone who is serving a “mandatory minimum” sentence of 25+ years.

Distinguishing Aggravated Sexual Assault Charge from Continuous Sexual Abuse of a Child

Continuous Sexual Abuse is a separate crime as defined by the Texas Legislature in Texas Penal Code §21.02.  It comes with a different range of punishment and different parole eligibility.

The same definition of “child” applies to this criminal charge as to Aggravated Sexual Assault of a Child, i.e., “a person younger than 17 years of age.”

To be convicted of Continuous Sexual Abuse of a Child, the prosecution must prove beyond a reasonable doubt with admissible evidence that the accused committed two (2) or more acts of sexual abuse of one or more children within a time period of 30 days (or more).  At the time of these acts, the accused must be proven to be at least 17 years old or older while the victim(s) were 13 years old or younger.

However, a defendant may not be charged with more than one count of Continuous Sexual Abuse 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. Texas Penal Code §21.02(f).

Continuous sexual abuse of a child can be proven with evidence of a variety of illegal acts.  Convictions can be based upon aggravated sexual assaults of a child, as well as prove of sexual assault (with aggravation), sexual performance by the child, or indecency by contact with a child.  Texas Penal Code §21.02(c).

The “act of sexual abuse” for purposes of proving up Continuous Sexual Abuse is also defined to include is a violation of one or more of the following penal laws, quoting the statute:

  • aggravated kidnapping under Section 04(a)(4), if the actor committed the offense with the intent to violate or abuse the victim sexually;
  • burglary under Section 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);
  • trafficking of persons under Section 02(a)(7) or (8); and
  • compelling prostitution under Section 05(a)(2).

The Legislature has made proving up these cases a bit easier for the prosecutor.  The statute provides that 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.  However, 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.  Texas Penal Code §21.02(d).

Continuous Sexual Assault of a Child is a Felony of the First Degree: TPC§21.02(h)

The crime of Continuous Sexual Assault of a Child has also been deemed by the Legislature to be a felony of the first degree, punishable by imprisonment in the Texas Department of Criminal Justice (DCJ) for life, or for a minimum term of not less than 25 years and not more than 99 years.  Texas Penal Code §21.02(h).

Those convicted of CSA are not eligible for probationDeferred adjudication is not available under the law. Also, parole is not available in a CSA case.  These are calendar sentences.

For more on the crime of Continuous Sexual Abuse of a Child, read:

Registration as a Sex Offender

Conviction for either Aggravated Sexual Assault of a Child or CSA will require the convicted person to register as a sex offender with the State of Texas.  Article 62.001(6) of the Texas Code of Criminal Procedure.

Criminal Defense After Arrest for Aggravated Sexual Assault in Texas

An experienced criminal defense attorney will undertake the representation of anyone accused of the serious charge of Aggravated Sexual Assault of a Child by first investigating the charges in detail as they have been presented in the prosecution’s case file as well as in the underlying law enforcement investigation.  The defense will also undertake its own discovery of the matter to find mitigating or exculpatory evidence.  This can involve documentary evidence as well as interviewing and taking witness statements on behalf of the accused.

From this work, as well as corresponding legal research, the defense lawyer may be able to file evidentiary challenges or due process motions which can hone the state’s case into a smaller case or lesser charges.  For more, read:

In addition, the defense will build its own defense of the charges as they exist in the particular circumstances.  In addition to potential defenses found in case precedent, there are statutory defenses provided by the Legislature in Texas Penal Code 22.021(d) for those accused of Aggravated Sexual Assault of a Child provided by Texas Penal Code §22.011(d), which provides, quoting the statute:

(d)  It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.

(e)  It is an affirmative defense to prosecution under Subsection (a)(2):

(1)  that the actor was the spouse of the child at the time of the offense; or

(2)  that:

(A)  the actor was not more than three years older than the victim and at the time of the offense:

(i)  was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or

(ii)  was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and

(B)  the victim:

(i)  was a child of 14 years of age or older; and

(ii)  was not:

(a)  a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01; or

(b)  a person with whom the actor was prohibited from engaging in sexual intercourse or deviate sexual intercourse under Section 25.02.

Finally, the criminal defense in any case involving someone accused of Aggravated Sexual Assault of a Child must consider the possibility of a full jury trial of the matter instead of opting for a plea deal.  This is a strategic decision to be made between lawyer and client, of course, depending upon considerations such as the statutory provision that the only availability for probation may hinge upon a jury recommendation.

Anyone who suspects they are being investigated for sex crimes involving someone under the age of legal consent would be wise to enlist the aid of a Texas sex crimes criminal defense lawyer as soon as possible.  Even the hint of these allegations can permanently harm personal and professional reputations, even if no charges are brought.  The social stigma here can result in permanent harm to the individual and his or her loved ones.

Sadly, sometimes these allegations are based upon falsehoods or exaggerations made in the midst of divorce proceedings, child support or child custody battles, and other personal skirmishes.  See, e.g., Schudson, Charles B. “Antagonistic parents in family courts: False allegations or false assumptions about true allegations of child sexual abuse?” Journal of Child Sexual Abuse 1.2 (1992): 113-116.

Facing formal allegations of Aggravated Sexual Assault of a Child is one of the more serious crimes that anyone can be charged with in the State of Texas.  The need for immediate and experienced criminal defense support cannot be underestimated. 

For more on criminal defense of sex crime charges under Texas law or federal statute, see:

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articleTop 10 Mistakes In Sexual Assault And Indecency With A Child Cases.”

 


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