Sex Crimes in Texas: Criminal Defense Overview
Posted on by Michael Lowe.
Allegations of sex crimes under either state or federal law can destroy lives, even before charges are filed. A single sex crime conviction can follow someone for the rest of their days. The need for a vigorous and aggressive criminal defense cannot be underestimated.
What is a Sex Crime?
It’s not that easy to define the term “sex crime,” because whether or not something is an illegal act will depend upon the jurisdiction. In Texas, both state and federal laws establish illegal conduct that constitutes “sex crimes.” Generally, these are acts involving pornography; some kind of sexual misconduct; or sexual assault (rape).
However, a sex crime may involve sexual conduct defined by the government as being illegal regardless of consent of the parties. Consent is not always a legal defense. For instance, “sexting” among teenagers may be popular, but it is also a misdemeanor charge as defined by the Texas Penal Code. See, “When Sexting Is A Crime In Texas.”
Additionally, the law is always changing. New “sex crimes” appear on the books, or change in how they are construed. For example, until recently teens accused of sexting were facing adult felony charges until the legislature stepped in and created a new misdemeanor statute for minors. Another example: next month, new laws outlawing online promotion of prostitution go into effect. Read, “New Texas Sex Crimes: The Online Prostitution Laws Effective September 1, 2019.”
Destructive Consequences of Being Accused of Sex Crime
From a criminal defense perspective, it is very important to become an advocate for someone accused of a sex crime as soon as possible. Just a rumor that someone is being investigated for owning pornography or sexually assaulting a fellow student can have a shocking and permanent impact of the life of the accused, and their families.
This is true long before anyone is arrested, charged, or convicted of a sex crime. The sooner the criminal defense attorney has the opportunity to begin a criminal defense analysis and strategy of the case, the better. For more read, “Unjustly Accused of Sexual Assault: When Rape Allegations Aren’t True There’s Still a Victim” and consider my arguments regarding a public rush to judgment in “Sex Crimes in Texas: How Soon Do You Need To Call A Criminal Defense Lawyer?”
Sex Crimes under Texas Law
Different sections of the Texas Penal Code define sex crimes under state law. They include the following:
1. Texas State Law Sex Crimes Regarding Children
Texas statutes make it a crime to be involved in any kind of sexual activity with a child, defined under the law as someone under the age of majority (under 18 years old). Teenagers are covered by the same laws here as elementary school children and toddlers.
Texas Sex Crimes Involving Children include:
- Texas Penal Code §15.031 (Criminal Solicitation of a Minor)
- Texas Penal Code §20A.02 (a) (7) or (8) (Human Trafficking; Sexual Trafficking of a Child)
- Texas Penal Code § 21.02 (Continuous Sexual Abuse of Young Child or Children)
- Texas Penal Code §21.11 (Indecency with a Child)
- Texas Penal Code §21.12 (Improper Relationship between Educator and Student)
- Texas Penal Code § 43.05(a) (2) (Compelling Prostitution Child Younger Than 18 Years)
- Texas Penal Code § 43.25 (Sexual Performance by a Child)
- Texas Penal Code §43.251 (Employment Harmful to Children).
Often, these charges will overlap with other criminal allegations, such as possession of child pornography. See, “Child Pornography: Defending Against Overreaching Investigations Using the Internet.”
2. Texas State Law Sex Crimes Regarding Sexual Assault (Rape)
In Texas, “rape” is not the vocabulary used in the statutes; instead, the legislation makes “sexual assault” to be a crime under state law.
Texas Sex Crimes Involving Sexual Assault include:
- Texas Penal Code §22.011 (Sexual Assault); and
- Texas Penal Code §22.021 (Aggravated Sexual Assault).
Notably, those who come forward as victims of sexual assault in Texas may also end up needing a criminal defense attorney. In Texas, it is possible to be arrested for a false accusation. Read “False Rape or Sexual Assault Claims: False Allegation is a Felony Charge.”
3. Texas State Law Sex Crimes Regarding Pornography
State law makes it illegal to own, hold, possess, make, create, store, or otherwise be involved in any way with pornography. The form of pornography is not a defense: flash drives can be used as evidence by prosecutors as much as shoe boxes filled with amateur photographs discovered and seized from under a teenager’s bed.
Texas Sex Crimes Involving Porn include:
- Texas Penal Code §21.15 (Improper Photography or Visual Recording)
- Texas Penal Code §43.22 (Obscene Display or Distribution)
- Texas Penal Code §43.24 (Sale, Distribution, or Display of Harmful Material to Minor
- Texas Penal Code §43.26 (Possession or Promotion of Child Pornography).
For more, read “New Texas Sex Crimes: The Online Prostitution Laws Effective September 1, 2019,” and “Photographs as Sex Crimes: Changes to the Texas Revenge Porn Law (Texas Penal Code §21.16).” Also see: “Invasive Visual Recording: Texas Felony Arrest.”
4. Texas State Law Sex Crimes Involving Prostitution
Today, prostitution investigations by law enforcement often overlap with agencies or task forces looking to curtain human trafficking in the state. Sex trafficking is a huge concern at both the state and federal level, with the sex worker being a separate focus from those in the business of illegal sex trade (i.e., the pimps).
Texas Sex Crimes Involving prostitution include:
- Texas Penal Code §43.02 (Prostitution)
- Texas Penal Code §43.03 (Promotion of Prostitution)
- Texas Penal Code §43.04 (Aggravated Promotion of Prostitution)
- Texas Penal Code §43.05 (Compelling Prostitution.
These crimes focus upon the individuals participating in the sexual conduct itself. For more, read “Prostitution Crimes in Texas: Promotion of Prostitution and Compelling Prostitution.”
There are separate crimes that focus upon those running the prostitution enterprise within a trafficking operation. For more on human trafficking, read: “Human Trafficking in Texas: Criminal Defense Perspective Part 1 of 2” and “Human Trafficking in Texas: Criminal Defense Perspective Part 2 of 2.”
Sex Crimes under Federal Law
Usually, Texas criminal defense lawyers will defend clients accused of sex crimes in a state court. However, there are federal prosecutions of sex crimes under federal law. These are often criminal charges that have been filed after sophisticated efforts by federal agencies like the Federal Bureau of Investigation (FBI) or the Internet Crimes Against Children Task Force.
Federal offenses are often more complicated matters with complex prosecutions needing a detailed and thorough criminal defense lawyer who is adept at sex crime defense and working within the federal system.
Moreover, those charged with federal sex crimes will have to undergo sentencing as defined by the federal sentencing guidelines. Read, “Mandatory Minimum Penalties in Federal Sentencing,” which apply to federal child sex offenses.
1. Federal Sex Crimes involving Children and Pornography
As explained by the Department of Justice, “[i]mages of child pornography are not protected under First Amendment rights, and are illegal contraband under federal law,” and federal sex crimes involving child pornography involve:
- 18 U.S.C. § 2251 (Sexual Exploitation of Children) (Production of child pornography)
- 18 U.S.C. § 2251A (Selling and Buying of Children)
- 18 U.S.C. § 2252 (Certain activities relating to material involving the sexual exploitation of minors) (Possession, distribution and receipt of child pornography)
- 18 U.S.C. § 2252A -(Certain activities relating to material constituting or containing child pornography)
- 18 U.S.C. § 2260 (Production of sexually explicit depictions of a minor for importation into the United States.
2. Federal Sex Crimes involving Children and Prostitution
The DOJ also explains that prostitution of children is prohibited by 18 U.S.C. § 1591, which makes it a federal offense to knowingly recruit, entice, harbor, transport, provide, obtain, or maintain a minor (defined as someone under 18 years of age) knowing or in reckless disregard of the fact that the victim is a minor and would be caused to engage in a commercial sex act, with federal sex crimes involving children as sex workers involving:
- 18 U.S.C § 1591 (Sex trafficking of children or by force, fraud, or coercion)
- 18 U.S.C. § 2421 (Transportation generally)
- 18 U.S.C. § 2422 (Coercion and enticement)
- 18 U.S.C. § 2423 (Transportation of minors)
- 18 U.S.C. § 2425 (Use of interstate facilities to transmit information about a minor).
Sex Offender Registration and Removal from Registry
In Texas, those who are convicted of certain sex crimes must place their names and addresses on the Texas sex offender registry, identifying themselves to the general public as a convicted sex offender.
This is a public identification of those convicted of sex crimes, easily accessed by the general public over the web. It is a serious consequence of being arrested for a sex crime to end up as a registered sex offender; this is a social stigma that impacts the individual and their ability to find work, build relationships, etc. as well as impacting their families and loved ones.
It need not be permanent. It is possible to remove someone’s name as a Registered Sex Offender in Texas. For details, read “Texas Sex Offender Deregistration Synopsis: Overview and Steps for Name Removal.”
Keeping a Sex Crime Secret: Sealing a Criminal Record
For those who have undergone the trauma of being arrested and charged with a sex crime as well as those who have made a plea deal or were convicted of a sex crime, the criminal defense lawyer must look to the long term and consider ways in which they can build a brighter future in the face of what are often stigmatizing allegations.
A sex crimes defense needs to include a consideration of whether or not the criminal records can be sealed. This process is known as “expungement.”
For more, read: “Free Expungement or Seal of Texas Criminal Records (Forms And More) Because Everyone Deserves A Second Chance,” and “Criminal Defense Take on 2019 Expunction Policy Reforms by Dallas County District Attorney John Creuzot.”
Conclusion: Criminal Defense of Sex Crimes
Any client facing charges of a sex crime under either state or federal law is dealing with very serious and life-altering circumstances. Social stigmas will attach. If convicted and forced to appear as a Registered Sex Offender, their lives (as well as their families) will be shockingly limited in their chosen residence, their jobs, and how they are treated in the community. Felonies can result in serious prison time, especially in federal prosecutions.
Moreover, criminal defense attorneys are all too aware how lives can be altered and even ruined despite the accused being innocent of committing a sex crime. False rape allegations may be believed as true on campus, for instance. The truth today is that even a suggestion that someone has committed a sex crime can destroy their lives and their future.
Another concern from a criminal defense perspective is over-zealous and emotionally-driven police and prosecutors. In sex crime investigations and prosecutions, it is paramount for the defense to evaluate searches and seizures as well as charges and evidence. Victories can be won in Probable Cause Examining Trials. Cases can be dismissed.
Due process must be carefully protected. All too often, there are instances of law enforcement exceeding their rights and boundaries in sex crime cases. See, “Child Pornography: Defending Against Overreaching Investigations Using the Internet.” In some Texas cases, the forum itself may be suspect. Read, “College Rape Charges: Students Arrested for Sexual Assault and Fixing the Current Kangaroo Court System.”
It is possible to prevail in sex crime criminal defense matters, even when things look dark for the defendant. An aggressive and thorough defense can succeed. See Michael Lowe’s Recent Case Results which include the following:
- Garland Indecent Exposure Case Reduced to Class “C”. My client’s record will be totally expunged.
- Dallas County Sexual Assault/Rape case no billed by the Dallas County Grand Jury. I persuaded a Dallas County Grand Jury to find no probable cause in a date rape case against my client.
- Williamson County Indecency with a Child case dismissed and client’s probation reinstated.
- Online Solicitation of a Minor in Collin County. Client does NO TIME in jail. Client attempted to meet up with a child younger than 14 who turned out to be an undercover Detective. Mr. Lowe was able to persuade a Collin County District Judge to give his client probation and no jail time.
- Dallas County Indecent Exposure Case dismissed. Mr. Lowe was able to have his client case totally dismissed. No probation, no classes or community service. Client’s record was expunged.
For those who are being accused, investigated, or face charges of sex crimes under Texas law or federal statute, the need for a zealous and knowledgeable criminal defense lawyer is paramount. These are serious charges which must be aggressively defended.
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