Sexual Performance of a Child: Criminal Charges under Texas Penal Code § 43.25
Posted on by Michael Lowe.
Anyone under the age of eighteen (18 years) is considered a child under Texas law: their involvement in either sexual conduct or sexual performance is a crime.
The Crime of “Sexual Performance of a Child”
The crime of “sexual performance of a child” is defined under Texas Penal Code Section 43.25 as involving any individual under the legal age of majority (18 years of age) engaged in either (1) sexual conduct or (2) sexual performance. It includes children from infancy through their eighteenth birthday.
Those arrested and charged with the crime of “sexual performance of a child” can be strangers, friends, or acquaintances as well as parents, legal guardians, or custodians of the child.
Parents, legal guardians, and custodians can be arrested on charges of violating Texas Penal Code §43.25 if they consent to the child’s participation in a sexual performance. Other individuals can be arrested on charges of “sexual performance of a child” if:
- knowing the character and content thereof,
- he or she employs, authorizes, or induces the child to engage in (a) sexual conduct or (b) a sexual performance.
It is also a crime if:
- knowing the character and content of the material,
- he or she produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.
Definitions of “Sexual Performance” and “Sexual Conduct” under Texas Penal Code §43.25
The lawmakers have given specific definitions to the actions of sexual activity involving children.
(1) “Sexual performance” means any performance or part thereof that includes sexual conduct by a child younger than 18 years of age.
(2) “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.
(3) “Performance” means any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience of one or more persons.
(4) “Produce” with respect to a sexual performance includes any conduct that directly contributes to the creation or manufacture of the sexual performance.
(5) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.
(6) “Simulated” means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.
(7) “Deviate sexual intercourse” and “sexual contact” have the meanings assigned by Section 43.01.
Under Texas Penal Code 43.01:
- “Deviate sexual intercourse” means any contact between the genitals of one person and the mouth or anus of another person.
- “Sexual contact” means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.
These are Serious Felony Charges
Anyone convicted for the crime of Sexual Performance by a Child pursuant to Texas Penal Code Section 43.25 faces significant incarceration because the statute considers this to be a Second-Degree Felony.
If the child was younger than 14 years old at the time of the offense, then things are more serious. Here, the charges rise to those of a First-Degree Felony. Texas Penal Code 43.25(c), (d), (e).
It does not matter that the accused had no idea of the child’s age, or did not know the person was under the age of 18 years old, at the time of the offense.
Affirmative Defenses under Texas Penal Code §43.25
The provisions of this Texas statute also define a number of defenses that can be asserted by someone accused of the crime of Sexual Performance by a Child. Texas Penal Code §43.25(f).
These are defined as “affirmative defenses” under the statute, and involve the accused pleading and proving one of the following:
- the defendant was the spouse of the child at the time of the offense;
- the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or
- the defendant is not more than two (2) years older than the child.
Wide Range of Circumstances in Charges of Sexual Performance by a Child
Of course, the manufacturing and distribution of child pornography may well include charges of violating Texas Penal Code 43.25.
However, many may be surprised to find the variety of situations where someone can be arrested for the crime of Sexual Performance by a Child. Consider the following case precedents:
1. Possession of Cell Phone Photo of Famous Museum Art Piece
In a unanimous decision by our highest criminal court, the Texas Criminal Court of Appeals, the arrest and conviction of Mark Bolles for possession of child pornography (Texas Penal Code 43.26) as well as violating Texas Penal Code 43.25, Sexual Performance by a Child was affirmed.
Took Photo of Image on Public Library Computer Screen
Mark Bolles was not arrested for having any personal contact or communications with anyone under the age of consent. The underlying incident that resulted in his conviction on felony sex crimes involved Mr. Bolles taking his cellphone and using it to take photos of an image he had discovered on his local public library’s computer screen.
The image itself is famous (as well as its photographer). The image for which Mr. Bolles was convicted involves a portrait of a 3 year old girl, sitting on a bench, in such a way that her genitals can be seen. The photograph is entitled “Rosie,” and is considered art appearing on display at the Guggenheim Museum in New York City.
Key here is what Mr. Bolles did insofar as editing the image. He did not store the complete photograph. Instead, he zoomed onto the image as it appeared on the public library computer screen and cropped it, so that he saved only the portion of the photograph containing the child’s genitals.
Was this a crime, to crop and edit an image of a famous museum exhibit?
The Texas Court of Criminal Appeals affirmed the lower court determinations that it was illegal. The High Court held that the cropped version of what had been a legal photograph constituted “child pornography” as defined in both Texas Penal Code §43.26 and §43.25.
Specifically, the CCA found that Texas Penal Code §43.25(a) (2) defines sexual conduct to include “lewd exhibition of the genitals.”
The Dost Test
Referring to federal case precedent (United States v. Dost), the CCA applied the Dost factors to determine that the image on Bolles’ phone was child pornography — even if it was taken from an image that was a legal photograph. It was held to be a “lewd exhibition” of the little girl’s genitals and therefore illegal under Texas law.
Under United States v. Dost, as applied in Bolles, the test involves determining:
- whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
- whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
- whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
- whether the child is fully or partially clothed, or nude;
- whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and
- whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
To read the full opinion, see: State v. Bolles, 541 S.W.3d 128 (Tex. Crim. App. 2017).
2. Online Dating Becomes Human Trafficking with Sexual Performance of a Child
Robert Ritz was 44 years old when he first met K.D. on a dating web site. K.D. was 14 years old. At first, they communicated online, but things progressed and soon they were talking on the phone and arranging to meet up in person.
Robert and K.D. began a sexual relationship. Robert would pick up K.D. near her house, after she had snuck away from her parents. At first, they had sex in his car, or outside on a blanket. Then they started driving to Robert’s house for their encounters; afterwards, Robert would drop off K.D. near her home so she could sneak back inside.
This relationship lasted for months. In fact, it appears that it was law enforcement charging Robert that broke things up.
The police stumbled upon Robert’s relationship one day, as they were investigating an online harassment case involving one of K.D.’s friends. During that investigation, the local police learned K.D. was involved in a sexual relationship with an adult male.
The police grabbed information off of K.D.’s electronic devices to learn more, including text messages between the two of them.
Construing Human Trafficking Laws as Including Online Dating When Minor is Involved
Robert Ritz was arrested on charges of human trafficking which included continuous trafficking of a person, even though the facts did not involve “organized crime, prostitution, or forced labor.”
The Texas Court of Criminal Appeals found that Mr. Ritz’s actions violated state human trafficking laws because Texas Penal Code Section 20A.03 makes it a crime if a person, during a period that is 30 or more days in duration, engages two or more times in conduct that constitutes the offense of “trafficking of persons” against one or more victims.
Under Texas Penal Code Section 20A.02(a)(7)(I), a person can commit the offense of “trafficking of persons” if he traffics a child and by any means causes the trafficked child to engage in, or become the victim of, conduct prohibited by Texas Penal Code Section 43.25 (Sexual Performance by a Child).
Because Robert’s sexual relationship with K.D. continued for more than 30 days, he was convicted as a human trafficker as well as a sex crime offender.
Robert Ritz was sentenced to life imprisonment.
Of note, both the concurrence and dissent in this case suggest that a different result might occur in a future, analogous situation if there were defense arguments based upon constitutional grounds.
To read the full opinion, see: Ritz v. State, 533 S.W.3d 302 (Tex. Crim. App. 2017).
3. Girlfriend Access of IPhone Leads to Arrest for Sexual Performance by a Child
In another online dating situation, Darrius Thomas met his girlfriend Arlene online and they started dating. Things progressed, and soon Arlene asked Darrius to move into the home she shared with her three children.
The couple shared some of their bills: Darrius paid the rent one month, and he gave Arlene his PIN number so she could use his debit card to pay bills or buy groceries. She also used his credit card with his approval.
Darrius had two phones: one was an iPhone and the other, an Android. Arlene used the Android, but Darrius had password protection on the iPhone. He kept photos of Arlene and her kids on this phone.
Darrius and Arlene would look at these photos occasionally, as well as using the iPhone to check out social media together.
One day, Arlene discovered Darrius’ iPhone in a sweater she had brought to work. At her friend’s suggestion, Arlene checked out the photos on this phone so she could delete any “unflattering” pictures of her.
She gained access not by asking Darrius for permission, but instead trying out the PIN he had given her for his debit card. It worked. Arlene was able to unlock the iPhone, where she discovered images of her young daughter asleep in bed, including images “angled at between her legs, pictures of her panties,” and one photo with her daughter’s genitals exposed.
Arlene called the police. The Harris County Sheriff’s Office responded. She showed the deputies what she had found on the iPhone and this was documented in the police report.
Thereafter, the deputies requested and obtained an official search warrant for the iPhone, so they could legally search the iPhone and its contents for evidence of a crime. The Sheriff’s Deputy testified later that he understood that Arlene had the owner’s consent to access the contents of the phone, because of their relationship; the fact that they were living together; and that they shared finances with each another. However, he relied only on what Arlene told him when he wrote the police report and when he documented what would be considered probable cause to allow for the search warrant.
Key here: the search warrant affidavit contained no information indicating Darrius consented to Arlene accessing his iPhone.
Darrius was arrested on charges of (1) possession of child pornography and (2) sexual performance by a child.
Motion to Suppress Evidence Discovered on the Phone
After reviewing the case, including the search warrant and its supporting documentation, Darrius’ lawyer moved to suppress the photographs discovered on the iPhone.
For more on this procedure, read our discussion in “What is a Motion to Suppress.”
Legally, it was argued that the Texas Exclusionary Rule mandated that everything the police had obtained on Darrius’ iPhone had to be excluded from evidence used by the prosecution. This was because Arlene had no approval or authority to access the contents of the iPhone in the first place. See Tex. Code Crim. Proc. art. 38.23(a).
The motion argued that Arlene had acted illegally, and therefore the police had no legal right to the search or its resulting findings.
At the suppression hearing, Arlene testified she did not think she was “doing anything wrong by looking at his phone,” but she admitted she felt like she was invading appellant’s privacy by doing so.
Plea Deal and Appeal after Motion to Suppress Denied
Darrius ended up pleading guilty after the suppression motion was denied. He then appealed the trial judge’s decision to deny the motion to suppress.
On appeal, Darrius argued that the trial court erred in denying his motion to suppress because Arlene had illegally obtained the photo evidence in violation of Texas Penal Code section 33.02.
Because Arlene may not have known that she lacked Darrius’ effective consent when she accessed the iPhone, and there was no evidence she knew Darrius did not give his approval for her to access the photos, the trial court judgment was affirmed.
To read the full opinion, see: Thomas v. State, No. 14-16-00665-CR (Tex. App. Oct. 3, 2017).
Texas Criminal Defense Lawyer for Charges of Sexual Performance by a Child
These three case examples demonstrate not only the seriousness of any allegations of violating Texas Penal Code §43.25, but the extreme necessity of an aggressive and experienced criminal defense lawyer to advocate on behalf of those who are facing these kinds of felony charges.
Not only are personal relationships, jobs, careers, and reputations at risk here, but important legal arguments must be advanced.
Constitutional protections involving free speech must be considered, as demonstrated in the Bolles case. If you take a photo of a controversial portrait or photograph in a museum, then are you at risk of arrest? Where is the line between art appreciation and pornography?
What about the application of a criminal statute to the particular case? For instance, are there constitutional arguments to be made that an online relationship does not extend to the statutory definition of “human trafficking” involving violation of the Sexual Performance of a Child law? In the Ritz decision, both the concurrence and the dissenting opinion suggest that a future opinion may find this to be so.
Additionally, evidence issues and the actions of law enforcement must be investigated. What are the reasons for getting a search warrant for a phone or a computer? Does the support provided by the police for “probable cause” fail constitutional protections and / or evidentiary mandates? What if Darrius had clear evidence that Arlene had been instructed never to access his iPhone? What if the motion to suppress had been granted?
If you are charged with the crime of inducing the sexual performance of a child, as defined by Texas Penal Code 43.25, then having an experienced criminal defense attorney is vital to protect your best interests during the prosecution of your case.
For more details on the crimes, sentencing ranges, and monetary fines associated with child sex crime felonies in Texas, read our discussions in:
- Federal Sentencing Guidelines on Federal Child Pornography cases;
- Fighting The Prosecutor On Just Punishment: Evidence On Sentencing And Probation After A Conviction In Texas;
- 10 Things To Know About Felony Child Porn Charges In Texas; and
- Probation in A Federal Child Porn Case: Case Study by Defense Attorney Michael Lowe.
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