In Texas, the age of consent is 17. A person who engages in virtually any kind of sexual activity with a child under 17 may be charged with Sexual Assault of a Child. (For a complete list of prohibited sexual acts, visit our website and select Types of Cases > Sexual Assault of a Child.) There are important exceptions to the age of consent law in Texas and there is at least one way to avoid a formal criminal charge, even if you have technically violated the law.
The most important exception to the age of consent law is when an accused person and a child are 3 years apart in age or less at the time of the sexual act. For example, if Ben is 18 and Gina is 16, Ben is not guilty of sexual assault — even though they engaged in consensual sex and Gina is under the age of 17 at the time of the sex act. In cases like this, birthdates can be important. If in the same example Ben is 19 and Gina is 16, the couple may or may not be 3 years apart in age or less, depending on their birth dates.
If two children under 17 engage in a consensual sex act, the older child is usually charged with Sexual Assault (or Aggravated Sexual Assault of a Child, if the younger child is under 14), unless the children are 3 years apart in age or less at the time of the sexual act. Minor children under 17 are charged as juveniles in Texas. But just as in adult cases, the numerical ages of the people involved are not controlling. You look to the birth dates of the people involved and determine whether they were 3 years apart in age or less at the time of the act. If children are 3 years apart in age or less at the time they engage in a consensual sex act, usually neither is guilty of a crime.
So what if you engage in consensual sex with a child under 17 and you are more than 3 years apart in age? Does that mean you will automatically be found guilty of a felony? The answer is, not always. In Texas, felony cases (including Sexual Assault of a Child and Aggravated Sexual Assault of a Child) must usually go before a “grand jury” to determine whether formal charges and an “indictment” are appropriate. A grand jury is an independent group of 12 citizens who screen cases to determine if there is sufficient evidence to formally charge a defendant. If at least 9 grand jurors vote there is sufficient evidence to believe a person is guilty of a crime, the grand jurors issue a “true bill” and the person is indicted. But grand jury proceedings are held in secret and, although a prosecutor may speak with grand jurors and present evidence relating to cases, no judge, defense attorney or prosecutor may be present when the grand jurors vote. Grand jurors are independent and they don’t have to vote to destroy a person’s life with a formal felony charge if it isn’t the right thing to do.
Grand jurors are usually ordinary people with normal life experiences. They realize that even if a person technically violates the law and gets arrested, it may not be right to formally charge the person with a felony. If a defense attorney in a Sexual Assault case can persuade grand jurors that the younger person involved in the sex act was the “aggressor” or the younger person is probably lying, the grand jury might reject charges or recommend a lower criminal charge. If a grand jury rejects all charges, the case against the defendant is typically dismissed. A defendant and his attorney may use Facebook (or other social media) posts, emails, text messages, photos, witness statements and much more, in order to prove to a grand jury that the younger person involved in the sex act was the aggressor or possibly that the younger person is lying or mistaken.
If you are under investigation for Sexual Assault or Aggravated Sexual Assault and you believe a younger person aggressively encouraged you to have sex or is lying or mistaken about what happened, you should call your lawyer immediately to talk about what kind of evidence you will need to prove your case. Even waiting a short time could cause you to miss a valuable chance to have your case dismissed or protect you from getting arrested in the first place. We serve Houston, TX and the nearby areas.