Sexual Assault is commonly called “rape” or “date rape.” The crime generally involves a male who is accused of having non-consensual sex (or engaging in a non-consensual sexual act) with another person. One common scenario involves a male who is accused of sexually assaulting a person by force or threat of force.
Another common scenario involves a male who is accused of engaging in what he believes is consensual sex or a consensual sexual act, but the other person later claims he or she was unable to consent, because the person was unconscious, physically unable to resist or (because of some mental disease or defect) was incapable of understanding the nature of the act or the person’s right to say no.
So-called date rapes usually involve a male who engages in what he believes is consensual sex with another person, only later to find out the person claimed he or she was too intoxicated by alcohol or drugs to consent. Cases involving females accused of sexual assault are rare, but they do happen. Regardless of the gender of the accused, sexual assault charges are some of the most severe legal accusations in the Texas justice system, and should only be defended by an expert sexual assault attorney.
About Sexual Assault Charges
In Texas, Sexual Assault is typically a Second Degree felony (except the charge is a First Degree Felony, if the complainant was a person whom the accused was prohibited from marrying or purporting to marry or with whom the accused was prohibited from living under the appearance of being married). Tex. Pen. Code § 22.011.
As a Second Degree Felony, Sexual Assault carries a potential sentence of 2-20 years imprisonment, plus a $10,000 fine and lifetime registration as a sex offender. It is also a “3g” offense, which means a person convicted of the offense and sentenced to prison must serve at least 50% of the sentence before being eligible for parole. It also means that a judge may not place a person so convicted on ordinary community supervision (however, the judge may place the person on deferred adjudication). Tex. Code Crim. Pro. Art. § 42.12 3g.
The prosecution must prove that a person intentionally or knowingly caused the penetration of the anus or sexual organ of another person by any means, without the other person’s consent; caused the penetration of the mouth of another person by the sexual organ of the accused, without the other person’s consent (The age of consent in Houston, TX is 17.); or, caused the sexual organ of another person, without that other person’s consent, to contact or penetrate the mouth, anus or sexual organ of any other person, including the accused. In these cases, the age of consent is taken into account.
Sexual Assault FAQ
Q: Should I talk to the police?
A: Generally, no. While we as sexual assault defense lawyers cannot advise people whom we do not represent, in most cases, we tell clients who are suspected of sex crimes not to speak with police detectives, investigators or officers, who are looking into possible charges. There are two reasons. First, if the police have sufficient evidence or information to charge you with sexual assault or any felony crime, there is usually nothing you can say or do to talk them out of filing charges. (In most cases, it is not even up to the police to decide whether to file a charge. It is usually up to a prosecutor, who must decide whether there is sufficient evidence issue a warrant for your arrest. Next, a judge or magistrate must read the prosecutor’s application for an arrest warrant and decide whether there is “probable cause” to sign off on the warrant.) Second, if the police do not have sufficient evidence or information to charge you with a crime, then it is often a huge gamble to talk to the police and risk giving them additional information to form probable cause.
While people suspected of sexual assault or other sex crimes often believe they can only help themselves by talking to the police and denying all wrongdoing, oftentimes the opposite is true. For example, denying the accusation while also giving police a small amount of background information – let’s say you tell the police how you first met the accuser at Woodrow’s Bar in Houston, but that you were never alone with her – might confirm an important detail in the accuser’s story, which the police may use against you in writing about their investigation. A police report sent to a prosecutor might state, “Suspect admitted that he met with the Complainant at Woodrow’s Bar in Houston.”
Q: What is the age of consent?
A: The age of consent in Texas is 17, for a charge of sexual assault of a child. However, if two people have consensual sex and the younger of the two is under 17 but at least 14, then it is not considered sexual assault of a child if the people are within three years age or less of one another. If the older person is even three years plus a day older, than the proper charge in Texas would be sexual assault of a child. (This is true, even if the sex was consensual.) If the younger of the two people is under 14, the proper charge aggravated sexual assault of a child.
Q: Is it a defense to prosecution that the younger person lied about his/her age?
A: No. But while it is not technically a defense to prosecution that the younger person lied about his/her age, at Scheiner Law Group, P.C. we have had success getting charges of sexual assault dismissed by grand juries when two people had consensual sex, the younger person was 14-17 years of age, and the younger person lied about his/her age to the older person. A “grand jury” is a group of nine to 12 people, who meet and hear details about felony cases and decide whether there is sufficient evidence to continue the prosecutions of those cases. Unless at least nine of the grand jurors vote that there is sufficient evidence to go forward with a case, the grand jury foreperson issues a “no bill” and the charge is usually dismissed. Legal rules of the Texas grand jury system are very technical and it is always a good idea to consult with an experienced criminal defense attorney, particularly an attorney with experience successfully defending against sexual assault charges, before testifying or presenting evidence to a grand jury.
Q: Could I be charged with sexual assault, if I have sex with a person who is drunk or under the influence of drugs?
A: Yes. If a person is unable to consent to sex for any reason, then police or prosecutors may conclude the sexual act was non-consensual and file one or more charges of sexual assault. Other sex crime charges may be filed as well. However, a criminal charge for sexual assault does not always lead to conviction and may be contested in court.