Rape

The rape statute in Texas is called Sexual Assault and can be found in Section 22.011 of the Texas Penal Code. Rape in Texas is broadly defined as sexual intercourse or sexual penetration without the other person’s consent. There are various ways to show a lack of consent—physical force or violence, threat of violence, with drugs and/or alcohol, to name several. Rape is one of the most serious criminal accusations that a person can face, and it is a criminal charge that is very difficult to deal with on many levels. The criminal penalties can be very severe. A conviction for rape is a felony in Texas, and depending on the facts of the case, it can be either a first degree or second degree felony. Confronting a rape charge and building a defense should obviously be taken very seriously. It is important to contact a criminal defense lawyer and begin structuring your fight. For a variety of reasons, false accusations can and do happen. There are defenses to rape and sexual assault. This page breaks down and discusses different aspects of defending a rape charge, including defenses, consent, false accusations. 

What is the Texas Law on Rape? 

As discussed above, rape is sexual intercourse of a person, or sexual penetration of a person, by force or threat of force, without that person’s consent. What consent means and showing consent or lack of consent will be discussed below. Here is the statutory language from Section 22.011:

22.011. Sexual Assault.

(a) A person commits an offense if the person:

(1) intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ or another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

There are three ways in which the State of Texas can charge a person for rape. The first way occurs if a person penetrates the sexual organ of another by any means, this includes using a foreign object, without that person’s consent. The second way is for the person to penetrate someone else’s mouth with the person’s sexual organ without their consent. The third way occurs if a person causes the sexual organ of another to penetrate that person’s mouth or sexual organ. Any of these must be done either intentionally or knowingly. “Intentionally,” or acting with intent, means that the result of what happened is a person’s conscious object or desire.[i] “Knowingly” means that a person has the knowledge, or is reasonably sure, that his behavior will cause a certain result.[ii]         

What are the Possible Penalties?

No matter what the facts of your case turn out to be, if you are charged with rape, the punishment for a conviction are severe. There are defenses, of course. Those will be discussed below. However, rape is a serious felony charge. A criminal allegation of rape is a second degree felony. A second degree felony carries the following punishment:

An individual adjudged to be guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years[iii]

and

In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.[iv]       

What is Consent?

Consent is a very important legal concept to any allegation concerning rape. Consent basically means permission or agreement to do something. As it pertains to rape, consent means permission or agreement between at least two people to engage in sexual contact, or sexual intercourse. Whether consent was present or whether consent was not present can be everything to a person’s defense. Often, in a rape allegation, the victim and the defendant are telling two different stories. The battle between the prosecutor and the defense attorney to establish whether or not there was consent is very, very important. The Texas Penal Code defines consent a little differently:

“Consent” means assent in fact, whether express or apparent.[v] 

 This definition is more encompassing than simple permission or agreement. This is because “apparent consent” considers the real-world circumstances. People don’t always give affirmative words of consent, but instead take cues from each other’s behavior and go from there. A person doesn’t always just say “Okay, let’s have sex now.” Instead, consent must be determined from all the surrounding circumstances in a potential rape allegation. The Texas Penal Code tries to clarify eleven circumstances in which consent is not present:[vi]

(1) the actor compels the other person to submit or participate by the use of physical force or violence;

(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;

(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;

(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable or either appraising the nature of the act or of resisting it;

(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;

(6) the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge

(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute them;

(8) the actor is a public servant who coerces the other person to submit or participate;

(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;

(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as a spiritual advisor;

(11) The actor is an employee of a facility[vii] where the other person is a resident, unless the employee and the resident are formally or informally married to each other under Chapter 2, Family Code.

There are many different avenues for a prosecutor to argue lack of consent in a rape allegation. Lack of consent in the classic sense is use of physical force or violence. Threatening violence can also potentially be lack of consent, if the person being threatened believes that those threats can be carried out. Other ways to negate consent involve authority figures such as public servants (police officers), members of the clergy, and medical professionals compelling someone to engage in sexual conduct.     

How Do Drugs and Alcohol Impact Consent?   

Many rape charges, especially among young, college-aged kids, involve drugs and alcohol. If a person is unconscious, they cannot resist. However, this is a fact that is often in dispute, and nothing can be assumed. A very thorough investigation must be conducted into all pertinent circumstances. Drugging can occur with “date rape drugs” such as rohypnol (aka “roofies”), ketamine, GHB.[viii] Other drugs that have been used to incapacitate someone are various benzodiazepines.[ix] However, many rape cases involve heavy drinking by both parties, in which there is a lot of voluntary drinking on both sides. Some researchers have concluded that alcohol-related rape is the most common scenario of sexual violence against college-aged women.[x]             

What are Some Defenses to a Rape Charge?

There are different ways to go about setting up a successful criminal defense for a rape allegation. These will depend on what happened, and what is alleged to have happened, in the specific case at hand. Some, or all, of these, defenses might be available in a specific case, or none of them may be. There may be other defenses available as well. A criminal defense lawyer must analyze the case and choose the best path toward a favorable result. Here are some defenses that are more familiar defenses in criminal cases:

1. Discrediting the Allegations

For a variety of reasons, sometimes the accuser can make false allegations of rape and sexual assault. There can be many reasons for false allegations to occur, such as jealousy, anger, despair, or vengeance. Regardless of whether those involved have a long dating history, or a short one, strong and powerful emotions are often involved. Considering all the actual incidence of rape, as well as the number of rapes that go unreported, this can be a very difficult and sensitive topic. However, the Duke Lacrosse rape scandal of 2006 shows how truly serious false accusations can be.[xi] They can take on a life of their own and ruin people’s lives and reputations. Fortunately, the truth finally emerged, but they don’t always.

2. Showing Consent

If a person can demonstrate that there was actual or apparent consent, or attack the accuser’s claim of lack of consent, then there is no rape. As listed above, there are many ways for the state to show that there was no consent—by force, or threat of force, or unconsciousness, and several others. However, there can be ways to attack the allegation of lack of consent. For instance, if the two people have been dating, and have a history of having rough, consensual sex, this can be evidence showing that on the incident in question, although there was force used, and even violence, that it was consensual force. Another example of apparent consent is if the accuser asked for the person to get a condom. This does not in itself show a lack of consent, but can help demonstrate that the person had a reasonable belief that there was consent.  

3. Not Enough Evidence 

The amount and the quality of evidence varies from case to case. Sometimes in rape cases there is scientific evidence such as DNA or physical evidence of sexual abuse or sexual trauma. The quality of scientific and physical evidence can vary as well. What if there is DNA of multiple other people? What if the evidence of physical abuse is inconclusive, or inconsistent with an allegation of rape? Other than the victim, rape cases generally do not have any other witnesses. These scenarios are intimate and usually occur in private. The accuser may be unreliable, or has lied about this in the past. The accuser may have criminal convictions that come out when they testify. If the only evidence in the case is the testimony of the accuser, and the accuser is unreliable for one of these reasons, or for other reasons, that can be insufficient evidence. That can fall short of what it should take to permanently alter the course and orbit of someone’s life.    

What are Texas Rape Shield Laws?

The rape shield law is from the Texas Rule of Evidence that restricts and govern the discussion of the past sexual behavior of victims of sexual assault during trial. Texas’ rape shield law is found in Rule 412 of the Texas Rules of Evidence. It only applies in sexual assault cases. Every state in the country, as well as federal system, has a rape shield law on the books. Discussion of “past sexual behavior” is limited to only three specific situations.

Evidence of “past sexual behavior” of the victim is admissible when it is brought by the defendant to show: 

To rebut scientific or medical evidence offered by the State

To show Consent

To show Bias or Motive

If the defendant tries to get into the past sexual behavior of the victim, there is a specific procedure that must be followed. The defendant must inform the court, and the court will then decide outside the presence of the jury whether the jury can hear the evidence.

What Is at Stake?

If a rape and sexual assault case goes all the way to a jury trial, the person is in a real sense on trial for their life—prison time, lifetime registration as a sex offender, the indelible stigma of a rape conviction. If there is not enough evidence, or it is a close call, the jury must be reminded and reminded again about the life-changing consequences of convicting a person for this crime. They must be reminded and reminded again that their burden to say “Not Guilty” unless guilt is proven beyond a reasonable doubt. They must be indoctrinated in how incredibly high that burden truly is.                             

 

[i] Texas Penal Code Sec. 6.03. Definitions of Culpable Mental States. 6.03(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. 

[ii] Id. 6.03(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.  

[iii] Texas Penal Code Sec. 12.33.

[iv] Id.

[v] Texas Penal Code Sec. 1.07(a)(11).

[vi] Texas Penal Code Sec. 22.011(b)

[vii] “Employee of a facility” means a person who is an employee or a facility defined by Section 250.001, Health and Safety Code, or any other person who provides services for a facility for compensation, including a contract laborer.

[viii] See https://en.wikipedia.org/wiki/Date_rape_drug

[ix] Popular benzodiazepines include: Xanax, Valium, Ativan, Librium

[x] See http://www.tandfonline.com/doi/abs/10.3200/JACH.57.6.639-649

[xi] See https://en.wikipedia.org/wiki/Duke_lacrosse_case

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