Indecent Assault is a criminal offense that became law on September 1, 2019. Texas lawmakers viewed this new statute as resolving a disparity in the law. The Indecent Assault law, now codified as Texas Penal Code Section 22.012, is a result of what law enforcement believed to be a disconnect between criminal conduct that was going unpunished, that existing laws could not punish and regulate. Prior to September 2019, there was a gap that existed in the law between very severe penalties and very light penalties. On the heavy end of the spectrum, there is Sexual Assault. Sexual Assault is a second degree felony that at the extreme can put someone away for two decades of prison time. On the light end of the spectrum, there is Assault by Contact. Assault by Contact is a low level misdemeanor that is the same level of offense as a speeding ticket.

Texas Senate Bill 194

The 86th Texas Legislature responded by passing SB 194 to create Indecent Assault and establish a level of criminal penalty that would occupy the space between these two criminal offenses. The Texas Legislature established a Class A misdemeanor. Before Indecent Assault became law, there could be no arrest for Assault without bodily injury, and no Sexual Assault without non-consensual sexual penetration that amounts to rape. Indecent Assault has been called the groping law and aims to criminalize and prosecute inappropriate touching that is sexual in nature. Before, when there was a complaint of inappropriate sexual touching, police and prosecutors were limited to charging a person with Assault by Contact, a crime that cannot result in jail time, and has a maximum of a five hundred dollar fine.      

What is Indecent Assault? Texas Penal Code Section 22.012?

Indecent Assault essentially penalizes touching that the person being touched person does not want, and also penalizes a person compelling someone else to touch them in a manner that the person compelled to do the touching does not want, and does not consent to. The law criminalizes any touching that is considered inappropriate, outlined in the statute, in sensitive areas of the body: the genitals, breasts, or anus. The law also criminalizes a person compelling someone to touch them on the genitals, anus, or breasts. The law also makes illegal to expose or attempt to expose the sensitive parts of a person’s body: the anus, buttocks, breasts, female areola, or anywhere on the genitals, by removing or attempting to remove their clothing. Lastly, the law criminalizes a scenario in which someone compels someone to touch blood or touch other bodily fluids such as semen, urine, or feces. As mentioned above and discussed below in greater detail, the crime of Indecent Assault is a Class A misdemeanor.  

What Does It Mean to Consent?

For there to be a violation of any of these provisions of the Indecent Assault law, the touching or exposing must be without the person’s consent to do so. If the person consents, there is no crime committed. Consent is a legal term of art that means assenting, allowing or approving the touching. Consent does not have to be a direct statement such as “I now allow you to touch me,” and this is rarely the case. Consent does not have to be words and is a question of context. Consent can be apparent which means that the context of the encounter is very important. This means that the behavior, the interaction, the history of interaction can all be very important to determining if there was consent. This is where skilled lawyering is very important to the defense of an Indecent Assault case.  

What Are the Penalties?

Indecent Assault is a Class A misdemeanor, which is the highest misdemeanor grade. The offense is one grade down from felony level. Class A misdemeanors range in punishment of up to a year of county jail time and up to a $4,000 fine. There is no potential for prison time with a misdemeanor charge, but there is still a risk of substantial jail time. Probation is available as a potential resolution, and there are two kinds of probation in Texas. There is straight probation and deferred probation. Straight probation involves a person receiving a criminal conviction, while deferred does not. Deferred Adjudication entails probation without a conviction, and if probation is completed and all conditions are satisfied, the case will be dismissed. Probation will involve reporting once a month to a probation officer, and could also entail classes and fines and community service hours. Depending on the case, there may be other conditions as well.

What are the Costs of a Conviction?

If probation is the outcome, Deferred Adjudication is definitely preferable because a criminal conviction can negatively affect the future and should be avoided if at all possible. A conviction for any Assault charge, and especially Indecent Assault, is not a reality that anyone wants. A conviction will negatively impact the future. It will show up on background checks like an unwashable stain, and it can create hurdles to getting a good job and finding desirable housing.     

What Were the Penalties Before Indecent Assault?  

Before Indecent Assault, inappropriate touching was only a Class C Assault by Contact, codified in Texas Penal Code Section 22.01(a)(3). Like Indecent Assault, this statute penalizes unwanted physical contact, but it is more vague and unclear what exactly this conduct might be. Indecent Assault cleared this up. It is a much more specific statute, with the particularities that are discussed above. The Class C offense in 22.01(a)(3) only describes contact that is provocative or offensive. This is an offense that carries no possibility of any jail time and a maximum fine of $500. For behavior that constitutes Indecent Assault, there are significantly more severe penalties if the victim is under 17 years of age. Indecent Assault of a person under 17 is called Indecency with a Child, and that is a second degree felony. Sexual Assault, the Texas statute on Rape, requires sexual penetration without consent. Sexual Assault, discussed in more detail below, is a second degree felony and ranges in punishment between two and twenty years in prison. Whatever the charge, whether it is a misdemeanor or a felony, these cases are fact-specific and requires a skilled criminal defense attorney to combat and defend them.           

Is Indecent Assault a Registerable Offense?

Certain criminal offenses have consequences that go further than potential prison time or fines, requiring a person to register as a sex offender. These rules are governed by Chapter 62 of the Texas Penal Code. The Sex Offender Registry, run by the Texas Department of Public Safety, requires a person convicted of, or placed on deferred adjudication for one of these registerable crimes to enter the sex offender system in whatever County in Texas they live in. These offenses, like Sexual Assault, are directly sexual in nature, or like Aggravated Kidnapping, are indirectly sexual in nature—if the person’s intent after kidnapping was to commit a sexual crime. Although Indecent Assault involves sexual contact, a conviction or a deferred adjudication is not a criminal offense requiring sex offender registry. The crimes that require registration are Continuous Sexual Assault of a Child, Sexual Assault, Aggravated Promotion or Prostitution, Possession of Child Pornography, and others. For a complete list, See Chapter 62 of the Texas Penal Code.    

How Does Someone Get Arrested?

In an Indecent Assault accusation that leads to a case, an arrest can come immediately at the scene, or it can come afterward. For a standard Assault case or especially an Assault Family Violence charge, an arrest will typically follow at the scene because often both people live in the same home. For an Indecent Assault case, the phone call to the police and the report may be removed from the incident itself. The person being accused may have left. For instance, someone who feels like they were violated or touched inappropriately may wait until the person has left to call the police, and this might create a gap between the incident and an arrest. This creates an active arrest warrant. Police might take some time to investigate, call the accused person, make other inquiries, or have the reporting person come in and make a written statement. When this happens, an arrest warrant may be hanging out there and a person who has an arrest warrant may not even realize it until law enforcement arrives at their work or their home and puts them in handcuffs, and this can create additional problems.      

What Happens After Arrest?

After a person gets arrested for Indecent Assault or any other crime, they will get taken to the jail in the city where the warrant is. For instance, if the warrant is from

Grapevine, the person will go the Grapevine Jail. If the warrant is from Fort Worth, they will go to the Fort Worth Jail. If this is a city in Tarrant County, after going to a city jail, the person will then get transferred to the Tarrant County Jail in downtown Fort Worth. At the Tarrant County Jail, the person who gets arrested will be arraigned, enter a plea of “Not Guilty.” If there are bond conditions, those will be set by the Magistrate Judge at this time. On an Indecent Assault case, bond conditions may involve a no contact order, preventing any contact with the person who made the complaint, and possibly a protective order. At this time, a bond amount will be set. Indecent Assault is a Class A misdemeanor, so the bond may be between $500 and $1500. Alternatively, a PR bond may be set. PR stands for “personal recognizance,” which means that no money is required to post bond, and the defendant is released on the promise that he or she will appear in court. To be sure, this entire process of getting arrested, going to jail, waiting to be transferred, then transferring to Tarrant County, then arraignment, bond conditions, making bond, and waiting to get out of jail, takes a substantial amount of time.          

What Does Court Entail?

Although defensive strategy will be unique to each case, here is how the process will go. After finally getting released from jail, the person will need to see about retaining an attorney to combat the case. There are bond conditions that must be followed and these can be changed. There may be a protective order in effect by order of the Magistrate. The protective order may expire in 30 days or 60 days. In a few weeks or a month, the first court date will take place. There will be several court dates or settings that the defendant will have to attend. The first one will probably be a month or six weeks after getting released from jail, and six weeks apart after that. The purpose of these settings is for defense attorneys and assistant district attorneys to try to resolve cases. Most cases take two or three or more court settings for a resolution to be reached. Each case is different and some are more involved or more difficult to resolve than others depending on a variety of factors. Some of these factors may include how slight or severe the conduct seems to the assistant district attorney, and the wishes of the victim. If the case does not get resolved during plea negotiations, the case will be set for trial. 

What Does Trial Entail?

If an Indecent Assault is set for trial, the State must present its case and prove to a jury that the defendant is guilty beyond a reasonable doubt. To do this, prosecutors will present several witnesses to give testimony. These witnesses will be one or more police officers and the person that made the allegation. Whoever the victim is has to testify. This is because of the Confrontation Clause. It is a fundamental principle of our Constitutional Rights. The trial begins with jury selection. The process of jury selection is not about selection. It is about elimination. Potential jurors are eliminated for bias toward the prosecution or the defense, and are eliminated for strategic reasons as well. Once a jury of six is reached, opening statements from both the prosecution and the defense. After opening statements the meat of the trial begins, and this is the testimony from the witnesses. As noted above, the accuser must testify. Police officers involved in the case will likely testify as well. The defense can call witnesses after the state’s case closes. After evidence closes, the judge will read the jury charge to the jury, which has the law that the jurors must follow when they deliberate. After this, closing arguments will take place, and then the jury will go back to the jury room to come to decide.   

Related Offense: Assault

Assault is codified in Texas Penal Code Section 22.01. Assault and Indecent Assault are both Class A misdemeanors. Both criminal charges also involve unwanted physical contact. The difference between the two is the nature of the contact. While Indecent Assault criminalizes groping or unwanted touching, Assault criminalizes one person physically injuring another.  Assault of a family member is called Assault Family Violence, and a finding of Family Violence intensifies the collateral consequences of an assault, affecting the ability to seal court records, and impacting the right to buy and keep firearms.                     

Related Offense: Sexual Assault

Sexual Assault, Texas Penal Code Section 22.011, is a significantly more serious charge than Indecent Assault. Although it is related, Sexual Assault is at the extreme end of the spectrum. Importantly, a person can be charged with both Indecent Assault and Sexual Assault if both crimes fit the conduct. Both Sexual Assault and Indecent Assault require that the State prove an intent to gratify a sexual desire, and both crimes require that the State prove a lack of consent. As noted above, the reason why the criminal offense of Indecent Assault even exists is to fill a gap in the law. Sexual Assault requires an allegation of penetration. This means penetration of the vagina, anus, or mouth, without the person’s consent. Sexual assault is a second degree felony, and the punishment range for this level of felony is between two and twenty years in the Texas Department of Corrections.       

Related Offense: Aggravated Sexual Assault

Aggravated sexual assault requires the same kind of allegations as sexual assault. That is, causing penetration, or causing someone else to penetrate the person against their will, without consent. The difference is, aggravated sexual assault involves violence, the threat of violence, or actual violence that causes serious physical injury. If the violence is only in threat, it must makes someone fear for their life or for their safety. Aggravated sexual assault is a first degree felony, and this level of felony carries a range of punishment of between five to ninety-nine years in prison. The range of punishment bumps to twenty-five years to life if the victim is under six years old, or the victim is under fourteen years old and there is serious physical injury is involved. Call our experienced Fort Worth criminal defense lawyer for a free consultation today.