Sexual assault is a very serious crime, but it’s also a very serious allegation. It is one of the most troubling and harrowing criminal charges that a person can face. The stigma, the stress can feel severe and overwhelming. The social, psychological, and financial costs of defending a felony like sexual assault are extreme. Facing a charge like this one requires immediate, competent, and skilled legal representation. Sexual assault in Texas is potentially very damaging felony charge because aside from the stigma involved, there is the possibility of prison time. There are staggering criminal penalties that must be challenged head on. If you or a loved one has been arrested, feel like an arrest is looming, or has already been charged and is sitting in jail, you need to consult with and retain a lawyer immediately. I cannot emphasize or stress enough how important it will be for you to get going on your defense as soon as possible. If you find your yourself arrested and charged with a crime like sexual assault, it is crucial to get started immediately on retaining an attorney and defending your case. I have listed many of the reasons why below. The Texas statute on sexual assault discusses sexual assault and sexual assault of a child. This page discusses both, including a discussion of the law and the penalties involved.
Have you Been Arrested for Sexual Assault?
If you have been arrested for sexual assault, or if you think that an arrest may be imminent, there are several things at this early stage that are crucial for your case. For instance, it is important that you do not talk to police. Do not talk about aspects of your case on the phone in the jail. Those conversations are being recorded. Your first conversation about the case should be with a criminal defense attorney. It is so incredibly important to get started on this very early in the process. This is not simply so that your attorney, along with you and your family, can begin to develop a strategy and craft your defense. That is certainly very important, and will be crucial to the outcome of your criminal case. However, early on there are some very damaging things that can happen. Statements that you make at this point can sink your case. For serious criminal offenses, police will make an arrest. After an arrest, they could interrogate you in a windowless room and ask you to tell your story, or tell you that they will go easy on you if you tell your story and answer their questions. Participating in this discussion is likely not a very good idea for your criminal case.
Do not talk to the police. I cannot emphasize this enough. You cannot talk your way out of it. However, you can make statements that create a much more difficult case for your attorney to defend. Investigators know this all too well. Police investigators are skilled and experienced at getting someone to discuss their case. They know how to elicit damaging statements. This is true no matter how you feel about your guilt or your innocence in any given case. If you are innocent or feel like the situation was a misunderstanding, trying to explain yourself will probably only hurt you. Even if you could explain everything to police, the risk is far to great take. When you give statements to police, it may not end well for you. Police will often present themselves as reasonable and thoughtful listeners who are just trying to get “the truth.” Unless something has gone terribly wrong, these conversations with police investigators and the suspect in a crime always occur before a person hires a lawyer.
What is Sexual Assault Law in Texas? Section 22.011 of the Texas Penal Code
The sexual assault statute is located in Section 22.011 of the Texas Penal Code. It falls under the Chapter of Assaultive Offenses, Chapter 22. There are two sections to the statute which outline prohibited conduct. One deals with sexual assault of an adult and one deals with the sexual assault of a child. Here is the language of the statute dealing with sexual assault:
(a) A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus of sexual organ of 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; or
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.
Dealing with a criminal allegation like this is often extremely difficult for a person to deal with because of the intimate nature of the crime. This is especially true if the person is facing a charge under the subsection (a)(2) dealing with sexual assault of a child. Furthermore, the penalties are very serious. A crime of sexual assault is a second degree felony in Texas. That means that a conviction will carry a potential range of punishment of between two and twenty years in the Texas Department of Corrections and up to a $10,000 fine. Moreover, a person may have to register as a sex offender for life. This is certainly a troubling prospect. The testimony of the alleged victim in this case will be crucial. Sexual assault cases can proceed based on the testimony of the victim alone. However, the prosecution will very much want physical evidence or scientific evidence. Physical evidence consists of photographs showing that sexual activity took place. Scientific evidence might consist of DNA evidence of the accused, or blood splatter evidence, or ballistics evidence. There are many considerations for the criminal defense attorney who defends these charges.
The Phases of a Sexual Assault Case
Criminal defense of a felony charge differs from defending a misdemeanor in several ways. Misdemeanors can simply be filed by a prosecutor, but a felony must be indicted. For a case to be indicted, it must go through a grand jury. Grand jury proceedings are closed door and secretive. The only parties that are present are the grand jurors and the prosecutor who is presenting cases to them. Defense attorneys cannot be present. Witnesses can testify in the grand jury and sometimes do. A defendant can testify in a grand jury proceedings in certain occasions as well.
A felony will consist of three phases: pre-indictment, pre-trial, and trial. Sometimes, these cases can be won before indictment. This can be a big victory. When a case is won before indictment, during a grand jury proceedings, that case is referred to as being “no-billed.” When a case is no-billed, it stops there. However, a prosecutor can present the case to the grand jury again because jeopardy has not yet attached. A grand jury must indict all felonies in Texas. If a case is not indicted, you will win the case before the case even gets channeled into a District Court (unless it is refiled by a prosecutor, which is rare).
If your case does get indicted, you will begin to have court settings and plea negotiations will take place between the felony prosecutor and your defense attorney. Depending on the Texas County, your case will end up in a District Court or a Criminal District Court. Criminal District Courts are found in more populous Counties and only handle felony criminal cases. In Tarrant County, for instance, a sexual assault case will wind up in one of ten Criminal District Courts. In Parker County, there are two District Courts. These courts handle criminal cases, but also handle a variety civil cases. Each County is different and handles things slightly differently. During the plea trial stage, the criminal defense attorney gets all of the police reports and everything in the file do the district attorney. In a sexual assault case, there will be witness statements, especially from the victim. There may also be a report from a SANE nurse, if the victim was examined. SANE stands for sexual assault nurse examiner. There are many things in the file that need to be picked apart and analyzed. The goals for both sides at this stage is to resolve the case before having a trial. This is the part of your case where your lawyer tries to get your charge dismissed or reduced.
If your case cannot be resolved at the pre-trial stage, your case will be put on a trial docket and a jury trial will take place.
What is Consent in Sexual Assault Cases?
Consent is a legal defense to sexual assault of an adult. Obviously, consent is not a defense to sexual assault of a child because children cannot legally give consent. Whether there was consent or not is often the cornerstone question of a sexual assault case. If your case goes to a jury trial, your defense may simply be that the alleged victim consented and therefore no crime took place. The sexual assault statute outlines several situations in which consent is not present:
(b) A sexual assault under subsection (a)(1) is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of 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 that the other person is unconscious or physically unable to resist;
Force of violence or threat of violence is often alleged in sexual assault cases. This is where the credibility of the alleged victim is so crucial. I don’t mean to sound crass about this, but essentially someone’s life is on the line. The testimony of the alleged victim will be crucial to the outcome of the case. Everyone deserves a defense, and this This is where the mettle of your defense counsel will show, especially in a trial scenario in which your attorney will be able to cross-examine the alleged victim and test the veracity of their story. Another situation that arises with frequency often involves heavy drinking and the alleged victim is unconscious or passed out. This often involves young people of college age and binge drinking. The testimony and credibility of the alleged victim in these cases is also important, and will also be tested under cross-examination.
The Need for Great Criminal Defense Representation
Facing a criminal charge of the caliber of sexual assault will more than likely have far-reaching consequences for other aspects of your life. The fierce stigma of a sexual assault allegation may be unavoidable. Your reputation and your standing in the community. Your family and your friends could treat your differently as a result. Your privacy will be impacted. The collateral impact of defending your criminal case can take a serious toll on our mental emotional and physical health and well-being. All of these reasons underscore the need to hire great criminal defense representation. Your health, your identity, your reputation is on the line. Your life is at stake. I offer a consultation that is free and confidential. Call me today to discuss your charge and your defense.