Indecency With A Child

The criminal charge of Indecency with a child is a very serious accusation in Texas. This is a crime that involves either “sexual contact with a child,”[i] or “exposing”[ii] certain parts of the person’s body or the child’s body with the “intent to arouse or gratify the sexual desires of any person.”[iii] According to the criminal statute, a child in Texas means any person under the age of 17. If you or a loved one is facing an Indecency charge, it should not come as a shock that this charge is prosecuted as a felony. It is one of several allegations that people refer to very disparagingly as “child molestation.” It is undoubtedly treated and pursued very seriously by law enforcement. This can be highly stressful ordeal for people and can rip families apart. If you are facing this charge, begin planning your defense immediately.    

What are the Implications for You?

A conviction for Indecency with a child bears heavy and widespread implications for your future and your life. There are, of course, the criminal consequences of a felony conviction. Felonies carry potential prison time. However, there are also other potentially very harsh and life-altering aspects to a conviction. For one, there is the sobering stigma and infamy of sexual offenses involving children. Second, there is potentially having to register in the Texas sex offender program for life[iv]. If you are facing this charge, it is very important to start your criminal defense as soon as possible. Sexual offenses involving children are very negatively impactful, and it is crucial to consult and retain an attorney who will defend you with the upmost hard work and skill.  

What are the Criminal Penalties?

A criminal conviction for Indecency with a child carries weighty criminal and statutory penalties. This is because, as was noted above, this is a felony charge. As discussed above, there are wide ranging consequences that go beyond jail time or prison time that can accompany a criminal conviction. The Indecency statute identifies two ways to get charged and potentially convicted for Indecency, and there are likewise two different level of punishment. Those two ways are engaging in “sexual contact”[v] with a child and/or exposing the person’s [or the child’s] anus or genitals with the intent to arouse sexual desire of anyone. Here are the two punishments:

  • Engaging in sexual conduct with a child is a second degree felony
  • Exposure of sexual organs with intent to gratify is a third degree felony 

Second degree felonies carry a range of punishment between two and twenty years in the Texas Department of Corrections, and up to a $10,000 fine. Third degree felonies carry a range of punishment between two and ten years in the Texas Department of Corrections, and up to a $10,000 fine. However, the Texas Court of Criminal Appeals has held that one encounter can allow a conviction for both sexual contact and exposure, and this does not violate double jeopardy.[vi] The statute is reprinted in full and aspects discussed below. 

What is the Law?

The Indecency statute is listed in the Texas Penal Code in Chapter 21. This chapter is entitled “Sexual Offenses.” As discussed in the above section, there are two ways to be charged for Indecency, and there are two different penalties. For a specific about the specific facts of your case, call my office and we can have a discussion at length about your situation, the facts and circumstances of your case, and all other aspects of your defense. Here is the language of the statute:

Section 21.11. Indecency with a Child 

  • A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person:
  • engages in sexual conduct with the child or causes the child to engage in sexual contact; or
  • with intent to arouse or gratify the sexual desire or any person:
  • exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or
  • causes the child to expose the child’s anus or any part of the child’s genitals.

(b-1) It is an affirmative defense to prosecution under this section that the actor was the spouse of the child at the time of the offense.

  • It is an affirmative defense to prosecution under this section that the actor:
  • Was not more than three years older than the victim and of the opposite sex;
  • did not use duress, force, or a threat against the victim at the time of the offense; and
  • at the time of the offense:
  • was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
  • was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.
  • In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
  • any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
  • any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
  • An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.           

What Are Some Defenses? 

Although it is a very serious allegation, it is important to keep one thing in perspective while you are caught up in the middle of this tumultuous situation. It is important for you to realize that you (or a loved one) have only been charged with a crime at this point. There are various defenses to Indecency with a child, and there are avenues to combat these allegations. Whether or not a particular defense applies in your case depends on the facts of your case. For analysis of that, you need to contact a criminal defense lawyer who is skilled at handling cases of this caliber. Often, more than one of these defenses and tactics can be employed. For instance, thoroughly investigating the background and credibility will happen in every single case. Here are some ways to defend these charges:

The Touching Sexual Contact was Accidental

According to the Indecency statute, the “sexual contact” must be committed intentionally with the intent to gratify or arouse the sexual desire. A huge part of these cases is the discrepancy in testimony of the accuser as well as the person charged. What exactly happened? This, obviously, is the crucial question in these prosecutions for lawyers on both sides to determine. Often, there is not video or audio evidence. Often, there are no other witnesses to the alleged incident either. Therefore, much of this is going to come down to the word of the accuser against the word of the defendant. If the defendant has priors and cannot testify at trial, then this can still be a viable and winning defense. It will depend on the specific circumstances to evaluate whether this is available. Many times, in a situation in which there is no witnesses, the child will undergo a medical exam by a SANE nurse[vii] to determine if there is any physical evidence of abuse. However, for evidence of physical abuse to arise the child must get evaluated quickly.     

There was Not Intent to Arouse   

This defense is closely related to the accidental defense. Texas Penal Code statute 21.11 requires intent to arouse the sexual desire for a crime to have been committed. Parents will touch the private parts of their children for bathing and dressing in the course of raising children. As concerned members of a society that protects children, we understand this to be a natural part of parenting and raising young children. Only when there is intent to arouse sexual desire is there a crime. The sexual desire aroused can be the person charged or a third party. Intent can be a tricky thing to prove, and basically means “conscious objective or desire,” but these are also elusive words[viii]. Unless a person explicitly makes a statement reflecting their intent, intent is something ambiguous that is gathered from circumstances. Not shockingly, attorneys for the state and the defense will come to different and opposing conclusions about intent.      

The Accuser Lacks Credibility and Reliability

Criminal cases like Indecency with a child, especially those that look to be headed to trial, require a great deal of investigation on the part of the defense. Many times, the evidence in this case consists solely of the testimony of an accuser. Often the accuser is very young. So, the chances someone gets convicted of a life-altering crime depends tremendously on the credibility of the accuser. The importance of discrediting the accuser cannot be overestimated. If it can be demonstrated that the child has bias or motive to harm the person accused, or has been untruthful in the past, this will be very significant to the defense. To do this, a criminal defense lawyer will need more information than is provided by the district attorney in the discovery process. Items that a criminal defense lawyer will want to obtain are: the accuser’s medical records and school records, as well as emails and social media activity. Investigating Facebook, twitter, Instagram, snapchat can turn up very surprising and helpful things about a person. The criminal defense lawyer will want his investigator to interview key witnesses in the case as well as the accuser’s friends and family and classmates. All witnesses who will testify at trial against the accused will need to be thoroughly investigated.            

The Accuser is Not Legally a Child

The accuser or victim must be under 17 years old at the time of the offense for a crime to occur. This may seem obvious, but there can be something to this if the victim is on the cusp of turning 17 and the alleged event cannot be pinned down to an exact day. Also, there is a legal defense if the accuser or victim and the accused are both within 3 years of age of one another. This defense has been referred to as the ‘Romeo and Juliet’ defense. It was enacted because people aged 18 and 19 were getting criminally charged for Indecency when the victim was 15 or 16 and the two were dating at the time. The fundamental unfairness of this considering the potentially life-changing consequences of the charge caused this change in the law. The Romeo and Juliet bill passed in 2011. For this law to apply, three criteria must be met: the victim’s ages must be within 3 years of one another, force or threat of force cannot have been present, and the accused is not required to register as a sex offender for life under Chapter 62 of the Texas Code of Criminal Procedure.

What Does Registering as a Sex Offender Mean?

The pain and stigma of having to register as a sex offender is one of the many reasons it is important to fight your case very aggressively to avoid conviction. People who are convicted of sex offenses in the State of Texas must register as a sex offender in Texas. There are very serious and negative consequences that stem from this, including the public scrutiny and court ordered counseling. If you are ordered to register as a sex offender because of a criminal conviction, you must register for life. This is quite harsh, although there are now avenues to deregister as a sex offender. If you are determined to be eligible for de-registering, you will first have to apply. Then you will be evaluated by a licensed sex offender treatment provider to determine if there is a threat that you will re-offend. After you complete this risk assessment, you can then petition the sentencing court for de-registration. If you have any questions about this or any other aspect of your case, please call my office to set up a consultation.           

[i] Texas Penal Code 21.11(a)(1)

[ii] Texas Penal Code 21.11(2)(A)

[iii] Id.

[iv] Texas Code of Criminal Procedure Chapter 62. Sex Offender Registration Program

[v] Texas Penal Code 21.11(a)(1)

[vi] Loving v State, 401 S.W.3d 642, 643 (Tex. Crim. App. 2013).

[vii] SANE stands for Sexual Assault Nurse Examiner. These people are registered nurses who conduct sexual assault forensic examinations and also testify in court on behalf of the State of Texas. For more on the SANE program, see: https://www.texasattorneygeneral.gov/victims/sane.shtml.

[viii] Intent is the most culpable mental state in the Texas Penal Code. See Texas Penal Code Sec. 6.03. Definitions of Culpable Mental States: “(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.”

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