Texas Sexual Assault and Battery Laws

Texas’s sexual assault law makes it a felony to have sex without the other person’s consent. Less serious nonconsensual sexual contact, known in many states as sexual battery , is prosecuted in Texas as “indecent assault.” Sometimes, even when someone agrees to sexual activity, the defendant can still be guilty.

By , Attorney

Under Texas law, sexual assault is the legal term for crimes commonly referred to as rape. Various forms of sexual penetration without consent are sexual assaults in Texas. Less serious nonconsensual sexual contact, often called "sexual battery" in other states, is considered "indecent assault" in Texas. A conviction for sexual assault has serious consequences, including prison time and sex offender registration.

Sexual Assault under Texas Law

A sexual assault occurs whenever the defendant does any of the following acts without consent: penetrates someone's anus or sexual organ by any means (for example, with a penis, finger, or object); penetrates someone's mouth with a sexual organ (which can include oral sex on a woman without the other person's consent); or causes someone's sexual organ to penetrate or contact another's mouth, anus, or sexual organ (which could include the defendant's). When the victim is a child (under 17 in Texas), the following acts are also sexual assault: causing the child's anus to contact someone else's anus, sexual organ, or mouth; or causing the child's mouth to contact another's anus or sexual organ.

"Consent" Has Special Meaning

Although consent generally means to agree, sexual conduct can be illegal even when the other person doesn't object, because, under the law, some people are considered unable to consent. Under Texas law, a person doesn't consent under the following circumstances:

  • the defendant uses or threatens to use physical force against the victim or someone else, or otherwise coerces the person to submit to the sexual contact
  • the other person hasn't consented and the defendant knows the person is unconscious, physically unable to resist, or is unaware the assault is occurring (such as when the person is asleep, passed out, or medically unable to move)
  • the defendant knows that due to a mental disability, the other person can't understand the nature of the sexual act or try to stop it
  • the defendant drugs the other person without the person's knowledge, which makes the person unable to know of or resist the sexual activity
  • the defendant is a public servant (such as a police officer) and coerces the person to participate
  • the defendant is in a position of trust or authority, such as a doctor, caregiver, coach, tutor, or member of the clergy who uses that position to get the person to participate
  • the defendant is an employee of a facility (such as a nursing home or mental health institution) where the other person is a resident
  • defendant is a medical professional performing an assisted reproduction procedure (implanting an embryo, for example) who uses reproductive material (such as sperm, eggs, or embryos) from a donor, knowing the other person hasn't expressly agreed to use the material from that particular donor.

Sex With a Willing Participant Under 17 Can Be a Sexual Assault in Texas

Under Texas law, any sexual contact described above is sexual assault if it occurs with someone under 17. The law doesn't require that the acts occur without consent: Even if the young person wants to participate in the sexual activity, it's still sexual assault. This is true even when the defendant doesn't know the minor is under 17. This type of offense is commonly called statutory rape, and is based on the assumption that children are too immature to fully understand what they're consenting to.

Sex Between Young People Might Not Be Criminal

A person is not guilty of sexual assault on a minor, however, if the defendant can prove that the minor is older than 14 and no more than 3 years younger than the defendant. This defense, available in many states, is commonly known as the "Romeo and Juliet" defense. It's designed to protect young people from being prosecuted for having sex with their willing peers. But as of June, 2022, this defense remains available in Texas only when the defendant and victim are of the same sex: Texas is the last state to penalize same-sex encounters between consenting young people. Sex with someone under 17 is also not a crime if the accused is married to the minor (in Texas, 16-year-olds can marry if they are emancipated). These defenses don't apply when the defendant is married to someone other than the victim. (See the "Punishment" section below for further explanation of this unusual rule).

Indecent Assault

Indecent assault is similar to what many other states call sexual battery. It's less serious than sexual assault, and includes touching someone's breasts, genitals, or anus (or causing such intimate body parts to touch another) without consent. It also includes exposing or trying to expose another person's intimate parts or causing the person to make contact with another's bodily fluids. These acts are indecent assaults when committed to arouse or gratify the defendant's or another person's sexual desires.

Indecency With a Child

Any sexual contact with someone under 17 is considered "indecency with a child." As with sexual assault, a person is not guilty of the offense when the sexual contact is not forceful, and occurs with someone of the opposite sex who is no more than three years younger than the accused.

Punishment

Sexual Assault is a second-degree felony, punishable by 2 to 20 years. However, it's a first-degree felony, punishable by 5 to 99 years or life in prison when it's an "aggravated" sexual assault. A few examples of aggravated sexual assault include assaults committed with other people, assaults committed with a deadly weapon, and assaults committed on people under 14 or on people who are elderly or disabled.

Sexual assault is also a first-degree felony when the defendant is married to someone other than the victim at the time of the assault. Although this rule punishes married people more severely than unmarried people, Texas courts have upheld it, reasoning that married defendants might appear more trustworthy to would-be victims. (See Lopez v. State, 600 S.W.3d 43 (2020); State v. Estes, 546 S.W.3d 691 (2018).) One kind of sexual assault—using unauthorized donor material during reproductive assistance procedures­— is a "state jail felony," punishable by up to 180 days in jail.

Indecent assault is a Class A misdemeanor, punishable by a fine or up to a year in jail, or both. But indecency with a child is a second-degree felony punishable by 2 to 20 years in prison.

Sex Offender Registration

People convicted of sexual assault or indecency with a child (and many other types of sex offenses) must register as sex offenders. The registration requirement doesn't apply to indecent assaults on adults. Registration is often the most serious consequence of a sex crime conviction because the person's name, photograph, address, date of birth, and convictions (including the ages of the victims) appear on the internet and can be accessed fairly easily by anyone. What appears online never completely goes away, and the details of a person's offense, even when committed many years ago, will limit options for employment and housing, and negatively affect the person's reputation. Failing to register or comply with registration rules is punishable as a felony.

Talk to a Lawyer

If you're facing charges of sexual assault, indecent assault, indecency with a minor, or any other sex offense, consult with a lawyer right away. Make sure to choose a local attorney with several years of criminal defense experience. Local, experienced defense lawyers will know many of the prosecutors and judges where your case will be heard. They'll know whether any defenses will apply, or whether a favorable plea deal is possible (such as one that avoids a conviction requiring sex offender registration).

Tex. Penal Code §§ 21.11, 22.011, 22.012, 22.021; Tex. Code Crim. Proc. Art. 62.001; Tex. Health and Safety Code § 841.002

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