It is illegal for an adult (someone 18 or older) to have sex with a minor (someone younger than 17), even if the sex is consensual. Those who break the law have committed statutory rape (classified as sexual assault in Texas).
Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term, “statutory” rape. The age of consent, which is 17 in Texas, can vary by jurisdiction. And some states, including Texas, differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.
Though statutory rape does not require that the prosecutor prove force or violence, it is still rape. Of course, rape that does involve force or an assault is illegal in Texas and prosecuted as forcible rape. Assaults of a sexual nature may also be charged under the state’s assault and battery laws (to learn more, see Aggravated Assault Laws in Texas and Sexual Battery: Laws and Penalties).
In Texas, statutory rape includes sexual penetration and sexual contact between an adult and someone younger than 17. The crime is broken into several categories:
Aggravated sexual assault. Aggravated sexual assault involves sexual penetration (however slight) between a minor who is younger than 14 years old and a defendant of any age. This offense is a first degree felony, and penalties include at least five (and up to 99) years in prison and a fine of as much as $10,000.
Sexual assault. Sexual assault involves sexual penetration between a minor who is younger than 17 and a defendant who is three or more years older than the victim. This offense is a second degree felony, and penalties include at least two (and up to 20) years in prison and fine not to exceed $10,000.
Indecency with a child. Indecency with a child involves sexual contact (sexual touching other than penetration, even over clothing, that is meant to arouse or gratify sexual desire) between a minor who is younger than 17 and a defendant who is three or more years older than the victim. This offense is a second degree felony, and penalties include at least two (and up to 20) years in prison and a fine of up to $10,000.
(Tex. Penal Code §§ 12.32, 12.33, 21.11, 22.021, 22.011 (2018).)
State law requires, in addition to the applicable fines and prison time, that people convicted of certain sexual crimes (including some instances of statutory rape) register as sex offenders.
Texas law permits certain inmates (repeat offenders of serious sex offenses) to request physical castration, but doing so will not serve to replace or lessen any punishment specified by law. Under the Texas scheme, adult inmates may request the procedure during their incarceration. To guard against the possibility that the defendant will be coerced into choosing castration in hopes of obtaining a lesser sentence, the defendant and his attorney may not advise the sentencing judge of the defendant's plans in this regard. A defendant asking for this procedure must be evaluated and counseled by doctors, who must conclude that his decision is voluntary and informed. (Tex. Gov't Code § 501.061 (2018).)
Defendants charged with statutory rape have the usual defenses available to all criminal defendants, such as “Someone else committed this crime,” or “The alleged conduct did not occur.”
Texas has a marital exemption for statutory rape that allows consensual sex between a married minor and his or her adult spouse even though their ages would prohibit it if they were not married. The marital defense is a remnant of the marital rape exemption.
Minors are legally incapable of giving consent to having sex; so for example, if Jen, a 15 year old willingly has sex with Tony, her 21 year old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.
But if Jen and Tony are married and living in Texas, Tony need not fear criminal charges for having consensual sex with Jen. This is because Texas has a marital exemption to the state’s statutory rape laws.
However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married.
Named after Shakespeare’s young lovers, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. In Texas, there is a Romeo and Juliet exemption for consensual sex between a minor who 14, 15, 16, or 17, and an opposite-sex partner who is three or fewer years older than the minor.
Texas's Romeo and Juliet exception does not apply to same-sex situations. For example, an 18-year-old male who has consensual sex with a 16-year-old female could be acquitted under the state's Romeo and Juliet defense. But a male 18-year-old who engages in consensual sex with a 16-year-old male could be convicted of a felony, because Texas's Romeo and Juliet exception does not apply to same-sex sexual encounters. (Tex. Penal Code § 21.11 (2018).)
Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the child said that he or she was of age, and that a reasonable person would have believed it. But even if this is true, a defendant cannot rely on a mistake of age—even a reasonable one—to avoid conviction in Texas. As in most states, mistake of age is not a defense in Texas. (Tex. Penal Code §§ 21.11, 22.011, 22.021 (2018).)
Laws can change at any time. If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.
A lawyer can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time) and will know how prosecutors and judges typically handle cases like yours.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated September 5, 2018