Sex between adults and minors is a very highly publicized crime in the State of Texas. It seems every week there is a new teacher or coach who was carrying on a sexual relationship with a student. We often see adults in their 20′s  & 30′s who have been charged with having an illicit sexual relationship with an underage minor.

What about the teenage girl who is 17 and engages in consensual sexual conduct with someone who is 18 or older? No harm no foul, right? Since she is 17 and this is Texas, she can consent…right? Wrong!

In Texas, despite what most people, hell, even most attorneys, will tell you, the age of consent is NOT 17. It is, in fact, 18. Let that sink in for a moment. Yes, that means an 18 yr. old high school senior who is having a sexual relationship with his 17 yr. old girlfriend is breaking the law and committing a felony!

Lets take this hypothetical scenario as the basis for our discussion. John Doe, age 34, has a thing for his 17-yr old neighbor, Jane, who is smitten with him as well. John invites Jane over to his house where they begin to mess around with one another. Clothes are shed and John Doe performs oral sex on Jane. Jane is a willing participant and in fact it was Jane who wanted this.

Jane’s parents find out and call the police. John is not worried about anything since Jane was 17 and it was completely consensual. Therefore John knows he cannot be charged with Sexual Assault of a Child under the Texas Penal Code. John thinks he is in the clear, and thus confesses to everything, believing he did nothing illegal. John is wrong.

Under Texas Penal Code § 43.25, titled “Sexual Performance by a Child”, they broadly and vaguely define just how screwed up this law is. The Texas Penal Code defines section 43.25, in pertinent part as follows:

A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.  A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.

Read that statute one more time. It is rife with opportunity to essentially ensnare each and every high school senior who fools around with a high school girl who is 17. The code defines “Sexual Conduct” as the following:

“Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.

For purposes of our discussion here, and maybe just for your own clarification,  ”Deviate sexual intercourse,” as defined by the Code, simply means any contact between the genitals of one person and the mouth or anus of another person. Oral sex, therefore, would be considered “deviate sexual intercourse.” I know. There are jaws dropping across the State in complete shock. Why this is considered “deviate” is a totally different topic for a different blog. But in our scenario, based on the way the Code has defined “Sexual Performance by a Child,” John is guilty of this by having performed oral sex on Jane.

I will be the first to admit that I (along with 95% of the criminal defense bar) have been incorrectly telling people that the age of consent in Texas is 17. Part of that has to do with the fact that this law is seldom enforced or even prosecuted. It is punished as a Second Degree felony in Texas, and I suspect that many prospective jurors would have a hard time convicting an ordinary citizen who may have never been in trouble with the law in his entire life for engaging in consensual sex (deviate or otherwise) with a 17-yr old girl.

However, that would not absolve you of the danger of getting charged, arrested, and possibly indicted for a 2nd degree felony offense. Were you prepared for this? What would your defense have been when the police came knocking at your door? I suspect you would have candidly proclaimed you did each and every thing you are accused of, falsely believing that the age of consent was 17.

Depending on the County you are residing in, and the color of your skin, this could be just the charge they use to hang you out to dry. Be very careful about this. You need to forget anything regarding the age of consent in Texas as 17, and focus on 18. If he/she is not 18, they are off limits. Period. Don’t be the next victim of an overzealous prosecutor.

What do you think about this? Surely I am not the only one who feels like this is complete and utter nonsense?