The definition of sexual assault in the Texas Penal Code Ch 22.011–Sexual Assault includes:
- Intercourse and penetration without consent
- Sexual abuse of an individual who cannot give their consent due to a disability or diminished mental capacity
- Intercourse, penetration, or sexual contact with a minor. A minor is defined as any person under the age of 17
- Forcible and violent intercourse, penetration, or sexual contact regardless of whether consent is given
- Coercive sexual acts
In Texas, if physical violence was used or threatened to get the victim to do what the defendant wanted, or if the victim was unable to resist the act, then Texas considers that no consent was given. If the defendant is in a place of power or charged with taking care of the individual that they are accused of sexually assaulting, Texas considers that the victim was not able to give consent. This would include health care providers, clergymen, public servants, and employees of a facility, such as a nursing home, where the victim lives.
Aggravated Sexual Assault
Sexual assault becomes aggravated sexual assault if any of the following occur:
- The defendant attempted to cause, or caused, serious bodily injury or death to the victim
- The defendant placed the victim in fear of losing their life, being kidnapped, or suffering severe bodily injury
- The defendant used a deadly weapon
- The defendant committed the assault with another person
- The defendant used a ‘date rape’ drug such as Rohypnol or Ketamine to incapacitate the victim
- The victim is younger than 14 years old
- The victim is disabled or elderly
A sexual assault is generally a second-degree felony, unless there are aggravating circumstances, such as the ones mentioned above. A second-degree felony may carry a charge from two to 20 years in state prison and/or a $10,000 fine. If the charge is elevated to a first-degree felony, the defendant may face from five to 99 years in state prison and/or a fine of up to $10,000. Aggravated sexual assault is a first-degree felony. The minimum prison sentence for someone convicted of sexual assault of a minor under six years of age, or sexual assault with a weapon against a child and the child died or was severely injured, is 25 years.
Defenses to the Charge of Sexual Assault
In the United States, if you have been accused of sexual assault you still have rights, you are innocent unless you are proven guilty. You also have the right to reasonable bail. When setting bail, the future safety of the victim and the community, as well as the circumstances of the assault, is considered. No matter how bleak the future looks after you have been accused of sexual assault, an attorney will know what to do to give you a chance at an acquittal or reduced charges and penalties. Some defenses an attorney may use are:
- The defendant was providing medical care to the child and no contact or penetration occurred of the child’s mouth, anus, or sexual organ by the defendant’s mouth, anus, or sexual organ
- The defendant was married to the child
- There was no intent to hurt the child
- The defendant did not know that their actions were illegal
- The victim gave consent
- The defendant was not more than three years older than the victim, and the victim was 14 years old or older and not prohibited from marrying the defendant
- The defendant was insane
- The defendant has an alibi
Jail Time is Not Mandatory for Some Sexual Assault Charges
Nonconsensual sexual contact against an adult where there is no penetration or physical injuries falls under Texas Penal Code Section 22.01(a)(3) and is called assault–offensive contact. This is a class C misdemeanor and is only punishable by a fine of up to $500. There is a two-year statute of limitations to file a charge, and there is prison time involved. However, the same conduct with a child younger than 17 can be classified as a second-degree felony with no limitations on when you must file.
It is important to remember that the state prosecutor must prove beyond a reasonable doubt that you committed the assault, which is a difficult burden of proof. If you have been arrested on a sexual assault or rape charge under Texas Penal Code Ch 22.011–Sexual Assault, you deserve to have an attorney on your side who will know what to do. Call the legal team at the Law Offices of Randall B. Isenberg at (214) 696-9253 for a free case review and to get the help you need to defend against this charge.