Indecency with a Child Arrest in Texas

Posted on October 12, 2021 by Michael Lowe.

In Texas, it is possible for the testimony of a minor to result in the conviction of an adult for a felony sex crime involving child sex abuse. This can come with extended prison time as well as the serious social stigma for the accused (and his loved ones) that comes with being labelled as a registered sex offender. It begins with the police investigation and arrest, followed by the local District Attorney’s Office subsequent prosecution of the individual for the crime of “indecency with a child.”

What is the Crime of “Indecency with a Child” in Texas?

The Texas Legislature has enacted a specific statute that makes certain actions illegal and subject to arrest that involve interactions with anyone 16 years old or younger. Texas Penal Code §21.11, entitled “INDECENCY WITH A CHILD,” states as follows:

(a) 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 and regardless of whether the person knows the age of the child at the time of the offense, the person:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or

(B) causes the child to expose the child’s anus or any part of the child’s genitals.

(c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

(2) 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.

The Two Elements of Indecency

Under the statute, the Assistant District Attorney (ADA) can establish indecent conduct in one of two ways. The prosecution can proceed under allegations of (1) indecency by contact; or (2) indecency by exposure.

Indecency – Contact

There can be evidence of actual “sexual contact” (as defined in the statute) with the minor who was 16 years old or younger at the time. This is considered indecency by contact.

Indecency – Exposure

There can also be a conviction for violating Texas Penal Code §21.11 with evidence of physical exposure without sexual contact, on the part of the accused, another person, or the minor. This is indecency by exposure.

The Texas Penal Code §21.11 offense can be established even if the accused was not aware at the time of the event that the minor was indeed younger than 17 years of age. If the minor claims to be an adult, or at least 17 years old, then that fabrication will not serve to prevent arrest and prosecution on this serious sex crime charge. The same is true if the accused assumed the minor to be older than 16 years, and no false statement regarding age was involved.

In Texas, Indecency With a Child is a Felony Charge Subject to Sex Offender Registration

Texas Penal Code §21.11(d) defines the sentence upon conviction for indecency with a child as a felony:

[contact] an offense under Subsection (a)(1) is a felony of the second degree;
[exposure] and an offense under Subsection (a)(2) is a felony of the third degree.

Conviction based upon contact brings a more severe sentence than exposure. For more on felony charges and the extent of punishment (incarceration, fines, restitution, etc.) upon conviction, read our discussion in Felony Charges under Texas and Federal Law: Criminal Defense Overview.

Sex Offender Registration

Additionally, anyone convicted of Indecency With a Child is also mandated pursuant to Chapter 62 of the Texas Code of Criminal Procedure Art. 62.102 to register with the State of Texas as a sex offender.

For more, read: Sex Offender Registry in Texas: Stigma and Second Chances.

Affirmative Defenses Under Texas Penal Code §21.11

These cases require an exhaustive and thorough criminal law defense. First of all, in Texas, the defense can proactively argue against conviction through its own authenticated and admissible evidence, in an affirmative argument that is independent of the proof provided by the prosecution in the state’s efforts to convict.

Here, the defense builds its own case, and has to meet the burden of both proof and persuasion in order to get an acquittal.

What is an Affirmative Defense?

This independent defense approach is called an “affirmative” defense. If successful, the defense can obtain an acquittal even if the prosecution has significant evidence to support its claims based upon criminal statutes such as Texas Penal Code §21.11.

Examples of “affirmative defenses” to criminal charges defined by the Texas Legislature include self-defense in Texas Penal Code §9.31 and defense of property in Texas Penal Code §9.41 (e.g., the Texas “castle doctrine”). For more, read Neddenriep, Gregory, and Eron McCormick. “Stand Your Ground Laws.” (2017).

There are specific procedural and evidentiary requirements for using an affirmative defense to a criminal charge, such as Indecency With a Child, in Texas criminal law. The Texas Legislature has certain requirements for the defense alleging and establishing an affirmative defense in these cases.

In Texas Penal Code §2.04, an “affirmative defense” is explained for purposes of the Penal Code as a statute that includes the phrase, “[i]t is an affirmative defense to prosecution …” and here:

(b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense;

(c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense; and

(d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.

Of importance here is that while the prosecution must prove its case by the traditional criminal burden of “beyond a reasonable doubt,” the defense attorney can successfully provide an affirmative defense in these cases with the lower evidentiary burden of a “preponderance of evidence.”

This provides the defense with an easier evidentiary burden to meet in the criminal case than is required for the state. The affirmative defense can be established if the defense can provide enough evidence that its assertions are “more likely than not” to be accurate.

Affirmative Defenses to Charges of Indecency With a Child

The Texas Legislature has included specific defenses available to anyone who is accused of violating Texas’ Indecency With a Child law within that statute. These are not the only defenses that may be available to the accused: the statute does not limit the defense to these provided defenses.

These are the specific “affirmative defenses” provided by lawmakers to work in tandem with any investigation and prosecution of Indecency With a Child charges. According to the statute, pursuant to Texas Penal Code §§21.11(b),(b-1):

it is an affirmative defense to prosecution under this section that the actor:

(1) was not more than three years older than the victim and of the opposite sex;

(2) did not use duress, force, or a threat against the victim at the time of the offense; and

(3) at the time of the offense:

(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or

(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.

The statute is also clear that 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.

The Romeo and Juliet Defense

In the statute’s affirmative defenses, the first on the list (Texas Penal Code §§21.11(b)(1)) is commonly referred to as the “Romeo and Juliet Defense.” This one of several protections appearing in Texas criminal laws that recognize that young adults and teenagers often enter into sexual relationships even though the law does not recognize anyone under the age of 17 years as having the legal capacity to give consent to sexual behavior.

These statutory provisions enacted by the Texas Legislature shield young people who are within three (3) years of age and both over the age of 14 years who are in a sexual relationship or freely engage in sex even if they are not in a relationship. When the ages of the persons involved meet these age criteria, then a capable criminal defense attorney may be able to plea bargain the charges to a lesser charge, or even get the entire matter dismissed.

For other Romeo and Juliet defense examples, read our discussion in Aggravated Sexual Assault of a Child: Texas Penal Code §22.021 and read When Sexting is a Crime in Texas.

Other Defenses to Texas Indecency With a Child Charges

Aside from the affirmative defenses listed in the criminal statute that defines Indecency With a Child, the defense can also argue against a conviction by investigating the entirety of the state’s case for its weaknesses.

In the Texas criminal justice system, the prosecutor has the burden to prove beyond a reasonable doubt every “element” of the crime defined as “Indecency With a Child” in Texas Penal Code §21.11. This must be done with authenticated, admissible evidence that meets the standards of the Texas Rules of Evidence.

The ADA builds the state’s case with documentary evidence as well as witness testimony. The defense must analyze each piece of the prosecution’s evidence as well as how each piece of evidence supports the various elements of the charge.

Objections can be made not only to the gaps in the state’s case, but also for the failure of a document or witness statement to meet the procedural requirements of evidence law (e.g., hearsay). Objections to admissibility can also be made based upon how the evidence was obtained. If there was an improper search or seizure, then the defense can argue for exclusion on constitutional grounds.

For more, read:

If the prosecution is left with insufficient evidence in its case in chief after the defense has winnowed out inadmissible evidence, then the case may be negotiated to a lesser charge or in some instances, dismissed. If the case has gone to trial, then the judge may order a directed verdict in favor of the accused.

Defending Against Allegations of Texas Penal Code §22.11 Indecency With a Child

Anyone facing an investigation or arrest on allegations of child sex abuse, specifically Indecency With a Child, is facing some of the most serious criminal charges that can be brought in the State of Texas. The police and prosecutors take an emotional and aggressive stance to pursue these matters vigorously.

The public perspective of anyone accused of child sex abuse may be so biased that the accused will be presumed to be guilty of abhorrent things, under the proverbial “where there’s smoke there’s fire” belief. Jury trials can be very challenging for the criminal defense attorney in these cases.

Moreover, even an investigation into someone as possibly being arrested for indecency with a child can cause permanent harm and upheaval to the life of the accused, as well as his family, friends, and colleagues. Personal and professional reputations can be forever changed merely by the innuendo that Indecency With a Child charges may be brought.

Accordingly, anyone who has even an inkling that they may be suspected of child sex abuse or indecency with a child – as that is defined the elements of the statute provided above – is wise to seek the guidance and advocacy of an experienced Texas sex crimes attorney as soon as possible.

For more, read:

For more on criminal defense of sex crime charges under Texas law or federal statute, see:

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Top 10 Mistakes in Sexual Assault and Indecency with a Child Cases.”

Posted on October 12, 2021 by Michael Lowe , on Arrest and Indictment, InDepth Articles, Sex Crimes

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