The Crime of Continuous Sexual Abuse of a Child, Texas Penal Code 21.02(c): Part One of Two

Posted on December 13, 2019 by Michael Lowe.

Criminal Defense Overview of Texas’ Version of Jessica’s Law

In February 2005, a nine-year-old girl named Jessica Lunsford was abducted from her bed in her family home’s in Homosassa, Florida. Her body was discovered buried in a shallow grave, shrouded in a garbage bag, behind the mobile home where a neighbor named John Evander Couey lived. He was arrested and later convicted of the child’s kidnapping, rape, and murder. Public outcry rose from a local to national level in this case, spurred not only by the revelation at trial that Mr. Couey was a registered sex offender but that the child had been buried alive. For details, read “Sex Offender Guilty in Rape, Murder of Florida Child,” published by Reuters on March 7, 2007.

State legislatures across the country responded to the Jessica Lunsford case by enacting versions of “Jessica’s Law” as it was initially drafted into law by the Florida Statehouse. Essentially, “Jessica’s Law” focused on children under the age of 12 years and instituted longer sentencing (more time behind bars) along with lifetime tracking via GPS (global positioning technology) of the convicted.

Texas passed its own version of Jessica’s Law in 2007 after much debate in the Texas Senate and House of Representatives. It has been codified in Section 21.02 of the Texas Penal Code.

Texas Penal Code 21.02: Continuous Sexual Abuse of Young Child or Children

The Texas law (Tex. Penal Code §21.02) defines the crime of “Continuous Sexual Abuse of Young Child or Children” as follows, defining a “child” pursuant to Texas Penal Code §22.011(c), as a person younger than 17 years of age:

(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and

(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age, regardless of whether the actor knows the age of the victim at the time of the offense.

TPC §21.02 Works in Tandem with Other Sections of the Texas Penal Code

Key to this law is how it dovetails with other defined crimes under Texas law. In order to prove a violation of Tex. Penal Code §21.02, the prosecution must prove violation of one or more specific crimes as they appear in the Texas Penal Code.

The violation of one (or more) of these laws constitutes an “act of sexual abuse” for the purpose of establishing the crime of “Continuous Sexual Abuse of Young Child or Children” has been committed. The accused must be shown to have done one or more of the following:

(1) aggravated kidnapping under TPC § 20.04(a)(4), if the actor committed the offense with the intent to violate or abuse the victim sexually;

(2) indecency with a child under TPC § 21.11(a)(1), if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child;

(3) sexual assault under TPC § 22.011;

(4) aggravated sexual assault under TPC § 22.021;

(5) burglary under TPC § 30.02, if the offense is punishable under Subsection (d) of that section and the actor committed the offense with the intent to commit an offense listed in Subdivisions (1)-(4);

(6) sexual performance by a child under TPC § 43.25;

(7) trafficking of persons under TPC § 20A.02(a)(7) or (8); and

(8) compelling prostitution under TPC § 43.05(a)(2).

If the prosecution cannot prove his or her case regarding one of more of these eight (8) crimes, then the required element of “act of sexual abuse” cannot be shown. There can be no conviction for the crime of “Continuous Sexual Abuse of Young Child or Children.”

We have discussed some of these other sex crimes and their defense before. For more information here, see:

TPC §21.02: Interaction of the Charges

Additionally, the statute explains how these various crimes interact when someone is charged in the State of Texas for violation of Tex. Penal Code §21.02, Continuous Sexual Abuse of Young Child or Children (“CSA”).

In many cases, the victim must be identical for both the CSA charge and the offenses used to prove of its element of “act of sexual abuse.” Additionally, the prosecutor is given specific instructions on limiting the times he or she can charge the accused with CSA.

The statute explains two main interactions of these charges. First, if the prosecution brings charges in a criminal case for violating TPC §21.02 (CSA) as well as one of more of these other offenses as listed above, then the victim must be the same in both instances unless the offense listed for these other crimes:

(1) is charged in the alternative;

(2) occurred outside the period in which the alleged CSA was committed; or

(3) is considered by the trier of fact to be a lesser-included offense of the offense alleged under TPC §21.02 (CSA).

Second, a defendant may not be charged with more than one CSA if all of the specific acts of sexual abuse that are alleged to have been committed are alleged to have been committed against a single victim.

Juries in CSA Cases: Do You Need Unanimous Verdicts? Not Always.

Under Tex. Penal Code §21.02, special considerations are also given by the lawmakers for how the jury is to decide these matters. The entire jury does not always have to be unanimous in their voting decisions.

If a jury is the trier of fact, then members of the jury are not required to agree unanimously on (1) which specific acts of sexual abuse were committed by the defendant or (2) the exact date when those acts were committed.

However, the jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.

As the Dallas appeals court has explained, TPC §21.02 creates a single element of a “series” of sexual abuse; it does not make each “violation” (act of sexual abuse) a separate element of the offense that needs to be agreed upon unanimously. Render v. State, 316 S.W.3d 846, 858 (Tex. App.-Dallas 2010, pet. ref’d).

Affirmative Defenses to a Charge of Continuous Sexual Abuse of Young Child or Children

Texas lawmakers also inserted specific defenses that can be asserted by anyone accused of Continuous Sexual Abuse of a Child in Texas. Under Tex. Penal Code §21.02 it is a defined “affirmative defense to prosecution” if the accused can show three things:

(1) the actor was not more than five years older than (A) the victim of the offense, if the offense is alleged to have been committed against only one victim or (B) the youngest victim of the offense, if the offense is alleged to have been committed against more than one victim;

(2) the actor did not use duress, force, or a threat against a victim at the time of the commission of any of the acts of sexual abuse alleged as an element of the offense; and

(3) at the time of the commission of any of the acts of sexual abuse alleged as an element of the offense (A) the actor was not required under Chapter 62 of the Texas Code of Criminal Procedure (TCCP) to register for life as a sex offender; or (B) the actor was not a person who under TCCP Chapter 62 had a reportable conviction or adjudication for an offense under this section or an act of sexual abuse (as defined in the list above).

Felony Conviction for CSA: Possible Life Sentence

The crime of Continuous Sexual Abuse of a Child in Texas is a serious felony charge. The statute defines punishment for the offense as a felony of the first degree, treating the conviction as worthy of the same level of punishment as murder.

Under the language of the statute, sentencing can result in life imprisonment with a minimum term of 25 years (sentencing ranging under a term of not more than 99 years or less than 25 years pursuant to the statute).

Given that most CSA defendants are 40+ years old, a conviction for Continuous Sexual Abuse of a Child in Texas is in reality the same thing as a life sentence, as a general rule. This is how the Texas Legislature effectively eliminated the jury’s discretion in sentencing CSA defendants.

Those convicted of CSA are not eligible for probation. Deferred adjudication is not available under the law. Also, parole is not available in a CSA case. These are calendar sentences.

Consider that in Texas, murder convictions result in a sentencing range of 5 to 99 years, or life imprisonment. A Texas defendant convicted of murder is eligible for parole after serving one-half of the sentence, or 30 years, whichever is less. From this perspective, it’s clear that Continuous Sexual Abuse of a Child is a far more serious crime than first degree murder according to current Texas law.

An average CSA conviction almost always results in a more severe punishment than most murder defendants receive in this state.

CSA: Second Offense

Note that in Texas, conviction of this offense for the first time is a serious matter. However, anyone facing CSA charges for the second time needs to be aware that a second conviction for violating the Texas CSA statute can result in an automatic sentence of life imprisonment without the possibility of parole under the law.

Also, Texas is a death penalty state. If someone is convicted more than once for the felony in the first degree of CSA, he or she may find the State seeking capital punishment in their case.

No Limitations Deadline

A key factor for criminal defense lawyers to consider is there is may not be a statute of limitations deadline for filing the CSA charges. If the prosecutor wishes, very old factual circumstances can be used to support charges against the accused for some of the supporting “acts of sexual abuse.” Evidence of questionable age and witnesses with doubtful recollections may need to be challenged.

Public Stigma: Society’s Punishment Aside From Conviction

Aside from statutory considerations, the reality is that anyone who is investigated or arrested for Continuous Sexual Abuse of a Child in Texas faces serious consequences regardless of whether or not there are filed charges or an official conviction.

Whispers that someone has been accused of sexually abusing a child can ruin that person’s life. In Texas, mere gossip of a CSA investigation can result in broken relationships, damaged careers, lost jobs, and permanent harm to personal and professional reputations.

The CSA law does not to address this reality. It is paramount to the defense in these cases to know the wide-ranging impact of these allegations and to work with the accused not only in defending the official charges within the judicial system but to address the certainty of social stigmatization that can result.

For more, read:

What is the Future of Texas CSA Law? SCOTUS Case May Change Things

In our next post, we will discuss the future of Tex. Penal Code §21.02 as the Supreme Court of the United States (SCOTUS) considers the case of James Dalton Smith vs. the State of Texas, Case No. 18-7967, in the Supreme Court of the United States on Petition for Writ of Certiorari.

In the matter, one of the two questions presented to the High Court asks whether TPC §21.02 is unconstitutional. If SCOTUS answers affirmatively, things will change here in Texas for the criminal defense of sex crimes, specifically the Continuous Sexual Abuse of a Child.

Criminal Defense of Charges of Continuous Sexual Abuse of a Child in Texas

Anyone even suspecting that law enforcement is considering the remote possibility that they have engaged in sexual conduct with someone under the age of 17 should seek guidance from a criminal defense lawyer, given the severe and dire ramifications of even rumor and innuendo here. However, those who are being investigated or have been charged with Continuous Sexual Abuse of a Child are in a dire circumstance, where aggressive and experienced defense strategies are vital.

Sadly, police may invade someone’s life and do irreparable harm just by following up on allegations made by angry ex-spouses or coached children. Defense lawyers will need to consider every item of evidence in the state’s case in careful detail.

Prosecutors in these cases must establish the “act of sexual abuse” as defined in the CSA statute. Has this been accomplished? Are there challenges to be made regarding insufficiency of the evidence? Were there improper searches to find the state’s alleged evidence? Was there unconstitutional seizure?

Defense lawyers must zealously defend the CSA accused with minute scrutiny of the facts and keen understanding of the current laws that apply to the matter (including the impact of the pending SCOTUS case, to be discussed in Part Two).

For more, 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 December 13, 2019 by Michael Lowe , on InDepth Articles, Sex Crimes

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