THREE COMMONLY CHARGED ‘CHILD SEX ABUSE’ LAWS IN TEXAS
- Continuous Sexual Assault of a Child (Texas Penal Code § 21.02): Occurs when a person 17 or older commits two or more acts of sexual abuse against a child or children under age 14 during a period that is 30 days or more in duration. Besides capital murder, this is considered one of the most serious offenses in Texas.
- Aggravated Sexual Assault of a Child (Texas Penal Code § 21.021): Occurs when the victim of a sexual assault is under the age of 14, regardless of consent. Texas does not recognize sexual consent by individuals under age 14. In certain circumstances, the minimum sentence can be 25 years.
- Indecency With a Child (Texas Penal Code § 21.11): Occurs either when: 1) there is sexual contact or 2) exposure with a child under age 17. Sexual contact involves the intent to arouse or gratify sexual desire and involves the touching of any part of the child’s genitalia, anus, or breast. Sexual exposure involves intent to arouse or gratify sexual desire and the exposure of a person’s anus or genitalia to a child or having the child expose their anus or genitalia.
In 2025, the Texas Legislature passed, and the Governor signed, HB 1422, which amended related statutes, potentially increasing penalties and clarifying victim definitions for related sexual offenses, including those under § 21.02. The passing of HB 1422 is significant because it consolidates related sexual offenses into one charge. This consolidation allows prosecution of the offense even if the individual acts might otherwise be charged under different, separate sections of the Penal Code. It also restricts parole eligibility for aggravated sexual offenses and expands the list of offenses that are no longer eligible for deferred adjudication and standard probation.
POTENTIAL DEFENSES
There are several defenses utilized in these types of cases. They include:
- Identity/Opportunity: The defendant was not the person who committed the charged offense. This can be shown by demonstrating any of the following: the defendant had an alibi at the time of the offense; the victim’s mistaken identification; the defendant did not have access to the child; or that others had an equal or greater opportunity to commit the offense.
- No Sexual Conduct as Charged: No sexual contact or penetration occurred at all, or what allegedly did occur does not rise to the statutory definition of either “penetration” or “sexual contact.”
- Alternative Explanation for Victim’s Behavior/Injuries: Present medical, psychological, or behavioral evidence suggesting non-abusive reasons for physical findings of abuse or behavioral symptoms of abuse.
TRIAL STRATEGIES
Through both direct and cross-examination, defense attorneys can present evidence or elicit information that focuses on the following:
- Motive By Victim To Fabricate: Stressful custody disputes, child protective services involvement in family disputes, family conflicts that indicate a revenge motive (e.g., against a step-parent or ex-partner), and or any coaching or suggestive questioning by a parent or child sexual abuse expert.
- Inconsistencies and Evolution: Changes in details about time, dates, frequency, circumstances, specific acts, and prior statements, as contained in child advocacy center recordings and child protective services notes, can be used to illustrate false or embellished allegations.
- Suggestibility and Child Memory: Repeated suggestive questioning by child sexual abuse experts, leading questions in interviews, or adult pressure can result in memory contamination or influencing that produces false or exaggerated disclosures.
TRIAL TACTICS
Through both direct and cross-examination, and with the use of expert witnesses, defense counsel shoudl use appropriately aggressive trial tactics to disclose:
- Lack or Weakness of Physical Evidence: Emphasis placed on the fact that findings of sexual assault nurse examiners (SANE) are either normal or non-specific; that there is no DNA or corroborative forensics to support either the alleged abuse or its timeframe; or that law enforcement or prosecutorial evidence collection was mishandled, delayed, or exposed to possible contamination.
- Challenge SANE/Forensic Experts: Stress the limits of the expert examinations (e.g the lack of evidence of injury or penetration); the margins of error on dates of injuries; and any overreaching opinions on the credibility of the victim.
- Use of Expert Witnesses: Child psychology and forensic interviewing experts, digital forensic experts, and medical experts to review SANE findings.
- Jury Instructions: Request instructions on defensive issues supported by the evidence (alibi, mistake, or lesser included offenses) and object to any improper burden shifting instructions.
PRETRIAL ISSUES
Ahead of trial, an investigation should determine if there are statutory or constitutional grounds to suppress evidence or statements obtained unlawfully, such as in violation of Miranda rights; unlawful property searches; suggestive lineup procedures; police or prosecutorial misconduct; or a failure by law enforcement to investigate alternative suspects. Proper motions should be filed in advance of trial to address these issues, along with timely and proper objections to preserve the issues for appeal should the trial court deny the motions.
If you or a loved one has been charged with any form of child sexual abuse, you must get an experienced criminal defense attorney right away. The John T. Floyd Law Firm has decades of experience successfully litigating these cases and stands ready to offer its experienced services to you in this time of need.
