Found in Texas Penal Code § 21.02, continuous sexual abuse of a child is a pattern offense. The State must prove beyond a reasonable doubt that a defendant, over a period of 30 or more days, committed two or more acts of sexual abuse against a child under the age of 14, and that the defendant was 17 years of age or older at the time each act was committed.
Purpose of the Statute
Enacted in 2007, § 21.02 was designed to significantly enhance penalties for repeat sex offenders who target children. The law, also known as “Jessica’s Law,” was one of many passed across the country and named after 9-year-old Jessica Lunsford, a Florida child who was kidnapped, raped, and murdered by a repeat sex offender. Texas, like many other states, responded to the national demand for mandatory, long-term imprisonment of repeat sex offenders.
Intended to punish a pattern of child sexual abuse rather than isolated acts, the 2007 Texas Legislature established a mandatory minimum sentence of 25 years, with exposure of up to 99 years or life, upon a first conviction under § 21.02. A second conviction for “super” aggravated sexual assault of a child carries a penalty of life in prison without the possibility of parole.
Under Jessica’s Law, capital punishment is only on the table for a repeat conviction for “super” aggravated sexual assault of a child, not for a first § 21.02 conviction or for aggravated sexual assault generally. However, in Kennedy v. Louisiana (2008), the U.S. Supreme Court held that the Eighth Amendment bars the death penalty for any crime against an individual that does not involve a killing, including child rape. Texas’s death-penalty provision remains on the books, but it has never been used.
With a mandatory minimum sentence, a § 21.02 conviction is ineligible for deferred adjudication or a probated sentence. High-risk offenders convicted under § 21.02 may also be required to wear a GPS tracking device that monitors their movements and location in real time following release.
Additional penalties include mandatory lifetime sex offender registration after release from prison, and there is no statute of limitations for prosecuting a § 21.02 offense.
Elements That Must Be Proven Under § 21.02
To convict under § 21.02, the prosecution must prove beyond a reasonable doubt that:
- The defendant was 17 years of age or older at the time of the sex acts;
- The victim was under the age of 14;
- The defendant committed at least two acts of “sexual abuse” during a period lasting 30 days or more; and
- The sex acts fall among the statute’s qualifying offenses, including sexual assault of a child, aggravated sexual assault of a child, indecency with a child by contact, and sexual performance by a child.
However, under § 21.02, the jury does not have to agree on which specific sex acts occurred or the exact dates, so long as the jury unanimously agrees that at least two qualifying sex acts occurred within the prescribed 30-day period. The reasoning behind this unusual jury provision is that child sex offense victims often cannot recall the precise dates of abuse that occurred over a broad period of time.
Texas appellate courts have upheld this jury decision-making provision.
Defenses in § 21.02 Cases
The defense should consider the following, when the facts and circumstances of the case allow:
- Whether the evidence truly shows two distinct qualifying sex acts over a 30-day period, which is the statute’s most rigid requirement;
- Whether the prosecution has, in fact, proven only one qualifying sex act;
- Disputing whether the sex acts fit the statutory definition of “sexual abuse”;
- Attacking the reliability of the child’s testimony and the forensic interviewing methods used; and
- Contesting the 30-day duration period, particularly where the dates are vague, since trial courts will allow imprecise proof of timing.
Conclusion
If you or a loved one is facing a continuous sexual abuse of a child charge in Texas, you need the services of a skilled and experienced attorney to represent your interests. Please feel free to contact the John T. Floyd Law Firm for a consultation, possible representation, and a strategy session.
