San Antonio Sexual Assault LawyerS

Sexual Assault by Conduct

Under Texas Penal Code, Sec. 22.011(a)(1)(B), sexual assault by conduct is charged as a second-degree felony. The elements of the offense include:

1. A person commits an offense if the person acts intentionally or knowingly;
2. By causing the sexual organ of the victim;
3. To contact or penetrate the mouth, anus, or sexual organ of the victim or the defendant; and
4. The contact is without the victim’s consent.

Sexual Assault Penetration of the Anus or Female Sexual Organ of a Child

Under Texas Penal Code, Sec. 22.011(a)(2)(A), sexual assault with penetration of the anus or female sexual organ of a child is a second-degree felony. The offense involves a sexual assault against a child who is younger than seventeen (17) years of age.

Under Texas Penal Code, Sec. 22.011(a)(2)(C), sexual assault with contact or penetration of a sexual organ of a child is a second-degree felony. Under Texas Penal Code, Sec. 22.011(a)(2)(D), sexual assault by contact with the anus of a child is a second-degree felony.

Affirmative Defense for Spouses

Under Penal Code, Sec. 21.11(b-1), it is an affirmative defense to prosecution for this offense that the actor was the spouse of the child at the time of the offense. The burden of proof regarding this affirmative defense rests upon the defendant, and to establish the such defense, the defendant must prove it by a preponderance of the evidence.

Under Texas law, the term “preponderance of the evidence” means the greater weight and degree of credible evidence admitted in this case.

Affirmative Defense for Medical Care

Under Texas Penal Code, Sec. 22.011(d), it is a defense to prosecution for offenses listed in Penal Code, § 22.011(a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.

Affirmative Defense for Youth Defense – 3-Year Rule

Under Texas Penal Code, Sec. 22.011(e), it is an affirmative defense to prosecution for this offense that the defendant was not more than three years older than the victim and that the victim was a child of 14 years of age or older. For this defense to apply, at the time of the offense the defendant must not have been required to register for life as a sex offender under Chapter 62 of the Code of Criminal Procedure as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997.

Also, for the defense to apply, at the time of the offense, the defendant was not a person who had a reportable conviction or adjudication for indecency with a child offense in accordance with Chapter 62 of the Code of Criminal Procedure.

The burden of proof regarding this affirmative defense rests upon the defendant. To establish the such a defense, the defendant must prove it by a preponderance of the evidence. The term “preponderance of the evidence” means the greater weight and degree of credible evidence admitted in this case.

The 3-year rule under subsection (e) applies to all (a)(2) offenses.