The age of consent is the age at which a person may legally consent to sexual activity. It’s important to understand that age varies from state to state and under federal law. Many people look up the age of consent for a particular state forgetting that age of consent rules also apply at the federal level. Similarly, you’ll often run into sources that give a partial answer. Surprisingly, certain affirmative defenses in Texas where age of consent in an issue, like the Romeo-Juliet statutes or provisions, differ based on the nature of the alleged offense.
Any sex allegation involving a child can bring your life to a screeching halt. The accusation – which may be nothing more than a statement – could lead to the loss of freedom, parental rights, housing, and employment.
A conviction for this type of offense can result in a prison sentence that is decades long and a lifetime of registration as a sex offender. That’s why it’s extremely important to understand state and federal age of consent laws. If you have been accused of a child sex crime, it is imperative that you talk to an experienced attorney who is skilled in handling these types of cases as soon as possible.
In Texas, the age of consent is 17, which means if an adult engages in any form of sexual activity with a child under 17, it is considered statutory rape – even if the younger individual agreed to the sexual activity or lied about their age.
Interestingly, if you were to search the Penal Code for “legal age of consent” in Texas, you would not find it. Instead, you must look at the laws that prohibit sexual activity with a minor. For example, Penal Code Section 22.011, which defines sexual assault of a child, defines a child as anyone under the age of 17. Similarly, Penal Code 21.11 prohibits sexual conduct with a child younger than the age of 17.
Therefore, under Texas law, with some exceptions, it is illegal to have sex with a person under the age of 17. This is sometimes called the statutory rape statute because an individual who is under the age of 17 is legally incapable of giving consent.
In Texas, once a person has turned 17, the law presumes they are able to give consent.
There are some exceptions, however. In Texas, there is something referred to as the “Romeo-Juliet” law, which may protect young adults or teenagers within three years of age who are both over the age of 14 and willingly have sexual relations. In these cases, a sex crime charged could be reduced or even dismissed. Keep in mind, however, children under 14 can never legally consent to sexual conduct.
The age of consent commonly comes up in allegations involving the following offenses:
Aggravated Sexual Assault of a Child
As we will explain in detail below, something that is not widely understood, even by attorneys is the Romeo-Juliet statute depends on the offense charged.
The age of consent varies by state and ranges from 16 to 18. The chart below consolidates published ages of consent for the various states. It is not meant to be legal advice and is provided for illustrational purposes only. If you have a question about the age of consent in a particular state, you are encouraged to talk to a criminal defense attorney in that state.
|State||Age of Consent|
In Texas, the Romeo-Juliet law may protect from prosecution young adults or teenagers within three years of age who are both over the age of 14 and willingly engage in sexual conduct. In these cases, a sex crime charged could be reduced or possibly dismissed.
This is an affirmative defense so a person can be charged with the offense regardless of age, and must raise the defense in court.
The Romeo-Juliet law in Texas varies based on the alleged offense.
Sexual assault of a Child – 3-year Romeo-Juliet provision – See PC 22.011
Indecency with a Child – 3-year Romeo-Juliet provision – See PC 21.11
Online solicitation – 3-year Romeo-Juliet provision – See PC 33.021
Sexual Performance by a Child – 2-year Romeo-Juliet provision – See PC 43.25
Electronic Transmission of Certain Visual Materials – 2-year Romeo-Juliet provision – See PC 43.261
Continuous Sexual Assault – 5-year Romeo-Juliet provision- See PC 21.02
A little known rule is you don’t have to register as a sex offender for Indecency with a Child or Sexual Assault of a Child if the court makes an affirmative finding that at the time of the offense the defendant was not more than 4 years older than the victim, and the victim was at least 15, and the offense is solely based on age. See 42.017 and 62.301 CCP
Both Penal Code 21.11 and Penal Code 22.011 provide slightly different affirmative defenses, but generally, allow an affirmative defense for a person who is no more than three years older than the child. This only applies if the younger child is at least 14 years old.
Please watch the informative video by Board Certified Criminal Defense Attorney Letty Martinez to learn more about how the Romeo-Juliet law acts as a defense to statutory rape.
A common question, especially among young adults, is when they can legally have sex. The easy answer is if both parties are over the age of 17 in Texas, sexual conduct is legal. If both parties are over the age of 18, sexual activity is generally legal under both state and federal law. Federal law is generally only implicated if one person crossed state lines for the purpose of having sex.
So you’re thinking, “What about the Romeo-Juliet Law?”
Remember, this is an affirmative defense, not a defense. This means that it is something you can raise in an argument to defend yourself after you have been arrested, but it is not going to prevent a lawful arrest from happening in the first place. So as you are contemplating choices, remember asserting the Romeo-Juliet statute in Texas is likely only to occur after you have been arrested, someone bonds you out, and you already have a criminal case pending. Similarly, there will be a court document that says you were charged with Indecency with a Minor or Sexual Assault of a Minor until and unless you can get those records expunged. Remember also that, regardless of how the individuals involved in the act may feel about it, anyone can report the sexual relationship to the police. Similarly, if there is a pregnancy, hospital staff will seek information on the child’s father, his age, and are likely to report any possible offense to the police.
The chart below outlines the ages where it is lawful to have sex and ages where the Romeo-Juliet Law may apply under Texas law.
|Age of Child||Age of Actor||Sexual Conduct Legal Under Texas Law||Legal Under Federal Law|
|13||Any||No. Romeo-Juliet does not apply to a sexual conduct with a child under 14.||No.|
|14||15||Affirmative Defense: Romeo-Juliet||No|
|14||16||Affirmative Defense: Romeo-Juliet||No|
|14||17||Affirmative Defense: Romeo-Juliet||No|
|15||16||Affirmative Defense: Romeo-Juliet||No|
|15||17||Affirmative Defense: Romeo-Juliet||No|
|15||18||Affirmative Defense: Romeo-Juliet||No|
|16||17||Affirmative Defense: Romeo-Juliet||No|
|16||18||Affirmative Defense: Romeo-Juliet||No|
|16||19||Affirmative Defense: Romeo-Juliet||No|
Under federal law, the age of consent is 18. In fact, federal law defines a minor as a person under age 18. Therefore, it is illegal to cross state lines for the purpose of having sexual encounters with an individual under the age of 18. For example, a Texas resident may not travel to another state where the age of consent is lower for the purposes of having sex with someone under the age of 18. Doing so will subject that person to prosecution under federal law.
Under 18 USC 2251, it is a federal offense to induce, coerce, persuade, or entice a child under the age of 18 to engage in any sexual activity while affecting interstate commerce or crossing state lines. Similarly, it is illegal to produce, distribute, receive or possess sexually explicit images of a child under the age of 18. The age of consent in the individual states is irrelevant.
It’s important to understand that the federal government has jurisdiction over an alleged crime when some act took place over state lines. This can be actual travel, or as often alleged in cases of child pornography, by the use of computers or the internet.
Having sexual relations with an underage child is a very serious allegation. Unfortunately, the seriousness of these offenses and the significant collateral consequences has, unfortunately, led to a disproportionate number of false accusations being made over the years. For example, an accusation will almost always lead to a loss of employment, parental rights, and housing. This happens for a number of reasons. First, in order to affect an arrest, the police merely have to develop probable cause. This is a very low level of proof and is a far cry from proof required to convict a person of an offense. Second, as soon as an arrest is affected for this type of offense, it is likely any employer will terminate that person’s employment. Texas is an “at-will” state, meaning employers can terminate employees for any reason or no reason at all. Third, once an allegation is made, CPS will conduct an independent investigation. CPS may implement child safety plans that limit access between the accused and his or her own children. Fourth, once a case is filed, the accused will be subject to significant bond conditions, including not having any contact with individuals under the age of 17 (including the defendant’s own children), wearing a GPS monitor at all times, and staying at least 1,000 feet away from any school, child safety zone or area where children congregate. It’s important to point out that physical findings are not necessary to allege any type of sexual misconduct. A mere allegation alone is sufficient to result in an arrest and subject a person to all the consequences described.
Clearly, even a false accusation can devastate a person’s life. Unfortunately, false accusations occur far too often for a variety of reasons. One of the most common occurrences is during a divorce or when there is a child-custody issue. One parent may coach the child to make a false accusation so that it terminates the other parent’s access to the child and significantly reduces the chances that parent will be awarded custody. Another common reason is the child was caught engaging in inappropriate behavior and are deflecting attention to someone else. For example, a child who was caught being sexually active with his or her peers, may make a false accusation against a parent when confronted with the activity. It’s also not uncommon for children who have been previously abused to make a false allegation. They may use the allegation as a way to hurt an adult with whom they are upset.
All of the partners at Varghese Summersett are former state and/or federal prosecutors. Our attorneys have worked both at the state and federal level. More importantly, our attorneys have prosecuted and defended these types of cases successfully. We have obtained dismissals, reductions, and no-bills on the most serious of sexual allegations. Letty Martinez was the Chief of the Crimes Against Children Unit and other attorneys at the firm served in this unit during their careers as prosecutors. Our firm has access to investigators, detectives, and resources specifically pertaining to the types of cases outlined in this article. The decades of experience we bring to the table means several things.
Our attorneys have a track record of obtaining exceptional results in the most serious types of cases including aggravated sexual assault, sexual assault of a minor, indecency fondling, and online solicitation. Our attorneys include former chiefs of prosecuting agencies who helped write the playbook on the prosecution of these offenses. Put experienced criminal defense attorneys at your side. The allegations alone can result in CPS investigations and the loss of livelihood, while a plea or finding of guilt can result in prison time and sex offender registration. Find out how unsubstantiated allegations without physical findings can result in serious consequences without the right defense. Learn why a proactive defense is the best defense.
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