Sexual Performance by a Child in Texas

The term “sexual performance by a child” in Texas refers to any live or recorded performance or exhibition in which a child under the age of 18 engages in sexual conduct. According to Texas Penal Code Section 43.25, sexual conduct includes activities such as sexual intercourse, deviate sexual intercourse, masturbation, and lewd exhibition of genitals or the female breast. This would include asking a child for an explcity “selfie” to a video and can be charged alongside offenses like online solicitation of a minor. It’s important to point out that for Sexual Performance of a Child, a “child” is anyone under the age of 18, unlike many other criminal offenses where a child is defined as a person under the age of 17. Also note that this offense does not require any physical contact with the child. This law criminalizes the employment, authorization, or inducement of a child to engage in a sexual performance, aiming to protect minors from sexual exploitation.

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Definitions Under Penal Code Section 43.25

  • Sexual Performance: This term refers to any performance or exhibition that involves a child under 18 years of age and includes sexual conduct, regardless of the medium through which the performance is exhibited (live, recorded, or public display).
  • Sexual Conduct: Defined broadly, sexual conduct includes actual or simulated acts of sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or any lewd exhibition of the genitals or female breast.
  • Produce: In legal terms, to produce means to direct, promote, or make any arrangements necessary for the creation of a sexual performance involving a child.
  • Promote: Promotion of a sexual performance involves distributing, disseminating, offering, displaying, or advertising material that includes a child’s sexual performance.
  • Deviate Sexual Intercourse: This term refers to any contact between the genitals of one person and the mouth or anus of another person. It also includes the penetration of the genitals or the anus of another person with an object.

Offenses Covered by the Statute

The statute criminalizes various actions related to the sexual exploitation of minors:

  • Employing or Inducing a Child: It is an offense to employ, authorize, or induce a child to participate in any sexual performance or conduct.
  • Consent by Parent or Guardian: Even a parent or guardian cannot consent to a child’s participation in a sexual performance. Doing so is considered a criminal offense.

What is Sexual Performance?

Sexual Performance is defined as “any performance or part thereof that includes sexual conduct by a child younger than 18 years of age.” Any adult who shares the depiction with another is also guilty of the offense.

What is the Punishment Range for Sexual Performance of a Child in Texas?

  1. General Offense: If a person employs, authorizes, or induces a child to engage in a sexual performance, it is typically classified as a felony of the second degree. This carries a punishment range of 2 to 20 years in prison and can include a fine of up to $10,000.
  2. Victim Under 14 Years: If the child involved in the sexual performance is under the age of 14 at the time of the offense, the crime is escalated to a felony of the first degree. The punishment for a first-degree felony in Texas is more severe, ranging from 5 to 99 years or life in prison, and it may also include a fine of up to $10,000.

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Stimulated Conduct as an Offense

One key aspect of Section 43.25 is that even simulated sexual conduct is treated as an offense. Simulated acts, even though not actual, are crafted to appear real and can be just as damaging to a child. This underscores the law’s emphasis on protecting the mental and emotional well-being of minors, not just their physical safety.

Sexual Performance by a Child is a “3g Offense” in Texas

In Texas, the crime of sexual performance by a child is designated as a “3g offense.” This designation carries specific implications for sentencing and parole:

  1. No Probation From Judge Offenders convicted of a 3g offense, including sexual performance by a child, are not eligible for probation when they are sentenced by a judge after a guilty verdict in a trial. This means that a conviction would result in a direct prison sentence without the option of probation.
  2. Parole Eligibility: For 3g offenses, parole eligibility is more restrictive. Offenders must serve at least half of their sentence or 30 years, whichever is less, before they are eligible for parole. In cases of a life sentence, the offender must serve 30 years before becoming eligible for parole.

Are There Affirmative Defenses to Sexual Performance of a Child?

There are affirmative defenses to Sexual Performance of a Child. They include:

  • Spousal Defense: If the accused was legally married to the child at the time of the offense.
  • Legitimate Purpose: Actions conducted for legitimate educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purposes may not be considered offenses under this section.
  • Romeo-Juliet Statute: A defense is also available if the defendant is not more than two years older than the child. (This Romeo-Juliet provision is only 2 years, as opposed to the typical 3-year provision for most other offenses.)

Is Sex Offender Registration Required if Convicted of Sexual Performance of a Child?

Individuals convicted of sexual performance of a child must register as a sex offender for life. Learn more about sex offender registration in Texas. Sexual Performance by a child can be found in Penal Code 43.25.

Defend Against Allegations of Sexual Performance by a Minor

If you are facing allegations involving sexual performance by a child in Fort Worth, reach out to a knowledgeable and experienced attorney at our firm for help navigating your case.

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