WHAT IS AGGRAVATED SEXUAL ASSAULT IN TEXAS?
The Texas law against aggravated sexual assault prohibits committing sexual assault, or engaging in a sexual act without the other person’s consent, and:
- using a deadly weapon; or
- causing serious bodily injury or trying to kill the victim; or
- giving the victim a substance to impair his or her judgment or ability to resist; or
- placing the victim, or another person in the victim’s presence, in fear of imminent death, serious bodily injury, kidnapping, or human sex trafficking; or
- is one of at least two people acting together to sexually assault the same victim in the same criminal episode.
A person also commits aggravated sexual assault by sexually assaulting a victim under 14 years of age, over 65 years of age, or a disabled individual.
WHAT IS THE AGGRAVATED SEXUAL ASSAULT LAW IN TEXAS?
Tex. Penal Code § 22.021. AGGRAVATED SEXUAL ASSAULT.
(a) A person commits an offense:
(1) if the person:
(A) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;
(ii) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or
(iii) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or
(B) regardless of whether the person knows the age of the child at the time of the offense, intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; and
(2) if:
(A) the person:
(i) causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode;
(ii) by acts or words places the victim in fear that any person will become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or that death, serious bodily injury, or kidnapping will be imminently inflicted on any person;
(iii) by acts or words occurring in the presence of the victim threatens to cause any person to become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or to cause the death, serious bodily injury, or kidnapping of any person;
(iv) uses or exhibits a deadly weapon in the course of the same criminal episode;
(v) acts in concert with another who engages in conduct described by Subdivision (1) directed toward the same victim and occurring during the course of the same criminal episode; or
(vi) with the intent of facilitating the commission of the offense, administers or provides to the victim of the offense any substance capable of impairing the victim’s ability to appraise the nature of the act or to resist the act;
(B) the victim is younger than 14 years of age, regardless of whether the person knows the age of the victim at the time of the offense; or
(C) the victim is an elderly individual or a disabled individual.
. . .
(c) An aggravated sexual assault under this section is without the consent of the other person if the aggravated sexual assault occurs under the same circumstances listed in Section 22.011(b).
(d) The defense provided by Section 22.011(d) applies to this section.
(e) An offense under this section is a felony of the first degree.
(f) The minimum term of imprisonment for an offense under this section is increased to 25 years if:
(1) the victim of the offense is younger than six years of age at the time the offense is committed; or
(2) the victim of the offense is younger than 14 years of age at the time the offense is committed and the actor commits the offense in a manner described by Subsection (a)(2)(A).
WHAT IS THE PENALTY CLASS FOR AGGRAVATED SEXUAL ASSAULT IN TEXAS?
Aggravated sexual assault is a first degree felony, punishable by five to 99 years or life in prison. The minimum prison sentence is increased from five to 25 years if:
- the victim is younger than six years old; or
- the victim is younger than 14 years old, and the person:
- used or exhibited a deadly weapon in the course of the same criminal episode;
- caused serious bodily injury to or tried to kill the victim or another person in the course of the same criminal episode;
- gave the victim a substance to impair his or her judgment or ability to resist;
- placed the victim, or another person in the victim’s presence, in fear of imminent death, serious bodily injury, kidnapping, or human sex trafficking; or
- is one of at least two people acting together to sexually assault the same victim in the same criminal episode.
WHAT IS THE PUNISHMENT RANGE FOR AGGRAVATED SEXUAL ASSAULT IN TEXAS?
The punishment range for aggravated sexual assault is ordinarily five to 99 years or life in prison, and a maximum fine of $10,000. When the victim is under six years of age, or under 14 and the assailant used a deadly weapon or committed the sexual assault with one of the other enumerated aggravating factors, the minimum prison sentence is increased to 25 years.
- Does aggravated sexual assault carry an automatic life sentence?Texas law punishes repeat offenders who commit aggravated sexual assault with an automatic life sentence, depending on the previous conviction. A conviction for aggravated sexual assault carries an automatic life sentence if the person has been previously convicted of:
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- Sexual performance by a child;
- Possession or promotion of child pornography;
- Trafficking of persons, if the victim is under 18, and was trafficked for sexual purposes;
- Obscenity, if the obscene visual material depicts a child under 18;
- Indecency with a child
- Continuous sexual abuse of a young child or disabled individual;
- Sexual assault;
- Aggravated sexual assault;
- Prohibited sexual conduct;
- Burglary of a habitation, if the person intended to commit one of the listed offenses above during the burglary.
- Is aggravated sexual assault punishable as a capital felony, by life without parole in Texas?Yes, under certain circumstances. If the person has a previous conviction for aggravated sexual assault, a subsequent conviction for aggravated sexual assault is punishable by life without parole when:
-
- the victim is under six years old; or
- the victim is under 14 years old, and the person:
- used a deadly weapon;
- caused serious bodily injury or tried to kill the victim;
- gave the victim a substance to impair his or her judgment or ability to resist;
- placed the victim, or another person in the victim’s presence, in fear of imminent death, serious bodily injury, kidnapping, or human sex trafficking; or
- is one of at least two people acting together to sexually assault the same victim in the same criminal episode.
WHAT ARE THE PENALTIES FOR AGGRAVATED SEXUAL ASSAULT IN TEXAS?
A person charged with aggravated sexual assault may be eligible for probation after a conviction, or deferred adjudication without a conviction, under limited circumstances.
- Can a person be placed on probation for aggravated sexual assault in Texas?A judge may not grant probation after a person is convicted of aggravated sexual assault, so a person on trial for aggravated sexual assault who has no prior felony convictions should generally elect to have the jury assess punishment.If a person has no prior felony convictions, and is found guilty by a jury, the jury may recommend placing the person on probation only if the jury’s prison sentence is ten years or less, and the victim was 14 years or older at the time of the offense. The minimum term of probation is five years, and the maximum is ten years.
- Can a person be placed on deferred adjudication for aggravated sexual assault in Texas?Yes, unless the minimum punishment is 25 years in prison. A person charged with aggravated sexual assault is eligible for deferred adjudication for a period between five and ten years, after a plea of guilty or nolo contendere (“no contest”) to a judge, only if the person has not previously been placed on community supervision for sexual assault, aggravated sexual assault, indecency with a child, aggravated promotion of prostitution, or compelling prostitution.
- Does aggravated sexual assault require registration as a sex offender?Pursuant to Texas Code of Criminal Procedure article 62.001(5), aggravated sexual assault is a reportable adjudication or conviction included in the Sex Offender Registration Program, so a person convicted or placed on deferred adjudication will be required to register as a sex offender. Because aggravated sexual assault is considered a sexually violent offense, a person must register for life.
WHAT ARE THE DEFENSES TO AGGRAVATED SEXUAL ASSAULT IN TEXAS?
The affirmative defenses available for a person accused of sexually assaulting a child in Section 22.011(e) do not apply to an aggravated sexual assault prosecution. Thus, a person may not argue the spouse affirmative defense, or the three-year affirmative defense if accused of sexually assaulting a child under 14 years old.
- What if the alleged aggravated sexual assault was for medical care?|The statute creates a “medical-care defense,” but it is only available for a person accused of sexually assaulting a child, and there must not have been any contact between the child’s sex organ or anus and the accused’s mouth, anus, or sex organ. This defense requires a person to acknowledge he or she committed the conduct, and argue it was for the purpose of medical care, thus negating criminal culpability.In Browne v. State, a woman ran a daycare in her home she shared with her husband, the defendant, and would occasionally leave the children in the defendant’s care. The defendant was indicted, and ultimately convicted, of aggravated sexual assault of a child for penetrating the child’s anus with his finger. He argued he was wiping the child’s bottom after he went to the bathroom, which constituted medical care. However, because he denied penetrating the child’s anus, he did not confess to any conduct justifiable by the medical-care defense. Conviction affirmed.
- What if the alleged aggravated sexual assault of a child was consensual?Texas Penal Code 22.011(c)(1) defines a “child” as a person younger than 17 years of age, and unable to legally consent to sex. While the law permits a person who is within three years of the victim’s age to raise that affirmative defense in sexual assault prosecutions, it is not available if the victim was under 14 at the time of the offense. There is likewise no requirement that the accused actually knew the minor was under age.In Fleming v. State, the 25-year-old defendant had consensual sex and a dating relationship with a 13-year-old girl, but argued she told him she was 22. The Court of Criminal Appeals rejected his claim on appeal that the law should require the State to prove he knew the girl’s age: “If the adult chooses not to ascertain the age of a sexual partner, then the adult assumes the risk that he or she may be held liable for the conduct if it turns out that the sexual partner is under age.”
WHAT IS THE STATUTE OF LIMITATIONS FOR AGGRAVATED SEXUAL ASSAULT IN TEXAS?
There is no limitation period for aggravated sexual assault, if:
- the victim was under 17 years old; or
- DNA was collected, and either has not yet been tested, or was tested and does not match the victim or any readily ascertainable person; or
- the offender is suspected of having committed the same or similar sex offense against five or more victims (a “serial rapist”).
Otherwise, the limitation period for aggravated sexual assault is ten years.
AGGRAVATED SEXUAL ASSAULT IN TEXAS
Aggravated sexual assault is a nonconsensual sexual encounter through use of a deadly weapon, causing serious bodily injury to the victim, drugging or being one of at least two people to rape the victim, or sexually assaulting a person under 14, over 65, or disabled. It is punishable as a first degree felony, and anyone convicted or placed on deferred adjudication for aggravated sexual assault will be required to register as a sex offender.
TEXAS AGGRAVATED SEXUAL ASSAULT COURT CASES
The case law regarding aggravated sexual assault in Texas explains the intricacies of the offense, and the broad interpretation of statutory terms.
- In Brickley v. State, the defendant and victim were in an on-and-off relationship. He accused the victim of cheating, grabbed a knife, and threatened to cut her head off. He tied her up, drove her to a creek, and forced her to perform oral sex on him while he held a rock. He then had intercourse with her, after which he told her to put her head on a rock. When she begged him not to kill her, he took her home. The appellate court upheld his aggravated sexual assault conviction because he used deadly weapons, a knife and rock, during the criminal episode.
- In Blacklock v. State, the victim was raped in 2005, and reported the rapist having a gun. Ten years later, police found the defendant’s DNA matched the sample from the victim’s sex assault exam. At trial, the victim testified she did not remember a gun, but police testified she said a gun was used. The defendant was convicted of aggravated sexual assault, which was upheld. The jury was free to believe he used a gun, and that his conduct caused fear of death or serious bodily injury.
