Under Texas state law sexual assault, commonly known as rape, is defined in Texas Penal Code §22.011. Sexual assault covers a wide range of incidents, most of which involve an allegation that the accused caused penetration by a sexual organ without the victim's effective consent. Sexual assault can include vaginal, anal or oral sex, and the accused can be a male or female.
In cases of sexual assault involving two or more adults in which deadly weapons are not used, the crime is typically considered a Second Degree felony and carries a potential sentence of 2-20 years imprisonment, plus a $10,000 fine and lifetime registration as a sex offender. It is also a “3g” offense, which means a person convicted of the offense and sentenced to prison must serve at least 50% of the sentence before being eligible for parole. It also means that a judge may not place a person so convicted on ordinary community supervision (however, the judge may place the person on deferred adjudication).
When the alleged assault includes certain factors, the charge may be elevated to the more severe offense of aggravated sexual assault. Aggravated Sexual Assault is described independently in the Texas Penal Code, and it shares elements of both the Aggravated Assault offense and the Sexual Assault offense.
The crime of Sexual Assault can be elevated to Aggravated Sexual Assault in any of these cases:
- The victim is under the age of 17, an elderly individual or a disabled individual;
- The defendant causes or acts with another person who causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode;
- The defendant threatens the victim or any person with death, serious bodily injury, or kidnapping;
- The defendant uses or exhibits a deadly weapon;
- The defendant administers or provides flunitrazepam, otherwise known as rohypnol, gamma hydroxybutyrate, or ketamine to the victim of the offense with the intent of facilitating the commission of the offense.
The most apparent issue in sexual assault cases involving adults is that of consent. There are several situations in which Texas law says consent is lacking for the purposes of the Sexual Assault law;
- The victim was compelled to submit or participate by the use or threat of physical force or violence against the them or another person;
- At the time of the sexual assault the defendant knew that the victim was incapable either of appraising the nature of the act, or of resisting it as a result of mental disease or defect;
- The defendant knew that the other person was unaware that the sexual assault was occurring, or intentionally impaired the other person’s power to appraise or control the their conduct by administering any substance without the other person’s knowledge;
- The defendant is a public servant, mental health services provider, clergyman or a health care services provider who coerces or exploits the victim’s emotional dependency on them in order to make them submit or participate;
- The defendant is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other.
Even if there is no physical evidence to support an accusation of sexual assault a charge can still be filed. In many cases the evidence boils down to “he said, she said”, and unfortunately false allegations do occasionally arise; for instance as a result of divorce, child custody battles, conflicts between a child and a step-parent; or in relationships involving an unstable person. Sexual assault charges are sometimes made after consensual sex, for one reason or another. Tragically, children are also sometimes coerced or manipulated into making false charges of sexual assault.