The age of consent refers to the age at which a person can legally join with another person in performing sexual acts. There is no national age of consent, as it differs according to state. Depending on the jurisdiction, the age of consent ranges from 16 to 18. The age of consent in TX is 17. If a person 18 or older engages in sexual activity with a minor, they may face charges of statutory rape.
Under the Texas Penal Code, there are situations in which someone under the age of 17 can give consent, but the circumstances depend on the alleged sexual offense, the age difference between the two parties, and whether they were in a dating relationship at the time of the offense.
The Legal Concept of Consent
Sexual activity requires a certain level of maturity. While a young person may have the physical ability to reproduce, that does not mean they have the mental and emotional capacity to engage in sexual activity.
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Consent is not limited merely by age. It may also apply to those engaging in sexual activity who are developmentally disabled, intoxicated, unconscious, or when the alleged perpetrator was someone in a position of authority, such as a teacher or coach.
Keep in mind that it does not matter if the offender was unaware that the child was underage.
Romeo and Juliet Law
Shakespeare’s tragic story of young love concerns two teenagers. Texas’ so-called “Romeo and Juliet” law recognizes that young people may engage in sexual activity when one or both parties are still under the age of consent. The Romeo and Juliet provision may apply when such sexual activity is mutually agreed upon even though participants are underage.
While in most cases, the maximum age difference in Romeo and Juliet situations is three years, it actually depends upon the alleged offense. For instance, under Texas Penal Code § 43.25., concerning Sexual Performance by a Child, the age difference is just two years when it involves a person committing an offense that “employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.” This may include videos or films, photographs, dances, or plays that can be exhibited for an audience. Note that the age limit under this statute is 18, not 17.
Under most circumstances, this is a second-degree felony, punishable by up to 20 years in prison and a $10,000 fine. If the child is under age 14, it is a first-degree felony, with a possible prison time of 99 years, a life sentence for all intents and purposes.
However, if the defendant was married to the child at the time of the offense or the actions were conducted for legitimate purposes or is not more than two years older than the child at the time, that is considered an affirmative defense. Such a defense involves evidence introduced that credibly negates criminal or civil liability.
The two-year age difference also applies as an affirmative defense to Texas Penal Code § 43.261., Electronic Transmission of Certain Visual Material Depicting Minor. Again, in this situation, a minor is someone under the age of 18. An affirmative defense for electronically transmitting visual material showing a minor engaging in sexual conduct is that the offender “is not more than two years older or younger than the actor and with whom the actor had a dating relationship at the time of the offense.”
Online Solicitation of a Minor
When it comes to online solicitation of a minor, the age of consent is 17. However, if the person soliciting a minor believes the individual solicited is under 17, that can also mean they can be charged. The fact that no actual meeting occurred is not a defense to prosecution.
An affirmative defense is provided if the person soliciting the minor is not more than three years older and the minor consented to the conduct.
Online solicitation of a minor is considered a misdemeanor.
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