Statutory Rape & “Age of Consent” in Texas: How Old Is Too Old?

When it comes to statutory rape, where the line is drawn on what is acceptable in each state can be confusing, leaving many vulnerable to potential criminal prosecution.

For example, Texas law does not technically define “age of consent”; rather, it defines “child” as younger than 17 years of age, and prohibits sexual activities with this class of individuals (thus establishing the age of consent as 17). In doing so, it thus establishes that anyone 16 years of age or younger cannot legally consent to sexual activity.

Affirmative Defense to Statutory Rape: Close In Age

In Texas, it is a crime to intentionally or knowingly engage in sexual behavior with anyone under the age of 17 (provided they are not married to the individual engaging in the conduct).

However, this does not mean that young people are automatically thrown in jail for becoming involved with each other: While Texas does not have a “close in age” exemption per se, it does provide for an affirmative defense for minors who are within three years of each other and sexually involved. Thus, if the “actor” was not more than three years older than the “victim” at the time of the offense, they can rely on this as an affirmative defense to being prosecuted for statutory rape (i.e. sexual assault of a child).

Still, keep in mind that this does not necessarily mean that you automatically get out of potentially being arrested and charged (with a felony), but simply that if you are arrested, this is a defense that you and your experienced criminal defense attorney have the right to raise during trial. In addition, this defense can only be raised if the “victim” was 14 years of age or older at the time. Thus, it is entirely possible that if two individuals under the age of 17 engage in sexual activity with each other, they could both be prosecuted for statutory rape. This also means that, although they would have a defense available to them at trial, a couple in which one is 16 and the other is 17 or 18 would not necessarily be off the hook for prosecution after engaging in sexual activity with each other.

Punishment for Statutory Rape in Texas

In Texas—as in other states—the severity of the punishment depends upon the circumstances involved; for example, prohibited sexual conduct or indecency with a child is charged as a second degree felony, while aggravated sexual assault or continuous sexual abuse of a young child is a first degree felony.

Egregious Statutory Rape

How frequently are individuals charged with statutory rape? It is more common for egregious acts of statutory rape, whereby an adult rapes a child, to be prosecuted, than, for example, two young individuals under the age of 18 to be arrested.

The Very Best In Texas Criminal Defense Attorneys

If you have questions about statutory rape or age of consent, contact our office today to speak with one of our experienced criminal defense lawyers.