WHAT IS THE AGE OF CONSENT IN TEXAS?
Pursuant to Penal Code § 22.011 and § 21.11, the age of consent in Texas is 17. The age of consent is the age at which an individual may legally consent to engage in sexual activity with another person.
If you were to search the Penal Code for “age of consent” in Texas, you would not find it. Instead, you must look at the laws that prohibit sexual activity with a minor. For example, Penal Code Section 22.011, which defines sexual assault of a child, defines a child as anyone under the age of 17. Tex. Penal Code Ann. § 22.011(c)(1) (West, Westlaw through 2015 Reg. Sess.). Similarly, Penal Code 21.11 prohibits sexual conduct with a child younger than the age of 17. Tex. Penal Code Ann. § 21.11(b) (West, Westlaw through 2015 Reg. Sess.).
Therefore, under Texas law, with some exceptions, it is illegal to have sex with a person under the age of 17. This is sometimes called the statutory rape statute because by statute an individual who is under the age of 17 is legally incapable of giving consent.
In Texas, once a person has turned 17, the law presumes they are able to give consent. Therefore, the age of consent in Texas is 17.
WHAT IS STATUTORY RAPE IN TEXAS?
The Texas’ statutory rape statute states that statutory rape occurs when a person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means. Tex. Penal Code Ann. § 22.011(a)(2) (West, Westlaw through 2015 Reg. Sess.). “Child” in the statute is defined as an individual younger than 17 years in age. § 22.011(c)(1). Statutory rape is a strict liability offense, which means that it does not matter if the sexual intercourse was consensual or that the offender reasonably believed the child was older than they were. Byrne v. State, 358 S.W.3d 745, 749 (Tex. Crim. App. 2011).
The offender cannot claim as a defense that they did not know the child’s age. Id. at 747.
WHAT IS THE AGE OF CONSENT UNDER FEDERAL LAW?
Under federal law, it is illegal to cross state lines for the purposes of a sexual encounter with an individual under the age of 18. Therefore, a Texas resident may not travel to another state where the age of consent is lower for the purposes of having sex with someone under the age of 18. Doing so will subject that person to prosecution under federal law. The Sexual Exploitation and Other Abuse of Children chapter of federal crimes defines a minor as anyone under the age of 18. 18 U.S.C.A. § 2256(1) (West, Westlaw through Pub. L. No. 114-165.). Under Section 2251 of the chapter, it is a federal offense to induce, coerce, persuade, or entice a child under the age of 18 to engage in any sexual activity while affecting interstate commerce or crossing state lines. § 2251. The age of consent in the individual states is irrelevant.
WHAT IS THE ROMEO-JULIET LAW IN TEXAS?
“Rome and Juliet Law” is the term used for a statutory provision that makes sexual conduct between persons close in age non-criminal or provide substantially reduced punishment. In Texas, both the offenses of indecency with a child (TPC § 21.11) and sexual assault (TPC § 22.011) provide slightly different affirmative defenses.
For indecency with a child, it is an affirmative defense to prosecution if the offender (1) was not more than three years older than the victim and the opposite sex of the victim, (2) did not use force or a threat against the victim, and (3) at the time of the offense was not required to register for life as a sex offender under Chapter 62 of the Code of Criminal Procedure (Sex Offender Registration Program) and did not have a reportable conviction or adjudication for an offense under Chapter 62. Tex. Penal Code Ann. § 21.11(b) (West, Westlaw through 2015 Reg. Sess.).
For sexual assault, it is an affirmative defense if (1) the offender was not more than three years older than the victim, (2) the offender at the time of the offense was not required to register for life as a sex offender under Chapter 62 of the Code of Criminal Procedure (Sex Offender Registration Program) and did not have a reportable conviction or adjudication for an offense under Chapter 62, and (3) the child was 14 years of age or older and the offender and child did not commit bigamy. Tex. Penal Code Ann. § 22.011(e) (West, Westlaw through 2015 Reg. Sess.).
It is also an affirmative offense for both offenses if the offender was the spouse of the child at the time of the offense. § 22.011(e)(1); Tex. Penal Code Ann. § 21.11(b-1) (West, Westlaw through 2015 Reg. Sess.).
IS THERE AN AGE OF CONSENT FOR “SEXTING”?
The short answer is no. A minor commits the offense of electronic transmission of certain visual material depicting a minor if they intentionally or knowingly send to another minor visual material depicting a minor engaging in sexual conduct or possess electronic visual material depicting another minor engaging in sexual conduct. Tex. Penal Code Ann. § 43.261(b) (West, Westlaw through 2015 Reg. Sess.). Sexual conduct includes, but not limited to, lewd exhibition of the genitals, masturbation, and any depiction of a female’s breast exposing the nipple. § 43.261(a)(5). A minor is a person younger than 18 years of age. § 43.261(a)(2). Even if the minor purposely sent the picture and consented to the other minor viewing it, it is still an offense. Thus, the minor cannot “consent” even if they wanted to.
However, it is an affirmative defense to prosecution if the visual material depicted only the offender or another minor who is (1) not more than two years older or younger than the offender and with whom the actor had a dating relationship at the time of the offense or who was the spouse of the offender at the time of the offense and (2) was sent to or received only to or from the actor and the minor. § 43.261(e).
If a minor sends a picture of themselves or another minor engaging in sexual conduct to an adult, the adult may be charged with possession of child pornography. A person commits the offense of possession of child pornography if they knowingly or intentionally possess or access with intent to view visual material that depicts a child younger than 18 engaging in sexual conduct, and the adult knew that the child was younger than 18. Tex. Penal Code Ann. § 43.26(b) (West, Westlaw through 2015 Reg. Sess.).
In sum, there is essentially no consent decision involving sexual photographs or videos of a child under the age of 18. Charges will be brought regardless of whether or not the minor sending them consented.
AT WHAT AGE IS A PERSON ALLOWED TO BE A NUDE PERFORMER?
In Texas, it is illegal for anyone under the age of 18 to act as a nude performer, stripper, or other similar sexually oriented business. A person commits the offense of employment harmful to children if the person employees, authorizes, or induces a child to work in a sexually oriented commercial activity or in any place of business permitting, requiring, or requesting a child younger than 18 to work nude or topless. Tex. Penal Code Ann. § 43.251(b) (West, Westlaw through 2015 Reg. Sess.). The offense is a second degree felony. § 43.251(c) However, it is a first degree felony if the child is younger than 14 at the time the offense is committed. Id.