Could my nineteen year old son be charged with statutory rape?

Recently on our legal forum a user asked, “I have a nineteen year-old son who is dating a 16 year old girl. I don’t think they are sexually active, but maybe I am just naïve. I need a better understanding of the statutory rape laws in Texas so I can impress upon him the seriousness of his actions with his girlfriend.”

What is the age of consent in the State of Texas?

Given the seriousness of a sexual offense charge with a child, you have every right to be concerned about your son’s sexual actions. Although this might not pertain to your son’s situation, if a person is convicted of a sexual offense they might not only lose their freedom, but they may also have to register as a sex offender and suffer penalties ranging from fines to imprisonment.

So, with that in mind, let’s take a look at what you need to understand about your case. First, the most important concept to review is the Texas state law for the age of consent found under Penal Code Sections 22.011 and 21.11. This law specifically notes that the age of consent in Texas is 17 and refers to the “age at which an individual may legally consent to engage in sexual activity with another person.”

So, what does this mean? It means that if your son is dating someone who is under 17 years of age she is not legally capable of consenting to sex. Under Texas law, it is therefore illegal to have sex with a person under the age of 17 (assuming the parties are not legally married), even if the sexual relationship is consensual.

What is statutory rape?

Next, it’s important to understand what the law means when it talks about statutory rape. Statutory rape refers to sexual relations with someone who is below the age of consent, which is 17 years of age in Texas.

Statutory rape differs from forcible rape. It does not require the perpetrator to use force or coercion. In fact, the alleged victim may be a willing participant but because they do not have the legal ability to “consent” to sexual relations, it is considered illegal whether force is involved or not.

Will your son be charged with statutory rape?

Now, whether your son will be charged with statutory rape is another question. Although sex with a minor could result in a charge of statutory rape under some conditions, Texas laws do have some protections for young defendants.

Specifically, Texas, which does not have an “age gap provision” to reduce the level of the offense or eliminate the crime, does have a Romeo and Juliet Clause which provides an “affirmative defense” if certain qualifications are met:

• The actor cannot be more than 3 years older than the victim.
• The victim was older than 14 years of age at the time the offense occurred.
• The actor was not at the time registered or required to register for life as a sexual offender.
• The conduct did not constitute incest.
• Neither the actor nor the victim would commit bigamy by marrying the other.. 

What does this mean for your son? Under this concept, the state has attempted to mitigate the seriousness of a statutory rape charge when the offender is 3 years or less older than their “victim” who is at least 14 years of age.

For example, while most criminal statutory rape is a second degree felony and could be punishable by 2 to 20 years in prison, if your son, who is 19, has consensual sexual relations with a girl who is 16 or 17 years of age if the state files charges against him he will have an affirmative defense against them.

Registering as a sex offender

Another issue, although this does not apply to your son, is the issue of the sex offender registration in Texas. In 2011, the Texas legislators passed a law which protects certain young offenders from having to register as sex offenders. Specifically, those who have sex with someone under the age of 17 when they are slightly more than three years older than the victim.

For example, although the offender would not avoid prosecution for statutory rape, if they are no more than 4 years older than the victim and the victim is at least 15 years of age, they may be able to avoid having to register as a sex offender if the sex was consensual.

Bottom line:

Any type of sexual activity between minors or a minor and a young adult is serious. It’s important that you talk to your son about the importance of making good decisions that can impact the rest of his life. The good news legally, however, is that the laws in Texas do offer some protections against statutory rape charges if the participants are close in age, even if one is younger than the legal age of consent.