Sex Offenses – Criminal Defense Attorney Gilbert G. Garcia
Arrests for Sex Offenses are on the rise in many communities. Sex Offenses are very serious charges and require immediate attention to preserve evidence and limit the devastating consequences a defendant may face.
Buying Sex a now a Felony in Texas. Prostitution is a Felony.
Texas is the first in the country to punish sex buyers with felonies.
On September 1, 2021, anyone arrested, charged, and convicted of being a John can be sentenced for committing a serious felony.
A person commits a sex offense if the person knowingly offers or agrees to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another. A sex offense under Subsection is a state jail felony except that the offense is:
(1) a felony of the third degree if the actor has previously been convicted of an offense under Subsection (a) or under Section 43.02(b), as that law existed before September 1, 2021 [(b)]; or
(2) a felony of the second degree if the person with whom the actor agrees to engage in sexual conduct is:
(A) younger than 18 years of age, regardless of whether the actor knows the age of the person at the time of the offense;
(B) represented to the actor as being younger than 18 years of age; or
(C) believed by the actor to be younger than 18 years of age.
Online Solicitation of a Minor
Online Solicitation of a Minor charges are becoming more wide-spread and common in many Texas Counties; as state, regional and local Internet Crimes Against Children (ICAC) affiliates are established and federally funded through the Justice Department; Office of Juvenile Justice and Delinquency Prevention.
If you have been arrested for Online Solicitation of a Minor, you need an experienced team that can aggressively defend you and protect your rights. Gilbert G. Garcia represents clients charged with Online Solicitation of a Minor in Montgomery and Walker Counties. To fight the charge of Online Solicitation of a Minor, one must expect that it could take well over a year to resolve and will likely involve significant legal action.
Online Solicitation of a Minor: Texas Penal Code Section 33.021
The offense of Online Solicitation of a Minor falls under the Texas Penal Code Offenses, Chapter 33 – Computer Crimes.
Under Sec 33.021(c), the State is required to prove the elements of the crime of Online Solicitation of a Minor beyond a reasonable doubt. The State has the burden to prove the following:
- That the communications occurred over the Internet; by electronic mail or text message or other electronic message service or system, or through a commercial online service; AND
- That the defendant knowingly solicited a minor to meet, with the intent that the minor would engage in sexual contact, sexual intercourse or deviate sexual intercourse.
Further, the Statute mandates that the Defendant cannot rely on the following defenses:
- That the meeting did not occur;
- That the Defendant did not intend for the meeting to occur; or
- That the Defendant was engaged in a fantasy.
- The Statute does allow the Defendant to use the following defenses:
- That the defendant was married to the minor; or
- That the defendant was not more than three years older than the minor and the minor consented to the conduct.
Most arrests made under this statute are the fruits of sting operations that utilize an undercover officer posting as a child. In such cases, no actual child is involved, no actual child is solicited or harmed in any way. Law enforcement officers have become very savvy at this type of operation, creating an elaborate “persona” and placing ads on adult online dating sites. Most Defendants are actually on adult sites, such as Craigslist or other online dating sites and looking for adult companionship. The defendant will engage in online communications which often lead to sexual responses. The Defendant often actually believes that they are communicating with an adult, as originally represented in the online ad. At some point during the conversation, the undercover officer then states that s/he is under the age of 17 and ask the Defendant if s/he is still interested. When charged with Online Solicitation of a Minor, a defendant should understand the severity of the charge, the possible defenses, the penalty ranges, and the long-term consequences.
Online solicitation of a minor is a very frustrating charge for many defendants because it does not require a completed “act” with a minor. A defendant is essentially charged for the simple act of communicating in a certain way with a minor.
For Online Solicitation of a Minor, the method of contact must involve some type of online or electronic means. When this charge first evolved, most states restricted the application to conversations through the Internet, like those in chat rooms. However, as technology expanded, so have the online solicitation laws. Some laws, like in Texas, now include conversations through any electronic messaging services, emails, or text messages. As long as the method is electronic and the conversation includes a “meet in order to engage in sexual activity,” then a defendant can be charged with Online Solicitation of a Minor.
Sex Offenses: The Range of Punishment
In Texas, Online Solicitation of a Minor under subsection “C” is a 2nd Degree Felony.
For a defendant in Texas, a 2nd Degree Felony can result in a prison sentence which can range from two (2) to twenty years (20) in prison and a fine of up to $10,000. In most cases, a Guilty conviction or even a probation sentence will required the Defendant to register as a Sex Offender. Although a probation sentence can allow a defendant to remain free, the restrictions of probation tend to be more intense for Online Solicitation of a Minor because it is considered to be a case that requires sex offender registration. The court can order a defendant to submit to maintenance polygraphs, complete individual or group sex offender counseling, to submit to a sex offender evaluation, and to refrain from being around any children while on probation. The court usually requires a defendant to pay for these programs, which can cost up to $500.00 or more per month.
The long-term consequences can be even more devastating. Because Online Solicitation of a Minor is considered a sex offense, a defendant can be required to register as a sex offender. If a defendant fails to register as a sex offender, then s/he can be charged with a new felony offense of failure to register as a sex offender. Once a defendant has a sexually related offense on his/her record, some states will significantly increase the punishment for a second offense if a defendant is ever charged with another sexually related offense. Beyond the court system, Online Solicitation of a Minor will also affect employment, housing and volunteer opportunities, voter eligibility, gun rights, admission to school and access to credit and/or student loans. With an ever-expanding wealth of data available on the internet, more employers are performing background checks and will likely not hire certain candidates with criminal records. Applicants with sexually related offenses are generally the first to get cut.
Sexual Assault
Sec. 22.011. SEXUAL ASSAULT.
A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means,
without that person’s consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the
actor, without that person’s consent; or
(C) causes the sexual organ of another person, without that person’s consent, to contact
or penetrate the mouth, anus, or sexual organ of another person, including the actor; or
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual
organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another
person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person,
including the actor.
A sexual assault is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of physical force or violence;
(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
(6) the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;
(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
(8) the actor is a public servant who coerces the other person to submit or participate;
(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;
(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser; or
(11) the actor 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 under Chapter 2, Family Code.
Definitions:
(1) “Child” means a person younger than 17 years of age.
(2) “Spouse” means a person who is legally married to another.
(3) “Health care services provider” means:
(A) a physician licensed under Subtitle B, Title 3, Occupations Code;
(B) a chiropractor licensed under Chapter 201, Occupations Code;
(C) a physical therapist licensed under Chapter 453, Occupations Code;
(D) a physician assistant licensed under Chapter 204, Occupations Code;
(E) a registered nurse, a vocational nurse, or an advanced practice nurse licensed under
Chapter 301, Occupations Code.
(4) “Mental health services provider” means an individual, licensed or unlicensed, who performs or purports to perform mental health services, including a:
(A) licensed social worker as defined by Section 505.002, Occupations Code;
(B) chemical dependency counselor as defined by Section 504.001, Occupations Code;
(C) licensed professional counselor as defined by Section 503.002, Occupations Code;
(D) licensed marriage and family therapist as defined by Section 502.002, Occupations
Code;
(E) member of the clergy;
(F) psychologist offering psychological services as defined by Section 501.003,
Occupations Code; or
(G) special officer for mental health assignment certified under Section 1701.404,
Occupations Code.
(5) “Employee of a facility” means a person who is an employee of a facility defined by Section 250.001, Health and Safety Code, or any other person who provides services for a facility for compensation, including a contract laborer.
Defenses for Sex Offenses:
It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.
It is an affirmative defense to prosecution under Subsection (a)(2):
(1) that the actor was the spouse of the child at the time of the offense; or
(2) that: (A) the actor was not more than three years older than the victim and at the
time of the offense:
(i) was not required under Chapter 62, Code of Criminal Procedure, to
register for life as a sex offender; or
(ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and
(B) the victim:
(i) was a child of 14 years of age or older; and
(ii) was not a person whom the actor was prohibited from marrying or
purporting to marry or with whom the actor was prohibited from living under
the appearance of being married under Section 25.01.
Charge Level:
An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.
Aggravated Sexual Assault
Sec. 22.021. AGGRAVATED SEXUAL ASSAULT.
A person commits an offense if the person:
(1)(A) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of another person by any means,
without that person’s consent;
(ii) causes the penetration of the mouth of another person by the sexual organ of the
actor, without that person’s consent; or
(iii) causes the sexual organ of another person, without that person’s consent, to contact
or penetrate the mouth, anus, or sexual organ of another person, including the actor; or
(1) (B) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or
sexual organ of another person, including the actor;
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another
person, including the actor; or
(v) causes the mouth of a child to contact the anus or sexual organ of another person,
including the actor; and
(2) (A) the person:
(i) causes serious bodily injury or attempts to cause the death of the victim or another
person in the course of the same criminal episode;
(ii) by acts or words places the victim in fear that any person will become the victim of
an offense under Section 20A.02(a)(3), (4), (7), or (8) or that death, serious bodily
injury, or kidnapping will be imminently inflicted on any person;
(iii) by acts or words occurring in the presence of the victim threatens to cause any
person to become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8)
or to cause the death, serious bodily injury, or kidnapping of any person;
(iv) uses or exhibits a deadly weapon in the course of the same criminal episode;
(v) acts in concert with another who engages in conduct described by Subdivision (1)
directed toward the same victim and occurring during the course of the same criminal
episode; or
(vi) 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;
(2) (B) the victim is younger than 14 years of age; or
(2) (C) the victim is an elderly individual or a disabled individual.
Definitions:
(1) “Child” has the meaning assigned by Section 22.011(c).
(2) “Elderly individual” and “disabled individual” have the meanings assigned by Section 22.04(c).
An aggravated sexual assault under this section is without the consent of the other person if the aggravated sexual assault occurs under the same circumstances listed in Section 22.011(b).
Defenses: The defense provided by Section 22.011(d) applies to this section.
Charge Level:
An offense under this section is a felony of the first degree.
The minimum term of imprisonment for an offense under this section is increased to 25 years if:
(1)the victim of the offense is younger than six years of age at the time the offense is
committed; or
(2)the victim of the offense is younger than 14 years of age at the time the offense is
committed and the actor commits the offense in a manner described by Subsection (a)(2)(A).