In Texas, as in many other jurisdictions within the United States and around the world, sexual assault is defined by the Texas Penal Code as follows.

“(1)  the person intentionally or knowingly:

  1.   causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;
  2. causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or
  3. 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.”

Texas Penal Code Ch 22.011

As you can see, the absence of consent is a crucial part of any sexual assault allegations or charges. However, consent isn’t always as simple as either a “yes” or a “no.” In this article, Dallas-based sex crimes defense lawyer Mick Mickelsen explains in detail how Texas law defines consent.

Who Can Give Consent in Texas?

When it comes to who can and cannot give consent to sexual activity in the state of Texas, there are two general rules that apply in most cases. If you are accused of sexual assault or a related crime in Texas, be sure to discuss the details of your case with a reputable, experienced Texas sexual assault defense lawyer. 

What is the age of consent in Texas?

The age of consent in Texas is 17 years old, which means that anyone over the age of 17 can consent to sexual activity with anyone else over the age of 17, barring the specific circumstances discussed later in this article. 

There are two important exceptions to this rule. 

Firstly, if any parties cross state lines for the sexual encounter in question, federal law applies, meaning that the age of consent is 18 years old. Federal law also applies to all sexual activity that uses the internet as a means of communication, even if all involved parties reside in the same state. This includes exchanging lewd photographs and videos or engaging in sexual context via instant messaging or voice or video chat. 

Secondly, teenagers under the age of 17 can consent to sex with a partner who is less than three years older than them. For example, it would be perfectly legal for a 16-year-old to be sexually active with an 18-year-old boyfriend or girlfriend. However, it is always illegal to engage in any kind of sexual activity with a child under the age of 14 in Texas. 

Can an unconscious person consent in Texas?

In the state of Texas, it is always illegal to engage in sexual activity with someone who is unconscious, even if you did not give them a substance to put them in that state or otherwise cause their state of unconsciousness. In other words, this law is not limited to people who are conscious because they were given GHB or another substance to put them in that state without their knowledge. If someone is unconscious due to voluntary alcohol consumption, they cannot consent. If someone is asleep, they cannot consent. 

What Counts as Consent Under Texas Law?

The Texas Penal Code thoroughly outlines situations in which consent cannot be given. 

Physical force, violence, or coercion. 

Consent does not count if it is obtained by using force, violence, or coercion. Threats of violence that the victim believes can be carried out also negate consent. Texas law defines coercion as the act of persuading someone to do something they wouldn’t usually do by use of threats or other means. 

Threats of physical force or violence. 

Similarly, threats of force or violence used to obtain verbal consent, submission, or participation are illegal if the victim realistically believes that the offender can carry them out. When a victim has reason to fear that they may die during the assault, the charge is elevated to aggravated assault — a first degree felony that carries up to a life sentence in prison. Using threats of harm or violence against someone other than the victim to get the victim to participate, even if the other person is not present, is coercion, and is also illegal. 

Unconsciousness or physical incapacitation

As stated previously, if the victim is unconscious or otherwise physically unable to resist for any reason and the offender is aware that they cannot resist, their consent cannot be given. 

Mental incapacitation

The Texas Penal Code also states that the alleged offender is aware that the victim has a “mental disease or defect” that affects their ability to comprehend or resist the sexual act, this is not consent. 

Positions of power can undermine consent 

Another important aspect of Texas consent law is that certain positions of power create additional circumstances that constitute sexual assault. 

  • Public servants. Public servants using their position of power to obtain consent from someone under their authority is sexual assault. 
  • Mental health professionals. Any mental health profession using a current or former patient’s emotional dependency on them to obtain consent is committing sexual assault. 
  • Clergyman. Clergyman who use a congregation member’s emotional dependency on them or their perceived spiritual power, knowledge, or professional character to obtain consent is committing sexual assault. 
  • Residential facility employees. Unless the employee and the resident are married, a resident of a residential facility cannot legally consent to sex with an employee of that facility. 
  • Primary or secondary school teachers. Under no circumstances can a teacher at a primary or secondary school engage in sexual activity with a student of any age, including students over the age of 17. 
  • Medical professionals. When a medical professional is performing a reproductive assistance procedure, using human material from a donor that the patient has not consented to have used is known as assisted reproduction sexual assault.

Spouses and Sexual Assault in Texas

A common question that many people ask is whether different consent laws apply to married couples. While some people may believe that it is a spouse’s duty to submit to sexual intercourse with his or her partner as part of the contract of marriage, this does not stand up in court. If consent is absent from marital sex, it is marital rape. Spouses have the same rights and are subject to the same sexual assault laws in Texas as everyone else.

Dallas Sex Crimes Attorneys — Broden & Mickelsen

If you have been charged with a sexual offense in Texas, it is crucial to discuss your case with a criminal defense lawyer who has experience handling Texas sex crimes cases. Broden & Mickelsen provides aggressive and ethical representation to individuals and businesses accused of criminal offenses. The firm accomplishes this through its unique team approach to criminal defense, which involves both partners actively participating in the case.

To achieve a favorable resolution, Broden and Mickelsen evaluate each case individually and utilize all the resources available. The Texas Board of Legal Specialization has certified criminal defense attorneys Clint Broden and Mick Mickelsen as experts in criminal law for trials and appeals.

Call Broden & Mickelsen to discuss the details of your case today: (214) 720-9552.