Texas Child Sex Crime Cases: What the State Must Prove About Age

In most Texas child sex offenses, the child’s age is an element the State must prove. An element is a fact that must be shown for the charge to stand. Which age limit applies depends on the exact offense, so the specific charge matters most.

Age Is an Element the State Must Prove in Most Texas Child Sex Offenses

In most Texas child sex offenses, the child’s age is an element. The child sex crime age element sets the rules for the rest of the case, so it is the first thing to check.

Age rarely works as a simple yes or no question. Some offenses ask whether the child is younger than 17. Others use younger than 14, younger than 18, or a different line. Some apply whether or not the accused knew the child’s age. Others depend on what the accused believed.

Consent is also part of the picture. Texas defines consent as “assent in fact, whether express or apparent.” (Texas Penal Code § 1.07)

Age Thresholds by Offense Under the Texas Penal Code

Indecency with a child and sexual assault of a child both use the younger-than-17 line. Under Texas Penal Code § 22.011(c), “child” means a person younger than 17 years of age. The indecency with a child statute applies regardless of whether the person knows the child’s age at the time of the offense.

A victim younger than 14 is a separate qualifying circumstance for aggravated sexual assault. The Texas Attorney General’s offense chart lists aggravated sexual assault of a child as a first-degree felony with a range of 5 to 99 years or life.

Continuous sexual abuse under § 21.02(b) requires a victim younger than 14 or a disabled individual. It also requires an actor who is 17 or older and two or more acts of sexual abuse over a period of 30 or more days.

A “minor” under § 33.021(a)(1) is someone younger than 17 or someone the actor believes is younger than 17. Sexual performance by a child covers a child younger than 18 under § 43.25(a)(1).

Some charges carry close-in-age affirmative defenses tied to the age gap. Under § 21.02(g)(1), the affirmative defense requires that the actor was not more than five years older than the victim (or the youngest victim, if there was more than one), and other conditions also apply. Under Texas Penal Code § 21.02, in a prosecution involving only one or more victims described by Subsection (b)(2)(A), it is an affirmative defense if the actor meets each condition in Subsection (g). One condition is that the actor was not more than five years older than the victim, if the offense is alleged against only one victim, or than the youngest victim, if it is alleged against more than one. Another is that the actor did not use duress, force, or a threat against a victim when any alleged act of sexual abuse was committed. A third is that, at that time, the actor was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender, or was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section or an act of sexual abuse described by Subsection (c). Each defense has its own conditions.

Measuring Age at the Time of the Alleged Offense

The age that matters is the child’s age when the alleged conduct happened. Several provisions tie the age to the time the offense is committed. Aggravated sexual assault and sexual performance by a child both use that phrase. A child’s age at arrest, indictment or trial does not decide the threshold by itself.

This makes the dates central. A child who turned 14 or 17 near the alleged period may sit on either side of a line. Charging papers may allege a date range, and that range shows which birth date and which records must be checked.

Continuous sexual abuse adds another date issue. Under § 21.02(d), jurors need not agree on the exact date of each act. They must agree that two or more acts occurred during a period of 30 or more days.

Records the State Uses to Prove Age

Birth certificates are often the most direct record of a birth date. School enrollment and grade-level records can help show age. Medical and pediatric files, insurance records, and adoption or immigration paperwork sometimes list a date of birth.

The State may rely on one record or several. What matters is whether the dates agree. Counsel can ask whether the same birth date appears in every document. Counsel can also ask whether a grade level fits the claimed age on the alleged dates.

A single mismatch can change the timeline the State presents. Counsel reviews each mismatch and asks what caused it.

Testimony, Photos and Messages That Bear on Age

Witness testimony can bear on a child’s age. A parent, relative, teacher or other witness may describe what they know. The weight a jury gives that testimony depends on the basis for the witness’s knowledge.

Section 43.25(g) lists how a court or jury may decide whether a child is younger than 18. The methods include personal inspection, a photograph, oral testimony about the child’s appearance, and medical testimony based on appearance. Any other method the law or evidence rules allow also counts.

Photos, social media profiles, phone records and message apps can show dates. Timestamps and metadata need review, because a date stamp helps only if it is accurate. An opinion about apparent age can be tested for the basis behind it.

How the Defense Tests the State’s Timeline and Records

Defense counsel starts by listing every birth date in the file. Counsel then compares each date against the dates in the charging papers. Next, counsel checks school, medical and message entries against the claimed age on the alleged dates.

Counsel also looks at how each record was obtained. Is it an original or a copy? Is the custodian’s certification complete? Who made the entry, and when? Gaps or conflicts may be raised with the court or explored on cross-examination. Each file has its own timeline, so each review starts from the record itself.

Talk With Barbieri Law Firm About Your Child Age Question

If a charge turns on a child’s birth date, school records or alleged dates, the age question may sit at the center of your case. Barbieri Law Firm defends people accused of child sex crimes in Collin County, Dallas-Fort Worth and across Texas.

Call (972) 424-1902 or send your case details through our contact page. The initial consultation is free, confidential and without obligation.

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