Indecency with a Child

Sexual offenses have recently become a more controversial political issue, one that society has concluded we should be more stringent about. When the media blasts emotionally provocative cases featuring young children who’ve been abused by people they’ve trusted, it is understandable why the public feels an obligation to seriously track and punish such perverse criminals. Nonetheless, that feeling of duty has resulted in marginalized fair representation of a case, eroding a defendant’s presumption of innocence and right to due process.

Accordingly, the Texas Legislature rewrote the rules so that now it is easier than ever before to convict those accused of sexual offenses, guilty and innocent alike. Child molestation cases can often be the most complicated to discern. In Texas, “child molestation” is prosecuted under the statute regarding Indecency with a Child. Below are the 2 types of indecency, followed by the statute:

  1. Indecency with a Child by Contact—A person commits this offense if:

    With a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person engages in sexual contact with the child or causes the child to engage in sexual contact.

    Sexual contact means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

    1. any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
    2. any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
  2. Indecency with a Child by Exposure— A person commits the offense if with intent to arouse or gratify the sexual desire of any person he or she:
    1. exposes the person's anus or any part of the person's genitals, knowing the child is present; or
    2. causes the child to expose the child's anus or any part of the child's genitals.

It is important to note that regarding indecency with a child by contact, it does not matter if the touching that took place was underneath or over the clothes. Any sexual contact with a child, under the Texas statute, will result in a charge punishable by a felony of the second degree. The crime of indecency with a child by exposure is punishable by a third degree felony.

Both offenses can result in serious felony charges, with required registration as a sex offender if there is a conviction. Understandably, indecency with a child by contact results in a harsher punishment than by exposure. However, oftentimes an indictment will delineate the two different offenses in conjunction. In any prosecution of Indecency with a Child by Contact, it logically follows that Indecency by Exposure was also committed. Thus, indictments may raise significant double jeopardy concerns for some individuals accused of indecency with a child, unfairly charging them with 2 different crimes for 1 act.

To put this into perspective, consider an aggravated sexual assault case. The act that constituted the charge may also fall under Texas statute regarding indecency with a child by contact and indecency with a child by exposure. Indicting an individual with 3 charges appears much more serious than one charge by itself. Accordingly, it’s absolutely necessary to hire a lawyer that can handle the details of your charges.

Longer indictments with more charges negatively impact the public’s opinion of an individual, allowing it to appear as if there was more than one incident of inappropriate conduct. Even potential jurors may be given an incorrect idea of someone’s character based solely off his or her charges. Furthermore, the prosecution is inevitably strengthened with a long list of charges. This is true because even if a juror doesn’t fully believe the accused committed the most serious act, a juror may very well convict him or her with a lesser charge on the presumption, “Something must’ve happened.” This scenario is especially common with cases involving acts of indecency with a child by contact and/or by exposure.

Nonetheless, within the criminal justice system, it has been intended for the more serious charge to consider, if not completely subsume, the lesser charge(s). Accordingly, if an individual is charged with murder, the State cannot also indict him or her with both assault and aggravated assault or anything else that may have helped constitute the murder charge. A practiced lawyer will have knowledge of how double jeopardy, extraneous offenses, and jury unanimity may affect a case. He or she will work to create protections for those falsely accused of child sex abuse. For more information on what issues may affect a sexual offense case, visit Evidentiary Issues.