Legal Defenses

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Aside from attempting to prove the accusation false, there are some defenses available to those who committed the illegal act unknowingly.


Consent is a limited and commonly attempted defense that is often difficult to prove, especially in Texas. As stated in the Relevant Ages section, a child under 14 years old is not able to give legal consent; a child under 17 may legally consent, so long as their partner was not more than 3 years older in age at the time of sexual contact.

As stated in the Proving Sexual Assault section, consent may be used in cases involving two adults, but those cases often resort to “he said/she said” narratives. Along with circumstantial evidence, the information which usually provides the most insight to a sexual assault case can be found in an explanation of the relationship history of those involved and also in considering what either may have provoked or could explain the allegations.


In the Sexual Assault statute, the definition for child is “a person younger than 17 years of age who is not the spouse of the actor.” Could a person escape legal accountability for his or her actions by claiming marriage? It appears that marriage may be a legal defense, perhaps plausible in a married relationship between 20 year old and a 16 year old. However, this is not the case.

Marriage cannot be used as a defense for sexual assault against a minor, except in very special circumstances. This is primarily because safeguards have evolved that disallow a person under 18 to marry unless there has been judicial consent or parental approval. This includes common law marriage: in 2005, the legislature amended the statute to prohibit an informal marriage involving a party less than 18 years of age. Thus, marriage to a minor effectively used as a legal defense in a sexual assault case is not a common scenario.

Mistake Of Fact/Misrepresentation Of Age

There are 2 types of mistakes commonly referred to in the criminal justice system, that of fact and that of law. It suffices to say that most of society is well aware that lack of knowledge about the law is not an excuse in majority of cases (although in some specific instances, it can be). Accordingly, mistake of law is not a viable defense for many, especially sexual assault cases. Similarly, mistake of fact involves an unawareness, but in relation to circumstance. Both mistake of law and mistake of fact have led some individuals to practice a willful ignorance regarding the consequences of their actions, abusing what may have been an honest justification for others.

In Texas, mistake of fact cannot be used as a defense for sexual assault cases involving minors. Rather, its use was eliminated and replaced by Texas’ 3 year age difference rule, further explained in the Statutory Rape section. Mistake of fact is considerably more complex than mistake of law because it often coincides with the mens rea requirement to convict an individual. “Mens rea” is Latin for “guilty mind,” and in criminal cases, it is the element which proves motivation or intent, something necessary behind any criminal conviction.

A sexual predator has much incentive to be “unaware” of a youth’s exact age, and the mistake of fact defense arguably grants a loophole to predatory behavior. To illustrate, consider “Todd,” who knows Sexual Assault Against Children is a crime. Let’s say Todd spots a woman at a concert filled with a younger crowd. After talking with her, he learns she drove herself and some friends there and has had some to drink. Todd doesn’t ask her age and instead, assumes she’s over 18. Todd and the young lady have sexual contact. The young lady is 16 years old. Given that Todd may not use mistake of fact as a legal defense, he may face serious consequences.

In the above instance, if he thought mistake of fact was an applicable defense, Todd could easily excuse himself by saying he had no intention to have a sexual relationship with a minor—he was mistaken. Todd may also try to explain the girl appeared 18. The young lady could’ve very well falsely represented herself to be 18. However, both mistake of fact and misrepresentation of age are ineffective legal defenses in a sexual assault case involving a minor. The legislation sought to mitigate predatory behavior by creating an affirmative obligation to confirm a sexual partner’s age… or risk prosecution for sexual assault against a child.