Proving Sexual Assault

Texas politicians regularly tout their toughness against "sexual assault" types of crime. The punishment is constantly increased which in turn increases the leverage prosecutors have over those accused of sexual assault, rape, sexual assault to a child, indecency with a child and the other sexual assaultive type crimes.

For the majority of sexual assault cases, the result is integrally contingent on whether or not the actor obtained consent. There are multiple circumstances delineated in the Texas Penal Code that either indicate a lack of or invalidate consent:

  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. ( 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.

As such, there are several categories of factors that may vitiate consent. Namely, the use of violence or force, exploitation of a mental or physical condition (including intentional impairment), and exploitation of a leadership role are common to sexual abuse cases where consent has been absent according to the penal code.

However, our typical take on not consenting—saying “No” or “Stop”—is not given a point of legal consideration under the Texas Penal Code. There is no case that has set a precedent for determining whether or not a victim said “no.” No brink has been established that delineates how loud, in what tone, or how many times a “no” must be said in order to convict an individual of sexual assault—this would be a difficult detail to prove. Rather, many cases involve a victim who believes he or she said, “No,” and a defendant who didn’t hear it or interpret that’s what was said. And so, both parties continue sexual relations without the use of force, violence, or threat. Days, weeks, or months later, one party may wholeheartedly believe that the sexual encounter was not consensual, even if it wasn’t made explicit or communicated directly during the sexual activity.

Sexual assault cases are often a result of underlying miscommunication between two parties. What an individual chooses to hear and believe in certain situations is often completely dependent upon his or her emotional or mental state, and also that of the person he or she may be with. The legislature may have chosen to leave out such a “no” bright line because cases become very complicated when a person says no, but doesn’t eject himself or herself from the sexual encounter. From a legal perspective, simply feeling unheard or assaulted isn’t enough to prove sexual assault. Nonetheless, both parties involved often benefit from counseling, intervention and communication with those who trust and support them.