11/18/2023 0 Comments Age of consent texasIt is tempting, therefore, simply to conclude that the State pled the wrong theory of sexual assault in this case if it wished to avoid disproving evidence of the complainant's promiscuity. As Judge Overstreet convincingly demonstrates for the Court in Hernandez, thus understood, there is nothing even remotely absurd about the statutory scheme as presently composed. One would think, in that event, that the plain language of the statute would control, and indeed that is the exact conclusion reached by this Court in Hernandez.Īs currently formulated, the statute does not present the problem imagined by some, at least in the general run of cases. In fact, where once the statutory rape statute expressly made consent an element of the former unchastity defense, the current promiscuity defense on its face contains no such limitation. Never mind that the statute itself contains no such requirement. Nevertheless, the trial court below and the State in the court of appeals and seemingly now would require the accused to show that his child victim consented to the assault before he may invoke the promiscuity defense. Moreover, in providing a defense of prior promiscuous sexual conduct for rape of a child 14 years of age or older, subsection (d)(1) is also silent about "consent." One will immediately notice that whereas subsection (a)(1)(A) requires the rape of any female be "without that person's consent," subsection (a)(2)(A) denounces rape of a child without mentioning the matter of consent. (1) the child was at the time of the offense 14 years of age or older and had prior to the time of the offense engaged promiscuously in conduct described in that subsection" (d) It is a defense to prosecution under Subsection (a)(2) of this section that: (1) "Child" means a person younger than 17 years of age who is not the spouse of the actor. female sexual organ of a child by any means female sexual organ of another person who is not the spouse of the actor by any means, without that person's consent *37 "(a) A person commits an offense if the person: State, 754 S.W.2d 321 ( 1988), affirmed 861 S.W.2d 908 (Tex.Cr.App.1993, rehearing denied September 22, 1993), although the facts there are surely bizarre enough.Īs pertinent here (November 1, 1986), § 22.011 provides: I join the opinion of the Court, and write further, essentially to emphasize certain peculiarities of this particular case that are not found in Hernandez v. State, 861 S.W.2d 908 (Tex.Cr.App., 1993).īAIRD, J., joins the opinion but dissents to the decision to publish. I respectfully dissent for the reasons set out in the dissenting opinion in Hernandez v. Therefore, we overrule the State's ground for review, and affirm the judgment of the Court of Appeals. State, 861 S.W.2d 908, (Tex.Cr.App., 1993), this Court decided the issue adversely to the State and, in effect, held consent is irrelevant to a prosecution under Section 22.011(a)(2). We granted the State's petition for discretionary review to determine whether in a prosecution under V.T.C.A., Penal Code, Section 22.011(a)(2), a defendant must claim the victim consented as a prerequisite to raising the promiscuity defense under V.T.C.A., Penal Code, Section 22.011(d)(1). On direct appeal, the Court of Appeals reversed the conviction, and remanded the cause for a new trial. OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEWĪ jury convicted appellant Ralph Wilbur Pawson of sexually assaulting a child, and assessed his punishment at twelve years' confinement and a $10,000 fine. Attys., Denton, Robert Huttash, State's Atty., Austin, for the State. Atty., and Gwinda Burns and Nancy Jessee, Asst. Court of Criminal Appeals of Texas, En Banc.
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