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Sexual Performance by a Child

Concern about the sexual use and abuse of people too young to consent has led to a proliferation of criminal laws designed to protect children and punish those who prey upon them. The laws attempt to anticipate the many different ways that children may be used sexually, and describe those ways as crimes.

In Texas, one of the criminal laws aimed to protecting kids and punishing predators makes it a felony to aid or participate in a “sexual performance by a child.”

Texas Law Prohibiting Sexual Performance by a Child

Section §43.25 of the Texas Code makes it a criminal offense to be involved in sexual performances by a child under 18 years of age. It prohibits:

  • The use of a child – defined as employing, inducing or authorizing the child – to engage in conduct or a performance that is sexual (this includes parents, custodians and guardians who allow it); this is a second-degree felony if the child is at least 14; a first-degree felony if the child is younger than that.
  • The direction, production or promotion of such a performance; this is a third-degree felony if the child is at least 14; a second-degree felony if the child is younger than that.

The first offense targets anyone responsible for the child, including parents and custodians, if they consent to the child’s participation. And although the title of the law specifically refers to performances, the detailed language of the law clearly criminalizes sexual conduct itself, regardless of whether that is related to what most people would think of as a “performance.”

The concept of a “performance” is broadly defined for both offenses to include all visual representations capable of being exhibited to an audience.

Knowledge of Defendant

Both of these crimes require that the defendant know the “character and content” of the performance or sexual conduct. In many cases, there will be a dispute over what the defendant knew, with circumstantial evidence and the testimony of other people involved used to resolve it.

Affirmative Defenses

The law prohibiting involvement in a sexual performance by a child creates three “affirmative defenses,” which exonerate a defendant even if the defendant committed the prohibited acts. These are:

  • The defendant and child were married at the time of the offense.
  • The child and the defendant are no more than 2 years apart in their age.
  • The conduct was for in furtherance of a purpose that is “bona fide,” which is defined to include education, law enforcement, medical, and psychiatric.

Proving Age of the Child

The age of the child is important to prosecutions for involvement in a sexual performance by a child. Proving the child was under 18 at the time of the offense is a basic element of the crime. Whether the child was younger than 14 at the time determines the degree of the felony and the potential punishment.

Since it is frequently hard to tell the age of someone from pictures or films, proving age can be hard in cases where the child is not present at the time of the prosecution; or it may be hard to tell how long ago the performance occurred.

The child sexual performance law describes many ways of establishing age, including the rather obvious personal inspection of the person alleged to be a child, when that’s possible, and examining the person’s image. Other means of proving age include:

  • Expert testimony based on the person’s appearance.
  • Testimony from anyone who witnessed the performance based on the appearance of the person at that time.
  • Any other means that that may be authorized by the law or evidentiary rules.

Get Top Quality Legal Help when Charged

Prosecutions under the law against involvement in a child sexual performance can be unbelievably complex. Depending on exactly which offense you have been charged with, the case may hinge on whether the facts establish one or more of such vague concepts as:

  • Direction
  • Promotion
  • Inducing
  • Authorizing
  • Consent
  • Knowledge

And the public interest in sex crime cases means that police and prosecutors may be overly zealous in their efforts to get a conviction.

Defending these cases calls for real understanding of both the law and the innocent real life situations that may be mistaken for this crime. One practical fact of life is that if more than one person is charged with involvement, there is a serious chance that the prosecution will offer a deal to one defendant in exchange for testifying against the others. A desperate defendant in those circumstances often manages to testify as the prosecution wants, whether it’s true or not.

Whether you are a parent, guardian, or custodian charged with consenting to the performance, or a person allegedly directly involved in it, Houston, Texas, criminal defense attorney Mary E. Conn and her staff can help. Mary E. Conn is a top-rated Texas sex crime lawyer, offering 30 years’ experience in handling these sensational cases. For the help you need, call Mary E. Conn Law today for your free consultation.