Age of Consent in Texas and the Romeo and Juliet Defense

By James Chiles | Partner

Emma Barela and Belle Xu | Legal Interns at Pantheon Legal Group

(Reviewed by Supervising Attorney)

In Texas, the age of consent is 17, meaning that it is a crime to engage in sexual activity with anyone under the age of 16.

The age of consent is a legal concept that, in Texas, defines the minimum age for which it is not a crime to engage in sexual activity with said person. Depending on the state or jurisdiction, the age of consent ranges from 16 to 18.

In Texas, the age of consent is 17, meaning that it is a crime to engage in sexual activity with anyone under the age of 16. The age of consent is intended to protect minors from potential exploitation, and if an adult engages in sexual activity with a person under 17, they may be charged with crimes such as Indecency with a Child, Sexual Assault of a Child, or Aggravated Sexual Assault of a Child. If found guilty of the above, the adult will almost always require to register as a sex offender. 

What is the age of consent in Texas?

According to the Texas Penal Code § 21.11, the age of consent in Texas is 17 years old. It is generally a crime to engage in sexual activity with a person under 17 years old. If an adult engages in sexual activity with someone under 17, it is considered statutory rape, even if the minor willingly participated. 

Texas Statutes & Possible Charges: 

• Texas Penal Code § 21.11 – Indecency with a Child: Sexual contact (touching and over the clothes touching included) with a minor under 17. A second-degree felony, with up to 20 years in prison and a $10,000 fine.

• Texas Penal Code § 22.011 – Sexual Assault (Statutory Rape): Engages in sexual activity with a minor under 17, punishable by 2 to 20 years in prison as a second-degree felony. 

• Texas Penal Code § 22.021 – Aggravated Sexual Assault of a Child: If the victim is under 14 years old, the charge is considered a first-degree felony. This charge can be enhanced based on additional factors, ie. The offender is a caregiver or trusted adult of the child. 

Defenses

Romeo and Juliet is the most commonly used statutory defense, meant to prevent the prosecution of individuals close in age who engaged in sexual conduct. Both individuals must be at least 14 years old and within three years of each other to the day for sexual activity not to be considered a criminal offense.

Romeo and Juliet is not a valid defense if the child involved is under 14 years of age, and the individual may face charges of aggravated sexual assault of a child. Federal law focuses more on age-based restrictions that are related to statutory rape and/or sexual conduct. 

A marriage exception could be a possible defense, but it is heavily regulated in Texas. If the individual is legally married to a minor, the age of consent may not apply and sexual activity would not be considered statutory rape.

Before 2017, minors as young as 16 could marry with parental consent, and younger with a judge's approval. After 2017, the state of Texas banned most child marriages except for 16 and 17-year-olds who a court emancipates. Marriage does not protect against child pornography or aggravated sexual assault. 

Child Pornography Laws in Texas:

Although the age of consent in Texas is 17, child pornography laws apply to anyone under the age of 18. And the Romeo and Juliet defense does not apply.

• Possessing, producing, or distributing explicit images of minors under 18 is a felony under Texas Penal Code § 43.26.

• Convictions can be up to 20 years in prison and mandatory sex offender registration.

• Texas law criminalizes the Sexual Performance of a Child (Penal Code § 43.25), which includes inducing or allowing a minor under 18 to engage in sexual conduct or simulated sexual conduct for a performance or recording.

• Online Solicitation of a Minor (Penal Code § 33.021), it is a crime to use the internet or electronic communications to engage in sexually explicit conversations with or solicit a minor.

  
  

Federal laws such as Sexual Exploitation of Children (18 U.S.C. § 225) and possession and distribution of child pornography (18 U.S.C. § 2252A) carry severe penalties that include sex offender registration and prison sentences up to 20 years. 

Delarosa v. State 677 S.W.3d 668 (Tex. Crim. App. 2023)

In Delarosa v. State 677 S.W.3d 668 (Tex. Crim. App. 2023), the defendant was charged with sexual assault, however, there were inconsistencies in the indictment’s title. The title suggested charges of ‘sexual assault of a child,’ implying the victim was under the age of 17.

While the body of the indictment focused on non-consensual sexual assault without specifying the victim's age, the Texas Court of Criminal Appeals emphasized the necessity for precise and clear charges, especially when distinguishing between offenses based on the victim's age and those based on lack of consent. This case highlights the importance of accurate legal documentation, especially in upholding the integrity of age of consent laws in Texas.

The state of Texas has strict age of consent laws, and any violation can lead to severe criminal charges, including fines, prison time, and sex offender registration. False accusations of sexual misconduct can unfortunately happen. A person can be wrongly accused due to miscommunication of age, false statements, or errors in the investigation. Making it crucial to consult with an experienced criminal defense attorney who can navigate the consent laws in Texas with ease and build a strong defense.