Sexual Assault

Sexual Assault is one of the most common types of sexual offenses prosecuted in Texas. According to a report by the Department of Health and Public Safety, in 2015, the total number of sexual assault incidents reported in Texas was 18,636. The vast majority of those accused of sexual assault are men. In fact, women make up just 5% of the sexual assault cases.

The age group showing the highest number of offenders was the 15­ to ­19 year­ old bracket which explains why so many of these cases are prosecuted in juvenile court in Bexar County, TX.

False allegations of sexual assault (often called "forcible rape") do occur for a variety of reasons. A person falsely accused of this offense faces an uphill battle because many of these prosecutions involve only an accusation. Solid physical evidence to back up allegations of sexual assault is not necessarily required before the case can be prosecuted. A conviction for sexual assault is particularly serious because it triggers a lifetime reporting requirement as a sex offender.


Lawyer for Sexual Assault Cases in San Antonio, Texas

If you were charged with sexual assault or a related sexually motivated offense, the odds might not be in your favor. After a false accusation, you need an experienced criminal defense attorney to represent you at every stage of the case.

Attorney Donald Flanary in San Antonio, TX, is an extremely knowledgeable defense attorney who can work with you as you fight for the best possible resolution in your case. With a thorough understanding of Texas statutes related to sexually motivated crimes, Don Flanary is prepared to provide you with an aggressive defense at every stage of the case.

Located four (4) minutes from San Antonio’s famous River Walk, Flanary Law Firm, PLLC accepts clients in Bexar County, and the surrounding areas including Atascosa County, Guadalupe County, Medina County, and Comal County.

If you live in the greater San Antonio area and are currently facing sexual assault charges or Bexar County or the surrounding areas, then call Flanary Law Firm, PLLC now. Call (210) 738-8383 to schedule a free, no-obligation consultation to discover your options.


Elements of Sexual Assault under Texas Statute §22.011

Sexual assault committed without the person's consent can be charged under (a)(1) or (a)(2) or both. In Texas, under Code of Criminal Procedure, Article 57.01, a sexual assault victim is allowed to remain anonymous or be known in court documents by a pseudonym.

Sexual Assault by Penetration of a Sexual Organ

Sexual assault by penetration of the anus of female sexual organ is charged as a second-degree felony under Texas Penal Code Section 22.01(a)(1)(A). The elements of the offense include:

  1. a person commits an offense if he or she acts intentionally or knowingly;
  2. by causes the penetration of the anus or the female sexual organ of the victim;
  3. the act was committed by any means without the victim’s consent; and
  4. the victim is not the spouse of the actor. 

Texas law provides that a person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result or is aware that his conduct is reasonably certain to cause the result.

Sexual Assault by Penetration of the Mouth

Sexual assault by penetration of the mouth (often called "oral sex") is a second degree felony under Texas Penal Code Section 22.011(a)(1)(B). The elements of the offense include:

  1. a person commits an offense if the person act intentionally or knowingly;
  2. by causes the penetration of the mouth of the victim;
  3. the penetration is by the the sexual organ of the defendant;
  4. the penetration is without the victim’s consent; and  
  5. the victim is not the spouse of the defendant. 

Sexual Assault by Conduct

Under Texas Penal Code, Sec. 22.011(a)(1)(B), sexual assault by conduct is charged as a second-degree felony. The elements of the offense include:

  1. a person commits an offense if the person acts intentionally or knowingly;
  2. by causes the sexual organ of the victim;
  3. to contact or penetrate the mouth, anus, or sexual organ of the victim or the defendant; and
  4. the contact is without the victim’s consent.  

Sexual Assault Penetration of the Anus or Female Sexual Organ of a Child

Under Texas Penal Code, Sec. 22.011(a)(2)(A), sexual assault with penetration of the anus or female sexual organ of a child is a second degree felony. The offense involves a sexual assault against a child who is younger than seventeen (17) years of age.

Under Texas Penal Code, Sec. 22.011(a)(2)(C), sexual assault with contact or penetration of a sexual organ of a child is a second-degree felony. Under Texas Penal Code, Sec. 22.011(a)(2)(D), sexual assault by contact of anus of a child is a second degree felony. 

Affirmative Defense for Spouses

Under Penal Code, Sec. 21.11(b-1), it is an affirmative defense to prosecution for this offense that the actor was the spouse of the child at the time of the offense. The burden of proof regarding this affirmative defense rests upon the defendant, and to establish such defense, the defendant must prove it by a preponderance of the evidence.

Under Texas law, the term “preponderance of the evidence” means the greater weight and degree of credible evidence admitted in this case.

Affirmative Defense for Medical Care

Under Texas Penal Code, Sec. 22.011(d), it is a defense to prosecution for offenses listed in Penal Code, § 22.011(a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.

Affirmative Defense for Youth Defense - 3-Year Rule

Under Texas Penal Code, Sec. 22.011(e), it is an affirmative defense to prosecution for this offense that the defendant was not more than three years older than the victim and that the victim was a child of 14 years of age or older. For this defense to apply, at the time of the offense the defendant must not have been required to register for life as a sex offender under Chapter 62 of the Code of Criminal Procedure as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997.

Also, for the defense to apply, at the time of the offense, the defendant was not a person who had a reportable conviction or adjudication for an indecency with a child offense in accordance with Chapter 62 of the Code of Criminal Procedure.

The burden of proof regarding this affirmative defense rests upon the defendant. To establish such defense, the defendant must prove it by a preponderance of the evidence. The term “preponderance of the evidence” means the greater weight and degree of credible evidence admitted in this case.

The 3-year rule under subsection (e) applies to all (a)(2) offenses.


Other Types of Sexual Assault Crimes in Texas

The most common types of sexual assault crimes in Texas include:

  • Section 22.011 - Sexual Assault
  • Section 22.021 - Aggravated Sexual Assault
  • Section 21.02 - Continuous Sexual Abuse of Young Child or Children
  • Section 21.11(a)(1) - Indecency with a Child by Contact
  • Section 21.11(a)(2) - Indecency with a Child by Exposure
  • Section 43.25 - Sexual Performance by a Child

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Penalties for Sexual Assault Conviction

Sexual assault is considered a second-degree felony punishable by a maximum of twenty (20) years imprisonment and a maximum of $10,000 in fines; however, these penalties may be enhanced depending on the circumstances of the case.

For repeat sex offenders, a sexual assault conviction will result in a minimum sentence of twenty-five (25) years to a maximum of life imprisonment without parole.

A conviction for a second or subsequent sexual assault offense against a child, results in a life sentence pursuant to Texas’ “two strikes” law.


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Additional Resources

Sexual assault under Texas Statute §22.011- Visit the Texas Penal Code website of the Texas State Legislature to find out more about enhanced penalties for sexual assault. This website provides information on sentence enhancements for repeat sex offenders. Also, find information on aggravated sexual assault, indecency with a child, and other related offenses.

Understanding Sexual Assault- Visit the Texas Association Against Sexual Assault website to find out more about legal definitions of rape and sexual assault under Texas law. This website provides resources for victims of sexual assault, trafficking, and other related offenses. Also, find statistics on sex offenses in your area.

Bexar County, Counseling Services- Visit the Network of Care website of the Bexar County Network to find more information on counseling services available to sex crime victims. This website provides contact information for local counseling facilities for victims of violent crime. Also, find more information on legislative history for Texas Statute §22.011.   


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Find a Lawyer for Sexual Assault in Bexar County, Texas

Located in the heart of San Antonio, Flanary Law Firm, PLLC represents clients who have been charged with sexual assault and other sexually motivated crimes throughout Bexar County, Medina County, Atascosa County, Comal County, and Guadalupe County. He represents clients in San Antonio, and the surrounding areas of Windcrest, Terrell Hills, Lytle, Timberwood Park, Balcones Heights, Alamo Heights, Olmos Park, Castle Hills, Converse, and Universal City.

Sexual Assault crimes in Texas (often called "forcible rape") crimes require the most aggressive defense possible. If you were charged with sexual assault or aggravated sexual assault in San Antonio, TX, Donald Flanary is here to help you fight the charges at every stage of the case.

Schedule your free consultation today by calling (210) 738-8383.

This article was last updated on Friday, December 16, 2016.


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