In Texas, there are some sexual assaults you can’t go to jail for
This is a featured article from TAASA’s Summer 2016 Newsletter, authored by Chris Kaiser, Director of Public Policy / General Counsel at TAASA.
This article contains descriptions of rape, sexual assault, and sexual abuse of children.
A trusted family friend touches a 17-year-old girl inappropriately for weeks, testing boundaries, then begins fondling her breasts and pressuring her to remove her clothes. A woman’s manager at work makes lewd comments to her and later begins grabbing and groping her. A licensed masseuse grabs his client’s breasts through her clothes and puts his hands down her pants, terrifying the woman of what else he might do if she tries to fight back. A man on a city bus secretly masturbates near women around him and sometimes succeeds in ejaculating on them.
Most Texans are surprised to learn that none of the abhorrent acts described above is considered a serious sex offense in our state, but in fact each is classified as the lowest-level crime available under the law. Unfortunately, many Texans learn that only when they contact authorities to try to report these experiences of sexual violence.
THE CURRENT LAW
Any nonconsensual sexual contact against an adult that does not involve penetration or physical injury falls under Section 22.01(a)(3), Texas Penal Code, “Assault—Offensive Contact.” Assault by offensive contact is a class C misdemeanor—the least severe crime category under Texas law—punishable by only a fine up to $500, no prison time, and subject to a two-year statute of limitations. Class C misdemeanors are essentially ticket-only offenses, so dull-edged that they do not even give rise to a defendant’s Sixth Amendment right to counsel. Other examples of class C misdemeanors are petty theft less than $50, public intoxication, and driving with an expired license.
By comparison, Texas law makes similar conduct a second degree felony with no limitation period when committed against a child younger than 17 (Section 21.11, Penal Code, “Indecency with a Child”). But, for people 17 and older, justice is much more elusive.
In some cases, there may be administrative remedies, even in the absence of a viable criminal case. For example, when offenders operate certain businesses or hold certain professional licenses, these acts can constitute grounds for licensure revocation. However, recent experiences illustrate why administrative responses are no substitute for criminal liability. Last month the Victoria Advocate reported that in 2015 Charles H. “Hank” Krebs was forced to surrender his massage therapist license as a result of groping a client’s breasts and genitals. However, Krebs was again accused of assaulting a massage client in similar circumstances in April of this year, this time while operating a massage business without a license. Though administrative remedies are important, they only go so far. Without appropriate criminal penalties, Texas fails to deter and punish these violent acts.
What, then, is an appropriate criminal-justice response?
First, we must acknowledge that touching another person’s body for sexual gratification without consent—whether an adult or a child, and whether or not it causes “physical” injury—is an inherently violent act. Like rape and other forms of sexual violence, it’s an act of negating a person’s will and bodily autonomy. Often, it’s also the manifestation of institutional or cultural power imbalances, tracing boundaries among gender, race, wealth, sexuality, age, or disability. The trauma of sexual violence is rooted in the erasure of a victim’s will, but it is also refracted through and amplified by any number of unequal power dynamics in a way that it simply is not in the context of many other violent acts.
All that is to say that it’s grossly inappropriate to treat sexual abuse as equivalent with any other “offensive contact.” Assault by offensive contact appropriately applies to minor scuffles or drunken pushes and shoves, but certainly not sexual violence.
In addition, we know that two years is an unrealistic period of time in which to require most sexual abuse survivors to come forward. Earlier this year KXAN-Austin reported that the two-year statute of limitations applicable to class C misdemeanors prevented a young woman from pressing charges against her church preacher, who molested her when she was 17. By the time she had overcome her fear of the man and had spoken out, the state was barred from pursuing criminal charges. If she had been a year younger, or if Texas had had a more sensible criminal statute covering this conduct, this predator likely would not be free today.
Therefore, TAASA proposes to create a new criminal offense to cover this abusive, violent conduct, with appropriate criminal penalties, a realistic time period for victims to come forward, and eligibility for civil protective orders against perpetrators.
Such a statute would give police and prosecutors a dramatically better tool to address these crimes than the current, anemic misdemeanor assault statute. In addition, it would symbolically acknowledge that these acts are serious sexual violence—a proposition that most Texans agree on and that most victims expect to be true when they contact police. Finally, an added benefit may be to assist prosecutors in holding attempted rapists accountable. Sexual contact not rising to the level of rape often accompanies attempted rapes. However, it can difficult to prove attempted rape beyond a reasonable doubt, because prosecutors must prove what the defendant was thinking and what he sought to do to the victim. Our proposed new offense would give prosecutors another charging option in many criminal attempt cases, instead of relying solely on an attempted sexual assault charge.
NOT A FAR-FETCHED IDEA
It’s easy to describe a problem, but it’s much more difficult to craft a realistic, workable solution. Is our proposal just wishful thinking?
Absolutely not. In fact, Texas is a radical outlier in the United States on this issue—45 other states and the federal system have enacted criminal laws covering nonconsensual sexual contact perpetrated against an adult.
These offenses are called different things in different states: “indecent assault,” “sexual assault” (distinguished from “rape” in some jurisdictions), “groping,” “abusive sexual contact,” “sexual imposition.” The titles are less important than the fact that nearly every state in the country recognizes the importance of a meaningful criminal response.
Only Iowa, Mississippi, Nevada, Texas, and Vermont have failed to take action on this matter. Some of those states mirror Texas’s current law, in which the conduct is covered by a low-level offense, but is effectively decriminalized. Others have no statute covering the conduct at all. The vast majority of Americans live subject to laws that treat forcible groping and sexual assault as serious criminal conduct. When people move to Texas from other parts of the country and experience this violence here, they are understandably shocked to learn how leniently our law treats this abuse. A change to Texas law is long overdue.
THE ROAD AHEAD
TAASA’s policy team is already receiving calls about this matter from legislative offices, advocates, and criminal justice professionals. As the 85th Legislative Session draws nearer, we will continue to raise awareness of this issue, educate stakeholders on victims’ needs, and assist policymakers to develop the best possible legislation for Texas. We are confident that a year from now, Texas will become the 46th state to address this form of sexual violence head-on.
If this is an issue you feel strongly about, contact your legislators and ask that they support TAASA in this effort. Visit www.capitol.state.tx.us and enter your address under “Who Represents Me?” to find contact information for your state senator and House representative. In the coming issues of this newsletter, we will continue to highlight key legislative measures and action items that our members can get involved in. Also, if you can make it to Austin, please save the date for TAASA’s Capitol Advocacy Day, presented in partnership with the Texas Council on Family Violence, on Tuesday, February 14, 2017.
Finally, concerning this issue or any of TAASA’s public policy work, visit www.taasa.org/about/public-policy for more information. From there you can also download our official legislative agenda, join the TAASA Public Policy Listserv, and find out how to get involved to support our initiatives.
TAASA is committed to promoting efforts to modify or eliminate the individual, relationship, community, and societal influences that result in perpetration, victimization, and bystander attitudes that allow sexual violence to occur. For more information, visit http://taasa.org/about/public-policy and join the mailing list!