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Public Indecency - Sexual Performance by Child

by Frank Svetlik

The Texas Penal Code Section 43.25 provides the definition of the crime of Public Indecency - Sexual Performance by a Child.

The child is always viewed as the victim under this statute. Involving a child younger than 14 years in a sexual performance is a first-degree felony in Texas.

The range of punishment in the state of Texas for a first-degree felony is five years to 99 years in prison.   Other actions proscribed by the statute are defined to be second-degree felonies and third-degree felonies. The range of punishment in the state of Texas for a second-degree felony is two years to 20 years in prison. The range of punishment in the state of Texas for third-degree felony is two years to 10 years in prison.

Virtually every type of sexual act in which a human being may participate is the subject of this statute. The law prohibits inducing or requesting a child under 18 to participate in any of sexual activity which will be recorded or depicted in an image.  Special penalties are provided for the parent or guardian of a child who approves of, and gives permission for the child to participate in the making of the offending images.

In Texas individuals under the age of 18 can be married.  The spouse of a person under 18 cannot be prosecuted under the statute.  Certain persons who are not more than two years older than the child may use that proximity in age as an affirmative defense.

The judge or jury in determining whether the participant in the sexual activity depicted in the image is under the age of 18 has unlimited discretion. There is no requirement for any testimony about the age of the child.  They need only look at the picture and make a decision based on their personal experience as to whether the child in the picture appears to be younger than 18 years of age.  They can also rely upon a witness who saw the sexual performance who is allowed to give any testimony they feel like about the age of the participating child. So-called expert medical testimony about the appearance of the child engaging in sexual performance is also permitted.

At a first reading the statute seems to focus upon preventing the making of child pornography or permitting children to engage in sexual performances within the state of Texas. However, the broad definition of promoting and producing such material effectively makes it a crime to possess or handle or distribute or resell such material in the state of Texas.  

The Law: 

PENAL CODE

TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY

CHAPTER 43. PUBLIC INDECENCY

Sec. 43.25. SEXUAL PERFORMANCE BY A CHILD.

(a) In this section:

(1) "Sexual performance" means any performance or part thereof that includes sexual conduct by a child younger than 18 years of age.

(2) "Sexual conduct" means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.

(3) "Performance" means any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience of one or more persons.

(4) "Produce" with respect to a sexual performance includes any conduct that directly contributes to the creation or manufacture of the sexual performance.

(5) "Promote" means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.

(6) "Simulated" means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.

(7) "Deviate sexual intercourse" and "sexual contact" have the meanings assigned by Section 43.01.

(b) A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.

(c) An offense under Subsection (b) is a felony of the second degree, except that the offense is a felony of the first degree if the victim is younger than 14 years of age at the time the offense is committed.

(d) A person commits an offense if, knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.

(e) An offense under Subsection (d) is a felony of the third degree, except that the offense is a felony of the second degree if the victim is younger than 14 years of age at the time the offense is committed.

(f) It is an affirmative defense to a prosecution under this section that:

(1) the defendant was the spouse of the child at the time of the offense;

(2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or

(3) the defendant is not more than two years older than the child.

(g) When it becomes necessary for the purposes of this section or Section 43.26 to determine whether a child who participated in sexual conduct was younger than 18 years of age, the court or jury may make this determination by any of the following methods:

(1) personal inspection of the child;

(2) inspection of the photograph or motion picture that shows the child engaging in the sexual performance;

(3) oral testimony by a witness to the sexual performance as to the age of the child based on the child's appearance at the time;

(4) expert medical testimony based on the appearance of the child engaging in the sexual performance; or

(5) any other method authorized by law or by the rules of evidence at common law.

Added by Acts 1977, 65th Leg., p. 1035, ch. 381, Sec. 1, eff. June 10, 1977. Amended by Acts 1979, 66th Leg., p. 1976, ch. 779, Sec. 1, eff. Sept. 1, 1979; Acts 1985, 69th Leg., ch. 530, Sec. 1, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1999, 76th Leg., ch. 1415, Sec. 22(b), eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1005, Sec. 4, 5 eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 1.20, eff. September 1, 2007.

Law Office of Attorney Frank Svetlik

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