The Herald Banner, Greenville, TX


January 16, 2013

Can consent to sex at 17, but still be in trouble

Ask An Attorney

My daughter just turned 17, and has been in a relationship with an 18-year-old boy from Rockwall for the past year. I looked at her phone while she was in the shower, and she and her boyfriend have been sending each other inappropriate pictures.

From their text conversations I can tell that they have been having sex as well. Can I bring down the law on the boyfriend in for statutory rape? — D.L., Caddo Mills

Answer: Probably not, but other crimes may have been committed.

In Texas, the “age of consent” — which is the age at which a person has the legal right to have a sexual relationship with whomever they choose — is 17.

If your daughter had been in a sexual relationship with her boyfriend when she was 16, it would normally be illegal. However, in this case, the boyfriend’s age would keep him from facing charges for “Indecency with a Child” because he was within three years of her age.

That three-year defense does not apply if any of the activities were forced, or if he threatened your daughter in any way. The three-year defense also would not apply if he was a registered sex offender or had been previously convicted of indecency with a child.

What is more important here are the photos. Even though your daughter is past the age of consent, she is not an “adult” until she turns 18. Therefore, any inappropriate images of her could be considered to be child pornography under both state and federal law. That type of charge is something your local police or Sheriff’s Office will investigate fully.

Before acting, you should also keep in mind that any pictures your daughter took of herself and sent to the boyfriend can also get her in trouble as well. 

Effectively, she has created child pornography and transmitted it to another person — both of which are crimes. The continued existence of it on her cell phone means that she could also be charged with “possession of child pornography” and other sex-crime charges, many of which could force her to register as a sex offender for the rest of her life.

The difference between the age of consent (17) and the age at which naked pictures are no longer “child pornography” (18) was recently highlighted in a criminal case in the Dallas area. A defendant in his mid-30s taped himself engaged in legal sexual activity with a 17-year-old, then uploaded the video to the Internet. He claimed that the age of consent law should bar a prosecution for child pornography. The judge disagreed, as did the Court of Appeals.

My advice is to speak to a criminal-law attorney before taking any action. If you attempt to end your daughter’s relationship by “bringing down the law” on her boyfriend, you might inadvertently saddle her with a lifetime sex-crime record.  You should also speak to an attorney about what reporting obligations you have now that you know about the pictures on her phone.

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