A reader asked me what the age of consent is in Texas. Great question. Let me begin by stating there is no section of the Texas Penal Code that defines “age of consent.” Rather, you have to begin in the Sexual Assault Provisions of the TPC.
§ 22.011. SEXUAL ASSAULT.
(a) A person commits an offense if the person:
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.
This begs the question- What is a child?
(c) In this section:
(1) “Child” means a person younger than 17 years of age
who is not the spouse of the actor.
Ok. So performing any of the acitivties under (a)(2)(A)-(E) with anyone under 17 (and not your spouse) is illegal in Texas. Doesn’t that make many high school students felons? No. Texas has a “Romeo and Juliet” affirmative defense for minors who are within 3 years of age.
(e) It is an affirmative defense to prosecution under
Subsection (a)(2) that:
(1) the actor was not more than three years older than the victim and at the time of the offense:
(A) was not required under Chapter 62, Code of
Criminal Procedure, to register for life as a sex offender; or
(B) was not a person who under Chapter 62, Code of
Criminal Procedure, had a reportable conviction or adjudication for
an offense under this section; and
(2) the victim:
(A) was a child of 14 years of age or older; and
(B) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.
So, to answer- the age of consent in Texas is 17. An affirmative defense does not bar arrest and prosecution. It is an issue that the defense must raise at trial. However, I would recommend you consult with your attorney before choosing any course of conduct.