Those of us with experience prosecuting sex crimes are familiar with this scenario: An adult alleges conduct by another adult that does not meet the elements of sexual assault, but sounds like it should be something more than a Class C offensive touching. Yet if the person making the claim were a child we'd have a 2nd or 3rd degree felony. Aside from the obvious flood gates that would be opened, what are others' thoughts on creating an Indecency With an Adult offense? Seems PC 21.11 could be adapted for that purpose by adding the element of ""without that person's consent."

[This message was edited by Patrick Wilson on 09-26-06 at .]

Boy, talk about opening the floodgates! What or how do you prove no consent, what about abusing the system by folks who get mad at one another? Seems to me that we'd have many more problems.

I think we should have a well drafted statute that would address potential sex offenders. Recently, I had a case where an employee of a fast food establishment, while in the restroom, grabbed the crotch of a customer who was washing his hands. The customer was quite upset, since he didn't know the guy and his wife and children were waiting for him in the car. We did what we could, but it would have been nice to do more.

How about an offense whose elements include the offensive or unwanted touching of the anus, breast or genitals of another person with the intent to arouse or gratify the sexual desire of another person or to sexually violate, harrass or intimidate another person? Class A misdemeanor?

We filed a complaint of public lewdness on this guy; however, public lewdness is not covered by the registration statute where indecent exposure is upon second conviction.

I think that if indecent exposure is serious enough to warrant sex offender registration on a second conviction, it should be at least a class A. And frankly, the vast majority of indecent exposure cases I have seen have been way creepier than any of the public lewdness cases I have seen (which have mostly involved consensual sex in a lone boat on a lake or similar consensual circumstances without too many, IF any, people nearby, besides officers). I could definitely envision some of the indecent exposure defendants getting bolder and actually approach a victim to rape them as their sex drive becomes no longer satisfied by mere presence; I would guess this is the reason for the registration requirement on this offense.

Patrick: that's what I get for not reading the D#%m statute! How about approving the use of deadly force to fight off such an assault?

Find a jury in West Texas that won't sua sponte approve the use of "deadly force" to fighting off such an advance!

Is touching on the outside of the clothes included in the definition? "Through the clothing" appears only in the definition of sexual contact for Indecency with a Child, which I take to mean is excluded for the rest of the section (since the definition of "sexual contact" in 21.01 specifically says "except as provided by Section 21.11..." which contains the special definition).

p.s. I LOVE the idea of defending with deadly force.

I posted my last question a long time ago, somewhat hypothetically, but I now have that exact case factually, and I was wondering if anyone had experience with prosecuting public lewdness in which the contact was outside the clothing of an adult. I'll be doing independent research as well, but I'd certainly hope that it would be more than just a class C.

Thanks, as always!

I'm finding some stuff on this; most of it is helpful. If anyone else wants it, let me know. They're mostly code construction-type cases that involve these types of facts.

We successfully prosecuted a prostitution case (lap dancing for money) where the sexual contact was made through clothing. See Steinbach v. State, 979 S,W.2d 836 (Tex.App.--Austin 1998, pet. ref'd). The problem with public lewdness in an environment such as a club, of course, is the requirement that the actor is reckless about whether another is present who WILL BE (not "might be") offended by the act being committed. Otherwise, offensive touching (any physical contact that is offensive or provocative) is no more than a Class C assault.

How about the second person involved who did not want to be grabbed? I'd say that person is someone who was offended. Right?

The "grope-ee" in the lap dancing cases was an undercover officer (literally). I don't know if he has a legal right to be offended or not.