Has anyone used the provision 22.011(f)that makes it a F1 if "victim was a person whom the actor was prohibited from marrying . . ."?

Is the reference to 25.01 Bigamy go to the whole clause or just "with whom the actor was prohiited from living . . "?

Does this man that the married father who has sex with his 15 yoa daughter can me charged with a F1 but the divorced one is charged with an F2?

We looked at using it against biological father-molesters but upon rereading and rereading, determined it was meant to apply to bigamist molesters, i.e. the fellow whose no. 2 (or higher) wife was a child. Warren Jeffs and his ilk beware.

We have used it before and while the intent was for Bigamy purposes, there's no reason why we can't use it. I would try it in cases where a 2nd degree just isn't enough punishment in a given case.

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Originally posted by Stephanie McFarland:
Does this man that the married father who has sex with his 15 yoa daughter can me charged with a F1 but the divorced one is charged with an F2?

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Exactly.

While the intent may have been to help prosecutors go after "Big Love"-types, the effect is not limited to them. I say go for it.

Stephanie: Sent you a response by e-mail. Let me know if you don't get it.

So has anyone actually gone forward on one of these since our original discussion?

Wouldn't (couldn't) this mean that a married perpetrator could be charged with the higher level of offense in nearly ANY case, since a person who is currently married is prohibited from marrying any other person? I'm also thinking that you could possibly use the statute to raise the level of offense when the victim and the perp are the same sex, since (at least in Texas), the same sex victim would be a person that the perp was "prohibited from marrying". Thoughts?

That's one thing we thought about. Another problem we ran into was there being no TRN(?) codes applicable.

Did the Legislature tinker with this again?

Larry, it would apply in every case of a married defendant. If you have a second degree that needs to be bumped up to a first, I say do it!

If you already have a first degree, no need, I think, to throw it in. Doesn't get you anymore punishment and the jury already knows he is married by that point.

We need every tool we can...this is one of them.

Ok, here's some questions I have. Is it an absurd result that a married man is punished more harshly than an unmarried man for the identical crime of rape of an unmarried adult woman? Is it an absurd result that an unmarried defendant is punished more harshly for the crime of raping a married woman than he would be if the same crime was committed against an unmarried woman? Does the reference to 25.01 apply to all three of the preceding clauses or just the last clause? If so, then this would not seem to apply to child or consanguinity cases by an unmarried defendant because 25.01 doesn't prohibit that type of marriage, only multiple marriages? This statute is a mess.

JohnR - I don't know that the result rises to the level of being absurd (especially from the perspective of avoiding a literal reading of the statute), but it is certainly inequitable to provide that the punishment for a married defendant and an unmarried one is potentially different to the tune of 79 years. Assume the following facts: A married man and hie single best friend meet a woman at a club, then sexually assault her. The defendants are tried in a joint trial. The jury would be charged on two different ranges of punishment for two defendants in the same case who engaged in the same conduct?! Doesn't seem right... actually under these facts it MAY even be absurd.

It does not seem the Legislature worked on this subsection in the recently concluded session. The TRN codes problem seems to be a non-issue because the code applies to the penal code section not the particular punishment provision within the section, as we have been lead to understand.

[This message was edited by JohnR on 06-19-09 at .]

I read it as including people that could not marry due to family relations and have got a conviction and this was not an issue on appeal.

I have this issue in a current brief. Has anyone else briefed/argued this yet? In my case, the defendant was indicted, convicted, and punished under TPC 22.011(f) for having sex with his biological daughter while married to her mother.

JAS