I have a 15 yoa boy (brother of victim's friend) who molests a 14 yoa girl while she is sleeping. She wakes up in the middle he runs. His atty. is raising the defense that he used no duress, force, or threat against vic. because she was sleeping. I have found some case law, but not really on point. Has anyone else encountered a similar fact situation and how did you handle it? FYI-defense atty says he called Mr. Dawson himself and reports that defense has a valid defense.
Did you allege threats or force?
22.011(b)(5) says a sexual assault is without consent if, "the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring." This has a little bit of circular logic, but appears to fit. I can't think of any cases, but I haven't looked.
This is more of a criminal law issue. The lawyers at the main criminal message board may have more ideas.
Oh, I just realized that this is indecency, not sexual assault. The issue you have happened in a case I had some time ago, but I side stepped the issue because I also had a sexual assault in the same criminal action and dropped the indecency charge. Is that an option? Was there any penetration?
Unfortunately I don't have a sexual assault because I would do exactly that. I am alleging force. The limited case law I have found has to do with lack of consent and force in sexual assaults, so I think I am going to have to argue that it would still apply to "no consent" indecency. Any other ideas??
Isn't the defendant trying to assert the "young love defense" (no more than 3 years older than victim; no force, duress, or threat; not required to register as sex offender)? Surely, the victim would have to affirmatively consent to this contact. Would the court interpret 22.11(b) so narrowly that the fact that the victim was asleep and thus force or threat wasn't required means that the perp can claim the defense?? That seems to be an unreasonble interpretation of the legislature's intent for adding this defense, but I'm no expert on sexual assault offenses (search & seizure)
"Molest" is pretty ambiguous. What are the allegations--digital, oral, etc.?
touches genitals and breasts, no penetration. I agree that the defense is intended to protect against "young love", but the problem is the fact that consent or lack there of is not an element. I am piecing together an argument from sexual assault case law.
How about including attempted sexual assault?
Williamson County, Texas
Plead case to your advantage : if your petition states " ... engages in sexual contact with the child" 21.11(a)(1), you can argue that duress, force or threat is not a factor b/c the crime emphasises committing the offense just by contact, not by reaction from victim.
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