Senator Florence Shapiro has filed SB 78 that creates the new offense of Continuous Sexual Abuse. Rep. Jerry Madden has the companion bill HB 436 in the House.

Recently, Texas Court of Criminal Appeals Judge Cathy Cochran, in a concurring opinion, did an excellent job of explaining why the new law is needed:

It is a truism that bad facts make bad law. The facts in this case are bad. They are also depressingly familiar: a young child is repeatedly molested by an authority figure-usually a step-parent, grandparent, uncle or caregiver; there is (or is not) medical evidence of sexual contact; and the child is too young to be able to differentiate one instance of sexual exposure, contact, or penetration from another or have an understanding of arithmetic sufficient to accurately indicate the number of offenses. As in this case, "he did it 100 times."

The real gravamen of this criminal behavior is the existence of a sexually abusive relationship with a young child, male or female, marked by continuous and numerous acts of sexual abuse of the same or different varieties. This scenario plays itself out in Texas court-rooms every day.

Yet, as is evidenced by this case, current Texas law does not easily accommodate the prosecution of generic, undifferentiated, ongoing acts of sexual abuse of young children. This is because our penal statutes are intended to prosecute a person who commits one discrete criminal offense at one discrete moment in time. Our criminal procedures are intended to protect a defendant from being tried for being a "bad" person who acts in conformity with a criminal character propensity.

...

We are headed for a train wreck in Texas law because our bedrock procedural protections cannot adapt to the common factual scenario of an ongoing crime involving an abusive sexual relationship of a child under current penal provisions. The general legal principles are being stretched beyond recognition and common logic in what appears to be a futile attempt to accommodate both (1) the defendant's rights to a specific verdict for one specific criminal act and (2) the simple fact that the criminal conduct at issue is not really one specific act at one specific moment. Our bedrock legal doctrines are becoming ever more convoluted, contradictory, and in-consistent as a result. Worst of all, these convolutions, contradictions, and inconsistencies affect not only Texas law as it applies to the present fact scenario, but they leak out into other factual scenarios and the trial of other offenses, affecting trials of all varieties.

Perhaps the Texas Legislature can address this co-nundrum and consider enacting a new penal statute that focuses upon a continuing course of conduct crime-a sexually abusive relationship that is marked by a pattern or course of conduct of various sexual acts. Such a statute would have advantages and disadvantages for both the prosecution and defense, but it might well assist in preserving our bedrock criminal-procedure principles of double jeopardy, jury unanimity, due-process notice, grand-jury indictments, and election law.

Sounds like a good idea. Seems this law would apply to mostly every Agg Sex Assault case as usually the abuse is ongoing for 90 days or more.

Just click on the link for SB 78 present in the opening post, and you can read the bill.

Thanks JB. I just clicked on the link!

It's good to see the legislature responsive to the CCA and not just as a result of the State's cases going down the tubes.

JAS

California and New York already have similar laws. They passed them because their Supreme Courts had run into the same problem expressed by Judge Cochran. Subsequent litigation over the new penal law has shown it is a good solution for everyone.

I like the idea. It is true that kids just don't track time that well nor do they keep journals of specific instances of sexual abuse. I am concerned, however, about making it a 25-life with flat time credits. That takes away a tremendous amount of discretion for those of us trying to deal with weaker cases.

Prosecutors retain lots of discretion under this bill. The prosecutor can always proceed with a lesser-included offense, taking the punishment range to first or second degree felony. That lesser also would open up probation.

Or, a prosecutor can choose to proceed with the more typical single incident offense.

All of that can be included in the indictment, leaving all the options open before and during trial.

Granted, the 25-life punishment range removes probation eligibility, but that seems appropriate if the defendant engaged in an ongoing pattern of sexual abuse that lasted at least 3 months against a child under the age of 14.

Pretty good debate on the offense of continuous sexual abuse taking place right now in the Texas House. If you want to watch, go to http://www.legis.state.tx.us and watch the House floor debate.

Rep. Riddle's HB 8 has been amended to include HB 436, which covers the new offense of continuous sexual abuse.

The bill, as amended, passed on 2nd reading. One more reading, and then on to the Senate. Go to the legislative web site and read the amendments and bill as it now exists. If you have concerns or opinions, now is the time to begin talking to your Senator.