Beginning September 1, 2007, prosecutors have a new offense to charge: continuous sexual abuse. There are lots of things to learn about how to charge and prosecute this crime. I thought this would be a good place to get talking about it.

The new offense is contained in HB 8, the bill otherwise known as Jessica's Law.

The punishment range will get your attention: 25-99 or life for the First Conviction. And no parole or probation (deferred or regular, judge or jury). That's quite a smack in the head.

Gee, and I thought you were going to talk about the Confederate States of America. Does all of the conduct have to take place after Sept. 1, or only the last event? Does this now take the distinction of Texas' second worst crime (after captial murder)?

It's an interesting question as to where CSA falls in the seriousness of crimes. Before September 1, 2007, there was only one capital felony (where the penalty is life or death): capital murder. (OK, there is actually some sort of capital felony for treason or some such thing in some Code outside the Penal Code, but who counts that?)

Starting 9/1, there is a new capital felony: repeat commission of a "super" aggravated sexual assault of a child. If a defendant commits AGAC and the offense includes certain enhancing factors (e.g., child is under 6 years, deadly weapon, death or SBI), then the initial conviction is 25-99 or life (just like CSA). But, for the subsequent conviction, the punishment is life or death. That doesn't happen with repeat CSA. For your second CSA, its life in prison.

So, I guess I would have to say, at least in theory, that SAGAC is the second most serious offense, after capital murder.

As to your other question, all the elements must be committed on or after 9/1/07 to use the new law.

Did you know there is no parole -- none, not any, bupkus -- for sentences for CSA or SASAC?

The elements of a CSA offense include two or more acts of abuse against a child victim. The offense expressly permits the prosecutor to name more than one victim. That means the defendant could commit one act of sexual abuse against two separate victims and qualify for prosecution under CSA.

Query: could the prosecutor in County A allege acts of sexual abuse that occurred in County A and in any other county in Texas?

Consider the language in State v. Weaver, 982 SW2d 892, in coming up with an answer:

The general venue provision of Article 13.18 provides that if "venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed." When several thefts are aggregated into a single offense under Section 31.09, the proper county for prosecution under the "plain" language of Article 13.18 is any county in which the individual thefts or any element thereof occurred. Cf. Wood v. State, 573 S.W.2d 207, 210-11 (Tex.Cr.App. 1978) (under Article 13.18, when elements of an offense are committed in more than one county, venue may be established in either county). Applying the "plain" language of Article 13.18 to this case, Harris County is a proper venue for prosecution of all the thefts aggregated into the single offense alleged in the indictment."

CSA brings some new approaches to the application of parole and probation. A defendant is not eligible for probation (deferred or regular, from a judge or a jury). That's right, folks, it's all or nothing.

And once a defendant gets prison time, he faces the same problem: no early release. There is no parole for a CSA prison sentence. He serves day for day.

You will need to adjust the parole instruction in the jury charge to reflect that no parole status, as the Leg failed to amend the statutory instruction.

So, no probation, no parole. Minimum 25 years.

Anyone have any thoughts on what, exactly, the defendant will be volunteering to take?

I'm still forming comments, but I know we've all had cases where these laws would have been highly appropriate.

The use of this statute obviously depends on the strength of the state's case. It would be difficult to obtain a conviction with a jury knowing there was a 25-year minimum sentence if you had a young child and a "swearing match" case. But, if you had a confession or a tape recorded admission, it would be wonderful to use this statute. I think there will be some serious plea bargaining by those charged with this crime. (My compliments to JB and Shannon, who worked with the Lt. Governor and others to make the changes necessary to accommodate prosecutors' concerns on this bill.)

JB, can you get a magistrate's order for emergency protection under CCP Art. 17.292 for a CSA offense?

PC 21.01 (CSA) was not added to CCP 17.292. However, PC 22.011 (sexual assault) and 22.021 (agg. sexual assault) WERE added to that article this session, so an emergency order can be issued for those cases.

In a continuing sexual abuse case, do all the offenses have to occur after the 2007 enactment date of the statute?

Yes. Every act of sexual abuse listed must have occurred on or after the effective date of the new law. That is true, as a matter of constitutional principle (no ex post facto laws) for all newly created crimes. In addition, that is the legislative language that appears at the end of any bill writing a new penal law:

SECTION 3.01. (a) Except as provided by Subsections (b) and (c) of this section, the change in law made by this Act applies only to an offense committed on or after September 1, 2007. An offense committed before September 1, 2007, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For the purposes of this section, an offense was committed before September 1, 2007, if any element of the offense occurred before that date.

Thank you Mr. Bradley!

Sara -- there's nothing that says you can't have a CSA count in your indictment (listing all acts that happened after 9/1/07) and additional counts for offenses that predated 9/1/07. I've done that.