I have a case in which an aunt and nephew engaged in prohibited sexual conduct. They are within 1 year of each other in age (aunt is 14 and nephew is 13) and it was consensual. The aunt is the ADOPTED sister of the nephew's mother.
It is clear that the aunt could be charged under 25.02(a)(5).
However, while the nephew would normally be charged under 25.02(a)(3) it appears to be a crime only if the aunt was of the whole or half-blood. In this case the relationship is by adoption. Thus, it appears that the nephew is not in violation of the statute.
Am I missing something?
[This message was edited by Jay Johannes on 07-14-04 at .]
Posts: 160 | Location: Texas, USA | Registered: July 11, 2001
Reading 25.02(a) 1-5, all of them explicitly say "or by adoption" except for 2 and 3. It seems that the phrase was inserted to emphasize that 1,3,and 4 applied to those persons who were adopted whereas it does not to 2 and 3. I don't think you can charge her in this case under 25.02(a).
[This message was edited by Markus Kypreos on 07-14-04 at .]
Ok, here I am on my soap box. The 14 year old can be charged with Aggravated Sexual Assault because her victim is 13. The 13 year old can be charged with Sexual Assault because his victim is 14. However, the 13 year old can assert his defense of 22.011(e). But, this seems so extremely harsh to the aunt. Is anyone arguing that the 13 year old didn't know what he was agreeing to? Is he a mental deficient? If she is guilty, so is he under law of the parties. He encouraged it, provided the opportunity, participated in the crime. After working these types of cases as a prosecutor, I think we should charge the juvenile also (IF, AND ONLY IF, it was in fact a consensual act between the parties) under law of the parties.
May I suggest not charging the 13 year old with sexual assault under the law of parties. Yes, 22.011(e) is a defense. They both consented. You may say they lacked the ability to consent, but at the very least, his aunt was not more than 3 years older than him and technically he is the victim here.
Who is responsible? Probably both. You have a 14 year old girl and 13 year old boy who engage in intercourse. They consented. Neither of them should have done it, but at the same time, a sexual assault charge, in my opinion, is harsh. I belive the correct route is to charge the aunt with Prohibited Sexual Conduct.
[This message was edited by Markus Kypreos on 07-15-04 at .]
why just the 14 year old aunt? Is she arguably any smarter or street wise than the 13 year old boy. They both participated. Just because one is younger does not necessarily equate to a (1) lower intelligence, (2) lower emotional intelligence, (3) inability to refuse in this situation, (4) lower culpability in this situation, or (5) in a legally favorable position. I think if charges go, both should be charged.
Would it matter if their birthdays were only a few days apart?
What if he was 13, she 14 but they only 15 days apart in age, the event happening right between the birthdates?
If you charge the 14 year old with Agg sex assault, you're going to have to have a hearing on registering as a sex offender. Sureyou can defer, yes there are options not to require her to register, but consider the very dramatic consequences on the older of the two.
The difference between the two would have to be significant and there would need to be something that made a distinction for me to be comfortable charging Agg Sex Assault and only charging the 14 year old.
Interesting Note: I don't know if I'm being sexist or not. I can't be sure I'd give the same answer if the older person was male.
Surely you are not suggesting that some issues should be out of the reach of the DA and a Grand Jury! That sex between two consenting teenagers should be just that?
I have a client who is a doctor (civil case). He does his tour of duty at the planned pregnancy center (Family Planning Clinic, or whatever they are calling it this week). He has told me that if a 13 year old girl comes in for birthcontrol, he is legally obligated to treat her, and cannot turn her away (same with a 14 year old girl). So the law lets us give female's of a non-consenting, "tender" age, birth control. However, the same law does not recognize their ability to consent to the sexual act, (not all of them are in there getting birth control to control their acne), in fact the law tells them they are not of an age to consent. What are we telling the kids? Well, we are saying that as long as their is no "screaming victim" (most cases it is a really pissed off parent), then responsible sexual conduct is ok?
So, it is OK to be responsible at 12 or 13 years old and get birthcontrol for your sexual antics, in fact, I think we get federal or state funding for it. But if you have sex at 12 or 13, we are going to charge the guy that has sex with you because ------ even though you can get birthcontrol to prevent pregnancy legally, you cannot legally consent to sex. Great consistency.
I am of the belief that once we start indicting and charging the girls under "law of the parties", we may see the deterrence we are looking for!!!!!!!! Imagine telling the really put out parent that their little angel encouraged the crime, so she is guilty as a principal and she will have to register as a sex offender also.
Actually, I never suggested that either one of the juveniles should be charged with any flavor of sexual assault. Under these circumstances, charging one with aggravated sexual asault and the other with sexual assault would seem to be illogical and probably unjust under these circumstances.
The variable that seems to have disappeared from this thread is the fact that the juveniles (at least the aunt) engaged in delinquent conduct regardless of their ages by virtue of the fact that our legislature has deemed it improper for close family members to have sex with each other. I believe most people agree with the legislature on that one.
What prompted my original post was that my choice seemed be delinquent conduct for her and nothing for him. I was simply trying to figure out why the law says he can sleep with his aunt but his aunt can't sleep with him? Assume he was 16 and she was 15 . . . he still has not engaged in prohibited sexual conduct but she has.
At what age does this conduct become the crime described in the 25.02 v. simply inappropriate behavior?
Aside from all of that, it appears that there are now more allegations that she has had sex with other less age approprite people so we'll see where that leads us.
Posts: 160 | Location: Texas, USA | Registered: July 11, 2001
Jay, I agree with you. It's difficult because if you had the same situation without the added fact that the girl is an aunt by adoption, would you charge her? Probably not and here lies the problem because she is guilty under 25.02, but is that why the law was created? Again, probably not...I don't think the legislature, when they included "parent's brother or sister of the whole or half blood," intended to create a law which makes it a crime for CHILDREN who become aunts by adoption and then subsequently sleep with their new sister's or brother's daughter or son. I would be very surprised if this even came up in the floor discussion.
I don't know the facts of the case and you mentioned there may be other incidents, but for me, the bottom line is that a 13 year old boy and a 14 year old boy engaged in consensual intercourse and essentially, because she was adopted, she is guilty of a 3rd degree felony. I don't like that and I know I sound like a defense attorney here, but I'm just not buying it. This is why there is prosecutorial discretion...for cases like these. Just my two cents. Good luck.
Yes, a hearty 10 points to the prosecutor that suggest that this screams out for DISCRETION. I had a boss once, as a prosecutor, that really believed in the power of that. He was always right.
Jay, I suppose it is obvious the legislature assumed that the brother or sister of one's parent would be quite a bit older than the person it was trying to protect (and not a child herself) and for that reason felt justified in adding "by adoption" to (a)(5). Since the adoptive situation almost never involves the genetic problems this statute was also designed to address, I think unless you wanted to say she engaged in aggravated sexual assault (which is really the more serious offense involved), you could easily say her delinquent conduct should not be prosecuted as such. Like it or not that 14th birthday is a pretty important one- though under the facts of any particular case it seems not to make complete sense. And actually I do not think the law says anyone under 14 should be sleeping with anyone else. We just choose not to make them criminally responsible.
