In an upcoming trial, the respondent has raised the issue that TPC 22.021 is unconstitutional as applied when prosecuting a juvenile for sexually assaulting a victim under age 14 when the respondent is also under 14 and the petition does not allege lack of consent. In my case, the 13-year-old respondent forcibly had sex with the 12-year-old victims.

Aggravated sexual assault of a child does not require the element of lack of consent and the respondent does not have the defense of their ages being within 3 years, as in Sexual Assault [22.011(e)] and Indecency with a Child [21.11(b)].

Does the respondent have an equal protection claim? Since, in an extreme example, a 13-year-old has consensual sex with another 13-year-old - could you prosecute one? (If so, which one?) Obviously, prosecutorial discretion would sort it out, but does it create a constitutional problem? Would it be better to add the lack-of-consent element regardless of the statute? I've looked for guidance in state and federal case law with no luck.

Shannon,

Check out In re T.D.P. out of the Houston Court of Appeals (14th District). It is not published. The Lexis cite is 2003 Tex. App. LEXIS 5642, and the docket number is 14-02-00984-CV. The appellant was a boy who was tried for Aggravated Sexual Assault of a five year old child committed when appellant was 13 years of age. He was convicted of Indecency with a Child, a lesser included offense. It's not quite what you want because appellant did not raise the equal protection argument, but it might be helpful.

Janette Ansolabehere