Section 54.045(e) sates that a det. petition on agg. sexual assault cannot be filed unless the juvenile is more than three (3) years older than the victim. Dawson's says if there was force or threats used to induce the intercourse, then this exclusion does not apply, however gives no case law supporting this statement. Is anyone aware of case law that makes this point? I've searched but cannot find anything. thank you!
My understanding is that the 3 year age difference is an affirmative defense when there was consent on the part of the alleged child victim (and he/she is 14 or over). I think if your alleging force or threat, then there was no consent and the level of threat/force or use of weapon, etc. is going to determine whether it's sexual assault or aggravated sex assault. The fact that the victim was a child no longer matters since your saying there was no consent, unless victim under 14.
Nevermind. I just re-read what you asked and then read 53.045(e) and saw what you saw. I now eagerly await the same answer as you. I'm especially confused by the 22.011(a)(2)(B) part requiring more than 3 years difference. It's still agravated, but you can't seek determinate sent.?
You can still file an agg. sex assault, you just can not file it as 22.021(a)(1)(b) you have to have the elements to file it under 22.021(a)(1)(a) or with something other than age for aggravation which means no consent/threats/weapon/injury/drugs as Dawson indicates.
In other words no determinates on agg. sex cases < 3 years difference just due to age with consent irrelevant like you can on an adult, but determinates OK if no consent. That way we don't have determinates filed on a 14 year old for having "consensual" sex with an 13/12 year old.
[This message was edited by Stacey L. Brownlee on 03-08-07 at .]
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