Sexual Performance by a Child
The crime of sexual performance by a child is more about criminalizing performances than sexual conduct. The term “sexual performance” includes videos, photographs, and live acts such as dancing.
A “performance” must be: 1. of a child (under this statute a person under the age of 18, not 17 – the normal age of consent in Texas), and 2. it depicts that child’s genitals or any portion of the female breast below the top of the areola. Any adult who either employs, authorizes, or induces the child to perform in such a “performance” may be subject to prosecution under this law. Likewise, performances that depict sexual conduct by a child—such as intercourse, masturbation, etc.—can also become the basis of a charge under this law.
Even in cases where the child does not actually participate in an act of sexual conduct, the performance can be the subject of a prosecution where it simulates such sexual conduct. If the performance suggests that the child depicted would be willing to engage in sexual activity—as with certain sexually suggestive poses—then an adult involved can be charged with this crime.
A person who is found guilty under this section of the law can be charged with a second degree felony, punishable by between 2 and 20 years in prison and a possible fine of up to $10,000. Where the child is under the age of 14, it is a first degree felony punishable by between 5 and 99 years, or life in prison and a possible fine of up to $10,000.
Additionally, the adult who contributes to the manufacture of the performance can also be prosecuted. The concept of “manufacturing a performance” is somewhat confusing, but examples include recording video, taking photographs, and other means of committing the performance to some tangible medium. To manufacture is to make the performance a product.
Once the performance has been “manufactured,” any person who helps to promote the performance can also be charged with this offense. By promote, the government can mean either the actual “manufacture,” or the following numerous acts:
- Procuring, or purposefully taking possession of the material;
- Issuing the material to another;
- Selling the material to another;
- Giving the material to another;
- Providing the material to another;
- Lending the material to another;
- Mailing the material to another;
- Delivering the material to another;
- Transferring the material to another;
- Transmitting the material;
- Publishing the material;
- Distributing the material;
- Circulating the material;
- Disseminating the material;
- Presenting the material;
- Exhibiting the material; or
- Advertise or offer or agree to do any of those things with respect to the material.
This list may seem repetitive and redundant. And that is because it is. Because of Texas’s voters’ demands to protect children from being exploited, lawmakers have criminalized a laundry list of acts relating to sexual performance by a child. It is important to note that many of these terms can also refer to electronic transfers, such as email attachments and use of file-sharing websites.
For the individual accused of either producing, directing, or promoting a sexual performance by a child, the offense is a third degree felony punishable by between 2 and 10 years in prison and an optional fine of up to $10,000. As with the other section of the statute, the punishment is more severe where the child is under the age of 14, as the offense is classified as a second degree felony punishable by between 2 and 20 years in prison and an optional fine of up to $10,000.
Defenses to Sexual Performance by a Child
Because the law is especially strict in areas where it attempts to protect children, there are very few legal defenses for child sex crimes, aside from proving that the act never occurred. In the case of Sexual Performance by a Child, the law provides for three affirmative defenses. An affirmative defense is one in which the accused admits to the act, but also presents evidence of additional facts which provide him with a legal excuse.
- Defendant and child were married at the time. As with sexual assault of a child, it is a defense that the defendant and the child were married at the time of the performance. This is not a defense where the defendant and the child married after the alleged performance.
- Conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose. Because the definition of the statute could implicate certain educational materials for doctors, health service providers, and law makers and enforcers, the government has created a defense where the performance was for this purpose.
- Defendant is not more than two years older than the child. This is similar to the “Romeo and Juliet” defense against sexual assault of a child. For better or worse, the proliferation and affordability of smart phones has led to the common practice of men and women sending illicit photographs to one another. Many teenagers these days have smart phones and also send illicit photos to each other. This defense is meant to protect “high school sweethearts” from prosecution under this statute.
Paul Darrow is a former sex crimes prosecutor that has both prosecuted this crime and defending it in trial. It is important to hire aggressive and zealous representation when charged with such serious crimes. Call us today to get started effectively defending yourself against such criminal charges.