Capital Murder is the most serious offense in Texas. The crime of Continuous Sexual Abuse of a Young Child or Children is arguably the second.
A person commits the offense of continuous sexual abuse of a child if:
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.
For purposes of this offense, an “act of sexual abuse” includes acts involving molestation, penetration, and compelling sexual performance. The definition also includes intent crimes that did not result in actual sexual abuse, such as burglary with intent to sexually abuse the victim and kidnapping with the intent to abuse the victim sexually.
The offense of Continuous Sexual Abuse of a Child is a first degree felony. All first degree felonies are punished from 5 – 99 years in prison, and if the jury assesses a sentence of less than 10 years, the sentence can be probated. However, both Capital Murder and Continuous Sexual Abuse of a Child are the two crimes where probation is not an option. An offense under this section is a felony of the first degree, but punishable by a term not less than 25 years or more than 99 years. One reason for this enhanced punishment is that this statute focuses on children under 14. The general offenses of indecency with a child by contact, indecency with a child by exposure, and sexual assault apply to minors under 17. The legislature could have enhanced the punishment range based upon the child's age and number of acts alleged in a federal sentencing guidelines-type matrix. Given how confusing it is to track the age ranges and affirmative defenses in each statute, we anticipate that the Penal Code will eventually be rewritten accordingly.
Instead, with the enhanced mandatory minimum of 25 years, the legislature leapfrogged the charge enhancement and created a new baseline for handling cases of repeat allegations. (Note the emphasis on allegations, because there is no requirement of proof or prior conviction as a prerequisite to indictment. This offense is an extremely powerful mechanism that allows the State to effectively avoid the limits on introducing character evidence or extraneous conduct that would otherwise be deemed more prejudicial than probative. Furthermore, given the relaxed requirements of jury unanimity [link to sex offenses -evidentiary hurdles/problems/whatever page] the burden of proof in a continuous sexual abuse of a child case is less than unanimous while the punishment range is greater than 99% of all felonies. It is a dangerous mixture for an innocent person.)